We can breathe a sigh of relief. The Legislature is out of session. We tracked a number of bills affecting associations--several of which died and one was vetoed. The bills that passed take effect on January 1, 2023. While this year’s bills don’t have significant impact, there are some you want to pay attention to.
Assembly Bill 1410. This is the bill everyone’s been talking about. CAI-CLAC mounted an opposition campaign due to the bill’s onerous requirements and was successful in minimizing the damage. The bill does three things.
1. Free Speech. The bill prohibits an association from banning members' use of social media, even if the content is critical of the association. This is redundant considering the First Amendment to the US Constitution. This unnecessary bill may have unintended consequences. Because it is poorly drafted, some owners will think they can engage in unlimited speech, including defamation. They can't. Some may argue their association is required to provide social media or other online resources to members. They are not. Finally, if an association has a website, it is not required to allow members to post content on it.
2. Lease Restrictions. The bill invalidates any restriction that prohibits the rental or leasing of a portion of an owner-occupied separate interest for a period of more than 30 days. The language in this poorly drafted provision is confusing. Associations are already prohibited from requiring leases be longer than 30 days. This prohibits associations from restricting leases longer than 30 days. The only thing associations can do is prohibit transient or short-term rentals for a period of 30 days or less.
3. Declared Emergencies. The bill precludes an association from pursuing any enforcement action (excluding assessment collection) during a declared state of emergency if it is unsafe or impossible for the owner to prevent or fix the violation.
Assembly Bill 1738. This bill requires changes to the California Building Standards Code in the next few years to provide for the installation of EV charging stations in parking areas of existing multifamily dwellings and commercial developments whenever certain upgrades are made which require a permit. We will continue to track and report on changes.
Senate Bill 897. This bill eliminates local restrictions on ADUs, including some which would make it easier to convert or demolish a garage to build an ADU/JADU. It also allows ADU heights of 16-18 feet or more (depending on the circumstances) and eliminates any decisions by a public official which aren't determined on an objective standard. This does not preclude an association from imposing subjective standards in the architectural review process, as long as they don’t unreasonably increase the cost to construct or effectively prohibit the construction of an ADU/JADU.
RECOMMENDATION: AB 1410 and SB 897 may conflict with your association’s governing documents. Boards should have legal counsel determine if any changes should be made. The Legislature is pushing hard on ADUs (a little too hard). Boards of planned developments should adopt ADU Policies. Make sure to check out our New Laws page for a summary of 2022’s legislation and case law. Contact Us if you need assistance.
Many thanks to Partner Nathan McGuire for assistance with this article and for tracking all of the legislation.
QUESTION: Is a resident required to vacate a unit when a balcony inspection indicates an immediate safety threat? –Lynn P.
ANSWER: No, there is no need to vacate the unit. Yellow caution tape can be placed across the outside of the sliding glass door and a warning taped to the door cautioning persons not to step onto the balcony. We have already implemented this solution with some of our associations. Once repairs are made, the balcony can be used again. For more information, see Balcony Inspections.
ARE CANDIDATE STATEMENTS
QUESTION: We recently received our board election ballots. Candidate statements were not included. Our property manager said that state law says no candidate statements are required. Is this true? Otherwise it appears to be blind voting or something akin to the Chinese Party Congress. –Norm H.
ANSWER: The law does not state that no candidate statements are required. Rather, the law is silent on the issue. Because the law is silent, most election rules are also silent on candidate statements. Prohibiting them is misguided. Doing so would, as you pointed out, mean that members would be voting blind. How can they know who to vote for if they know nothing about the candidates?
Excessively Long. Associations should allow candidate statements but with guidelines. You don't want candidates submitting ten pages with their life's history. Election Rules should set a limit on the length of the material submitted. It can either be done by the number of words or limiting statements to one page.
No Campaigning. Campaigning may be done by all candidates but not in the election package delivered to members. If candidates are allowed to advocate a point of view or engage in campaigning in their candidate bios, it requires the association to provide equal access to all candidates and members advocating a point of view. (Civ. Code § 5105(a).)
It means the association distributing other owner's points of view at the association's expense. To avoid this problem, election rules should limit candidates to their bio only. Candidates should not deride other candidates, board members, or staff in their statements, or campaign for or against issues. Such campaigning is allowed but not in the election package. It must be done separately without using the association's resources. (Civ. Code § 5135.)
Photos. Election Rules should allow candidates to submit a photo of themselves. The photo should be recent--not one from 40 years ago (which would be misleading). The rules can also require the photograph be limited to the candidate's head and shoulders. If boards would like assistance preparing election rules, Contact Us.
QUESTION: We recently had an incident captured by our security cameras that the affected homeowner would like to review and possibly copy. What should we do? –David B.
ANSWER: You should allow the owner to view the video. Your cameras have two purposes. The first is to deter crime. The second is to catch someone who engages in criminal activity.
If, for example, a member's car is vandalized, the video should be made available to the person to view. There is no reason to deny access. The person does not need to view the entire video, just the portion relevant to the vandalism. If they request a copy to share with police and/or for insurance purposes, you should give them a copy.
RECOMMENDATION: Boards should work with legal counsel to draft a policy on how surveillance recordings are handled. A written policy provides consistency from board to board, and allows you to say "No" to owners who do not have a valid reason to view recordings. The policy should also contain a statement regarding reimbursement of costs to retrieve and copy relevant recordings. Contact Us if you need a policy for your association.