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  California's Leader in Community Association Law June 13, 2021
HOW TO SAFELY
REOPEN FACILITIES

On Tuesday, June 15, California is lifting most, but not all, COVID restrictions. Associations can reopen their facilities but still need to follow applicable Health department directives.

Proof of Vaccination. Those who are fully vaccinated will be allowed to use the association's gym and other facilities as they did before the State went into lockdown. Those who have not been vaccinated will be required to continue wearing masks in outdoor common areas where physical distancing cannot be maintained, as well as in indoor common areas. It means associations still need rules to comply with these requirements.

This, of course, creates a problem of monitoring who has been vaccinated and who has not. Posting a guard at the entrance of the clubhouse and gym and demanding proof of vaccination is not something I recommend. I prefer signage that the unvaccinated wear masks, and then rely on the honor system.

Sanitation Requirements. The State will continue to require sanitation standards be followed for pool areas, restrooms and gyms. Boards will need to review their County's standards and decide whether they can meet them or not. That means some facilities might continue to be closed.

Liability Waivers. To reduce potential liability, more than a dozen states adopted COVID immunity legislation. Unfortunately, California did not. That means associations might consider the continued use of liability waivers until the pandemic is officially declared over.

Guests. Another consideration for boards: should they prohibit guests from using their facilities so as to maximize their availability for residents? What about trainers? Should they be allowed? Should they be required to sign hold-harmless agreements?

RECOMMENDATION: Even though the State is reopening, we are not yet at pre-pandemic levels. Because California has not adopted legislation protecting businesses (and associations) from COVID liability, and because insurance policies routinely exclude coverage related to communicable diseases, boards should consult legal counsel and decide how best to reopen their facilities without incurring liability.

Thank you to attorney Megan Hall for her contribution to this article. Megan has been tracking and reporting each week on the changing requirements related to COVID-19.

 
LEVY ASSESSMENTS ON
ACCESSORY DWELLING UNITS?

QUESTION: Our HOA has an owner who built an ADU. It has a separate address. Are we allowed to charge an additional set of HOA dues for the ADU? Appreciate any insight you can provide. –Stacie C.

ANSWER: I know it's tempting but you can't levy assessments on an ADU — it is located on a lot that is already being assessed. You can, however, charge the owner a reasonable fee for the increased load his renter puts on your association's amenities, gate operations, streets, etc.

Short-Term Rentals. The courts addressed this issue in Watts v. Oak Shores. Oak Shores is a large planned development located on a lake. Many owners rented out their homes on a short-term basis to people who went boating on the lake. Renters would bring their suitcases, a power boat, and other water toys when they took possession of short-term rentals.

Increased Load on Amenities. Because so many owners rented out their homes on a short-term basis, it significantly increased traffic on weekends and holidays, and imposed an increased load on front gate staff and the association's roads. In addition, renters made greater use of the amenities than owners, caused more wear and tear on the docks, created more rules enforcement issues, and left behind trash that maintenance crews had to pick up. To offset the increased expenses, the board imposed a $325 annual fee on landlords.

Lawsuit Filed. Homeowner Ken Watts sued, claiming the board had no authority to levy the fee and, if they did, they had to calculate an exact amount for each rental instead of charging a flat fee on landlords. He cited Civil Code §1366.1 (now §5600(b)), which prohibits an association from imposing or collecting "an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied." After a lengthy trial, the court disagreed with Watts and ruled in favor of the association. Watts appealed.

Court of Appeals. The Court of Appeals upheld the lower court's decision. The Justices commented that other association members should not be required to subsidize Watts's vacation rental business. They decided the board could impose a reasonable fee to offset expenses associated with short-term renters.

The Court also ruled that the fee levied by the association did not have to be exact. All that's required is a reasonable good faith estimate of the fee necessary to defray the cost for which it is levied. To read the decision, see Watts v. Oak Shores.

Long-Term Renters. If an owner rents his house to a long-term renter, charging the owner a fee would not be justified, since a long-term renter would be no different than the owner living in the house. It does not increase the load on an association's facilities. Short-term renters and ADUs, however, are different.

Impact of ADUs. Developments are designed to handle particular numbers of people and vehicles. Adding ADUs exceeds those designs. With each ADU built in an association, it adds more people using the clubhouse, pool and gym, more cars passing through the gates, less available parking, more guests and even more cars, more rules enforcement issues, more trash being generated, etc. Per new ADU laws, each home in a planned development can convert their garage into an ADU, plus build one in the back yard. That means there can be three families per lot where previously there was one.

RECOMMENDATION: If boards want to charge owners a fee for their ADUs, they need to put pencil to paper and arrive at a number they can justify. Oak Shores used a CPA to help management arrive at a fee they could defend in court. Once boards formulate a reasonable dollar amount, they can impose the fee with a rule change. It does not require a vote of the membership.

 
 
Federal Update. The FDA issued Press Release re: Stop Using Innova Sars Cov-2 Antigen Rapid Qualitative Test.

CDC updated the following guidance on: Older Adults and Travel Recommendations.


Statewide Update. The State will officially reopen on June 15 according to the following guidance: Beyond the Blueprint.

The State issued 6/7/21 New Summer Programming and School Reopening Data.

The CDPH issued new Face Covering Guidance Effective 6/15/21. This guidance is intended to align with the CDC’s guidance.

The CDPH issued 6/7/21 Updated Testing Guidance.

The following Counties have changed Tiers: Alameda County (Orange Tier to Yellow); Napa County (Orange Tier to Yellow); Stanislaus County (Red Tier to Orange).

Press Release from California Occupational Safety and Health Standards. Board voted on June 9 to withdraw revisions to Cal/OSHA’s COVID-19 emergency temporary standards, leaving the November 2020 emergency temporary standards in place until at least June 17, when the Board meets again.


Northern California. Alameda County moved to the Yellow Tier and issued a 6/8/21 Press Release re: Move to Yellow Tier.

Butte County issued a 6/7/21 Press Release re: Gridley Clinic Offering Phizer Vaccine.

Calaveras County issued a 6/10/21 Press Release re: Vaccination Clinics.

Contra Costa County issued a 6/10/21 Beyond the Blueprint Update.

Fresno County issued a 6/10/21 Press Release re: Vaccination Event and Carnival.

Napa County moved to the Yellow Tier and issued a 6/8/21 Press Release re: Move to Yellow Tier. The County issued a 6/11/21 Press Release re: Beyond the Blueprint.

San Francisco issued a 6/9/21 Press Release re: Reopening Pursuant to Beyond the Blueprint Effective June 15. The County issued a 6/11/21 Press Release re: Streamlining Testing Amidst Decline Due to Vaccination.

San Joaquin County issued a 6/9/21 Press Release re: Move to Orange Tier and June 15 Re-Opening.

San Mateo County issued a 6/10/21 Press Release re: Most County Offices to Open for In-Person Service June 15.

Sonoma County issued a 6/9/21 Update on Emergency Rental Assistance Program.

Stanislaus County moved to the Orange Tier and issued a 6/9/21 Press Release re: Move to Orange Tier.

Tehama County issued a 6/9/21 PSA re: Reaching Immunity.


Southern California. Los Angeles County Press Release regarding reopening on June 15. Los Angeles County to align with State’s masking guidelines, where fully vaccinated individuals do not need to wear masks indoors with exceptions for public transit, K-12 schools, healthcare settings, correctional facilities and shelters. Masks will still be required indoors for unvaccinated individuals in public settings and businesses. San Bernardino County Press Release regarding what will it look like on June 15.

San Diego County Press Release regarding San Diego’s move to yellow tier.

San Luis Obispo County Press Release regarding SLO County’s move to yellow tier.

Santa Barbara County updated its health order to align with its move to yellow tier. Press Release regarding Santa Barbara’s move to yellow tier. What can I do now that I am vaccinated?


 
Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC
DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. Boards need to pay an attorney to review all the facts and give a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.
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To schedule in-house training of managers on how to safely reopen association facilities, contact Miranda Ward for NorCal presentations and Candace Schwartz for SoCal presentations.

I join Adrian in inviting you to contact us for your association's legal needs.

Hon. Lawrence W. Stirling, Senior Partner and author of the Davis-Stirling Act

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