On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) issued new guidelines addressing assistance animals that individuals with disabilities may request as reasonable accommodations. They replace HUD’s 2013 guidance on service and assistance animals.
FOR ASSISTANCE ANIMALS
Assistance Animals Defined. Under the Federal Fair Housing Act (FHA), assistance animals are trained service animals or untrained animals that perform tasks and/or provide emotional support (“support animals”). Assistance animals are not considered pets and must be allowed if the individual needs the animal due to their disability.
The number of requests to HOAs for support animals has significantly increased. One of the most common fair housing complaints that HUD receives is denial of an assistance animal. According to HUD, the new guidelines were provided “to help housing providers distinguish between a person with a non-obvious disability who has a legitimate need for an assistance animal and a person without a disability who simply wants to have a pet or avoid the costs and limitations imposed by housing providers’ pet policies, such as pet fees or deposits.”
Internet Certification. Often, individuals requesting to keep a support animal have obtained a certificate off the internet. According to the new guidelines, these internet certificates are not “sufficiently reliable” to establish that an individual has a non-observable disability or disability-related need for an assistance animal. Rather, individuals need a note from their health care professional (who has personal knowledge of the person) that confirms the disability and/or need for the support animal.
Unique Animals. Requests to keep unique assistance animals have also increased and are addressed in the new guidelines. Unique animals are those that are not traditionally kept as a pet. Traditional pets are dogs, cats, small birds, rabbits, hamsters, gerbils, other rodents, fish, turtles or small domesticated animals. An individual requesting a unique animal has a “substantial burden” of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal. Documentation from the individual’s health care professional confirming the need for the unique animal is likely required.
Best Practices. The new HUD guidelines provide best practices for documentation that can be requested to support a request to keep a support animal when the requesting person’s disability and/or need for the animal is not obvious. They should be read together with other HUD documents, including the Joint Statement with the Department of Justice on Reasonable Accommodation.
Our firm can assist associations in preparing guidelines and protocols for handling requests for reasonable accommodations.
Thank you to partner Laurie Poole for this article.
RESERVE TASK FORCE
Because Senate Bill 326 (the "Balcony Bill") implicates reserves, Robert Nordlund, CEO of Association Reserves, Inc., coordinated meetings of reserve study companies throughout California to discuss how best to address issues raised by the bill.
One of the goals of the Task Force was to create some consistency in the application of new Civil Code §5551. Members of the Task Force are:
Advanced Reserve Solutions (ARS)
Mr. Nordlund generated a written report. Following is a summary of key points from the report.
Association Reserves, Inc.
Barrera & Company
Browning Reserve Group
Complex Solutions, LTD
Foresight Financial Services
The Helsing Group, Inc.
Murray Joseph Reserve Studies
Reserve Data Analysis, Inc. (RDA)
Reserve Studies, Inc. (RSI)
SCT Reserve Consultants, Inc.
Affected Associations. Associations affected by the law are condominium developments of three or more units with balcony/deck/stair surfaces designed for human occupancy more than six feet above the ground, supported by beams, joists, columns or posts, that extend beyond the exterior walls of the building, and made of wood or wood-based products.
Deadline for Inspections. The law went into effect January 1, 2020. Associations must have their first inspection completed before January 1, 2025. The sooner inspections occur the better, since it will allow boards to begin reserving for any repairs that may be needed.
Additional Reserves Needed. Monies will need to be set aside for inspection costs. In addition, either special assessments and/or higher reserve contributions will be needed following the inspection, depending what is revealed by the inspection. Starting inspections and reserve contributions now will help reduce any significant expenses required by the bill beginning January 1, 2025.
Inspection Costs. Achieving the 95% confidence level required by the bill will be expensive. Early estimates are that most associations should expect costs in the range of $5,000 to $20,000. The cost will depend on the number of elevated structures inspected to achieve the high confidence level required by the bill. Getting those estimates now will help boards budget for the expense.
Inspection Cost Included in Reserves. Because inspection are directly related to reserves needed to repair elevated structures and because the definition of "replacement cost" includes related expenses, inspection costs can be included in an association's reserve budget.
Full Report. For photographs of different elevated structures and whether they fall under the statute, see the full report of the Reserve Task Force.
Thank you to Robert Nordlund, CEO of Association Reserves, Inc., for providing the report on Task Force recommendations.
FOR THE FUTURE
Adrian Adams will join a panel of attorneys at the Management Trust's Annual Director's Symposium. The program will be held on Friday, March 6 at the Agua Caliente Resort Casino in Rancho Mirage.
The legal panel's "Seeing Through the Fog" will discuss challenges boards face with new laws imposed by the legislature and the courts.
For more information see 2020 Vision Flier. Board members can attend this free event by sending an RSVP to Terri Jones.
Kudos #1. God I love your newsletter. -Terri G.
Kudos #2. I want to express my gratitude for CAI-CLAC’s work in serving as a counter to the excesses our legislature seems to so thoughtlessly embrace. -John W.
Kudos #3. Thank you for your great newsletter. -Patricia S.
Kudos #4. I always look forward to and enjoy your Newsletter. -Stan M.
Kudos #5. Thanks so much. I used to specialize in coverage work, but I also frequently represented common interest developments in civil litigation for one of my clients who insured lots of associations in Northern California. Every time I worked with a board or management company I referred them to your site, which I always found invaluable. I retired from active practice in early 2017, and the only thing related to my work that I still do is read your newsletter. Keep up the great work. -David B.
$75,000 Threshold. An item I believe CLAC should include in any proposed legislation is to raise the amount of assessment revenue when small HOAs have to engage a CPA to perform an audit or review. It has been set at $75,000 for decades by Civil Code §5305. Inflation is pushing small HOAs to include a couple of thousand dollars in their budgets for reviews as they cross the magic $75,000 threshold. It should be raised to $100,000+ and index it to avoid inflation creep in the future. -Philip A.
RESPONSE: Good suggestion. I will pass it on to CAI's California Legislative Action Committee.
Owner of 9 Units. I want to point out something relating to the question about the owner of 9 units who is running for the board. It should be noted that the law does not provide protection from personal liability if the director owns more than 2 units. Thanks for your wonderful work, as always! -Terri G.
RESPONSE: I'm glad you raised the issue. Very few owners of multiple units realize they are held to a higher standard than other board members when they serve on the board. Because of their ownership of multiple units, they are at risk for personal liability in excess of insurance coverage. I don't know the reasoning behind this provision, only that it exists. Following is the relevant language from the statute:
(a) A volunteer officer or volunteer director...shall not be personally liable in excess of the coverage of insurance...to any person who suffers injury, including, but not limited to, bodily injury, emotional distress, wrongful death, or property damage or loss as a result of the tortious act or omission of the volunteer officer or volunteer director if [within the scope of their duties, in good faith and not willful, wanton or grossly negligent and the association carries at least $500k for 100 or fewer units or $1M if more than 100 units]...
Management Contract. Our association does not have a current contract with our property management company. The contract is 18 years old and the person who signed it as president of our association is now deceased. Is this a valid contract since the current president has not signed a new one? -Patricia S.
(e) This section shall only apply to a volunteer officer or director who... is an owner of no more than two separate interests... (Civ Code §5800.)
RESPONSE: If the contract has a provision that allows it to automatically renew each year, then the agreement is valid even though it's 18 years old. If the board wants a new contract, it will need to give notice of non-renewal to the management company within the time period specified by the contract. The board can then renegotiate the agreement with your current management company or enter into one with a different company. The board should have legal counsel review the agreement and advise the board on how best to proceed. [NOTE: boards should always have all contracts reviewed by legal counsel when entering into or terminating them.]
Flower Boxes. I was hoping for some clarification on SB 326. Do elevated structures "designed for human occupancy or use" include flower boxes? -Heike
RESPONSE: Even though flower boxes are clearly designed for human use, it fails the statute's definition of load-bearing components:
...those components that extend beyond the exterior walls of the building to deliver structural loads to the building from decks, balconies, stairways, walkways, and their railings, that have a walking surface elevated more than six feet above ground level, that are designed for human occupancy or use, and that are supported in whole or in substantial part by wood or wood-based products. (Civ. Code §5551(a)(3).)
Flower boxes can still be a problem if they hang over balcony railings or outside windows. When filled with soil and watered, they are subject to dry rot and can eventually fail. If they go crashing to the ground and injure someone, lawsuits will fly.
Unless your CC&Rs specifically state that owners are obligated to maintain, repair and replace flower boxes, the association is responsible for them. (Civ. Code §4775(a)(3).) That means they can become a source of potential liability. Accordingly, associations should inspect and repair flower boxes as-needed or amend their CC&Rs to assign that responsibility to owners.
Vehicles Only. Concerning ADUs, our rules state that garages are to be used only for vehicles. Will we have to amend rules to say something about allowing an ADU in the garage? -Linda H.
RESPONSE: No, you don't need to amend your CC&Rs. Restrictions in CC&Rs and rules that require owners park in their garages are automatically voided for those owners who convert their garages to ADUs. They still apply to all other owners, just not to garages that become apartments.
The ADU statute is so problematic, that boards will need guidelines on how to handle ADU requests. Our firm has already drafted ADU rules for a number clients. If your board would like more information, contact us.
Forced Housing. Our association has a large greenbelt space we call "the meadow." Given California’s push for more affordable housing and the recent legislation to change R-1 zoning and restrict local control over R-1 zoning, could the government require housing on our meadow? Can our HOA be required to allow multiple housing units on the existing lots within our community under the new changes to R-1 zoning? -Richard B.
RESPONSE: I certainly hope not. It would amount to a "taking" of the association's property. The new accessory dwelling unit (ADU) laws will create a huge mess. It strips controls from associations, and will make parking unmanageable, burden association amenities, and depress property values. The Golden State is becoming less golden with each new piece of legislation.
Homeless Encampments. It is more likely your meadow will become the site of a homeless camp. If so, the association may be obligated to remove the homeless and clean up the encampment at association expense. Governmental agencies are, at best, irrational when it comes to the homeless. They have done very little to address the problem. However, they are quick to bill homeowner associations for their own dereliction of duty.
Bill for Camp Cleanup. Last month, an association in the San Francisco Bay Area was charged $20,000 to clean up a former homeless camp that had been discovered in a ravine. That portion of the ravine turned out to be the association's property. Even though the association did not create the homeless problem, had no control over removing the homeless, and had no way of knowing the encampment existed in a heavily wooded corner of the association's property that was unmarked with fences, they were hit with a $20,000 bill.
Pleas to Law Enforcement. Many associations have complained that pleas to law enforcement about the homeless sleeping outside their gates, drug use, public urination and defecation, and assaults have gone unheeded. If you see homeless tents springing up in your meadow, you should immediately notify your association's legal counsel to start making demands on your city and county officials.
The Number of Rentals? Can planned developments in California limit the number of houses that are considered rentals? -Denise Z.
RESPONSE: This is another problem with ADUs. If your CC&Rs limit the number of houses that can be rented, your restriction is still valid, but only as to existing houses. For example, CC&Rs might state that no more than 20% of the houses can be rentals. However, the restriction does not apply to ADUs. That means you can have the absurd result where only 20 out of 100 houses can be rented but all 100 can convert their garages into apartments--which gives you 120 rentals (and the parking nightmare that goes with it).
MORE SB 323
The following is an email from a homeowner to Marjorie Murray about SB 323.
Dear Marjorie: Please help me understand how you intended SB 323 to make peoples’ lives better and who, specifically, you were intending to help. Perhaps you can make me a believer in the good that your organization endeavors to achieve. Respectfully, Robert C.
RESPONSE: Let me know how she responds. I think Marjorie believes her legislation somehow helps homeowners. She once cornered me as I was about to speak to a room of managers at a law seminar in Northern California. She berated me for calling her legislation a train wreck. Out of respect for Ms. Murray, I no longer call it a train wreck.
Nasty Grams. Getting lots of nasty grams from our lovely Marjorie Murray! I am sorry she is so upset that we don’t want SB 323. She tells me it is for the good of homeowners. Isn’t that what I am, a homeowner? Unreal. Her argument is sad. -Pam S.
Stunned! I confess I am stunned at the complexities and gnarly problems due to SB 323! It has proven to be both an enormous headache and a gigantic source of fees for HOA attorneys! Certainly that was never the intent of the legislature–or was it?? -Elaine J.
Disincentive to Volunteer. Our HOA is relatively small. We do not utilize a management company or employees. For the past 32 years our volunteers have successfully managed our association at no taxpayer cost. With the day-to-day workload it imposes on our volunteers, we really, really do not have the excess management capacity to deal with the sort of entirely inappropriate, pointless, time-&-money consuming regulation represented by a one-size-fits-all, poorly-written kludge like SB 323. The total impropriety of the requirements being imposed on us cannot be overstated. The entirely unwarranted imposition of unnecessary administrative costs and hours of work by our volunteers acts as a disincentive to the volunteerism on which a small HOA depends. -John W.
Meaningless Regulatory Compliance. I work a job that is more than full time and spend additional hours each month serving on the board for my HOA. I have seen firsthand how SB 323 has added burden and expense to our way of life. We now spend even more time and money on meaningless regulatory compliance. Our association has had no difficulty using our accounting firm as the inspector of elections. It's included in their contract. Under SB 323 we are now required to hire another vendor to source, contract with, negotiate, manage and pay. -Robert C.
Four-Unit Association. The governing documents of our four-unit condo building make no provision for elections. Rather, all four owners are required to be board members with a rotation system for the office of president. Does SB 323 pertain to our situation? I’m hoping this is the one good thing about a really small association. -Dee F.
RESPONSE: You're lucky. From what you described, you don't have to comply with SB 323.
Automatic Amendment? Do you happen to know if incorporating SB 323 is an automatic amendment to our bylaws? I was told by the management company that no vote needs to be taken, just ratified. Any advice to navigate this situation would be appreciated. -Jennifer Y.
RESPONSE: No, it's not an automatic amendment but it's the equivalent--it makes unenforceable any provisions in your bylaws that are contrary to the mandates of SB 323. At some point, you will want to amend your bylaws. At the moment, however, you do need to amend your election rules. If you narrowly update them to comply with the strictures of SB 323, the rules can probably be approved by the board without being distributed to the membership for a 28-day review. If, however, the board includes any discretionary changes to the rules, they must go through s 28-day membership review followed by a vote of the board. If you are unsure how to proceed, check with your association's legal counsel.
NOTE: Another one of the many problems with the dumpster fire known as SB 323 is the prohibition against amending election rules less than 90 days before an election. (Civ. Code §5105(h).) With the separate mandatory 28-day notice period for membership review of proposed rule changes (Civ. Code §4360(a)), the waiting period for updating election rules is extended to 118 days (4 months), since the change cannot be approved by the board until the end of the 28 days.
Hopefully, this is another problem CLAC can persuade legislators to fix--elimination of the 90-day prohibition against election rule updates.
Investor Candidates. Can absentee owners be on the board--especially if they are investors? -Gloria D.
RESPONSE: Yes, investors and absentee owners can serve on the board. Only rarely have I run across bylaws that require directors reside in the development. That requirement is no longer valid. I don't recall ever seeing a provision prohibiting investors from serving on boards. If they exist, such restrictions are also invalid.
CORRECTION. Last week I responded to a question about elections by acclamation. I noted that SB 323 only applied to associations with 6,000 or more units and hoped the legislature would extend acclamation to all associations. Unfortunately, I hit "SEND" before finishing my thought. I intended to add that elections by acclamation can be used if specifically provided for in an association's governing documents--something I've advocated for years. However, not everyone agrees with me. I discuss the split in opinion on our website. See Uncontested Elections.
This is another in the long list of fixes that need to be made to SB 323--elimination of any ambiguity that all associations have the right to elections by acclamation when the number of candidates is less than or equal to the number of open seats.