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I serve as Treasurer of the Marina City Club Condominium Owners Association and requested our Management Company, Seabreeze Management, to sign me up for the CAI-GLAC’s Legal Update 2019. The speakers were awesome, lunch was delicious and people were friendly.
According to the Community Associations Institute (CAI), about six out of 10 new homes are built in a community association, and in 2019, approximately 25 percent of the U.S. housing market consisted of homeowners associations, condominium communities, and housing cooperatives.
The speaker lineup consisted of:
There is a lot of uncertainty with how the new legislation will play out. There are 13,000,000 Californians that live in 3,700,000 homes in more than 48,000 community associations. These residents pay $22 billion per year to maintain their communities and 60% say they always vote. Residents often go into the offices of representatives in Sacramento to talk to legislators about elections that are abusive or other things that are problematic in community associations. As a result, legislators react with new legislation.
Report from Louie Brown
Where did the legislators come
up with these ideas?
Every one of the ideas that has become law came from a constituent, a member, or a voter in a legislative district that had a negative run-in with their association, such as not being allowed to run for a board. That person then calls the legislator, the call turns into a meeting, then the meeting turns into a bill. Louie Brown and his staff will continue to work hard on these issues.
2019 Chaptered Bills
AB 670 Accessory Dwelling
Units (ADU) attempts to deal with housing shortage. Prohibits any governing document provision
that would prohibit or makes it difficult to have a secondary unit. This is like the solar bill that requires
placing solar panels on multi-level condominiums in that it is an example of
the legislature not caring what community associations want. This bill further erodes the idea that no one
can tell you what to do when you buy a private residential unit.
What is an Accessory Dwelling
A second unit on a lot up to
1,200 square feet in size. Either
completely detached or contained within the walls of the house of the lot. Allows dwellings to include cooking, sleeping
and bathroom facilities. Examples:
Raised basement, garage conversion.
What is a Junior Accessory
Up to 500 square feet. Includes outside entrance and cooking
facilities. May share bathroom
facilities with main house. Example:
What are some areas of concern
and uncertainty with ADUs?
SB 234 Family Daycare Homes expands
residential use of the property a small daycare home of 8 children or less to
14 children or less.
Since existing law classifies as
a “residential use” of the property a small family daycare home of 8 children
or less, a community association cannot use a prohibition against commercial
use written into the CC&Rs to prohibit this type of use. SB234 expands residential use of the property
a large family daycare home of up to 14 children or less. It clarifies issues dealing with the
operation of daycare facilities. It
doesn’t matter the size of the actual home, a one unit condo, apartment, family
home – any unit with a valid license will be allowed to operate with up to 14
children or less and this cannot be prohibited by the community
association. Reasonable restrictions can
still be enforced, but that is still unclear. Legislative history indicates
that while community associations cannot make special rules for family daycare
homes, however, they can enforce general rules like parking restrictions, etc.
SB 323/SB 754 Common Interest
Vote by acclamation: Vote by
acclamation is allowed for large communities of 6,000 or more separate interests. The
most frequent type of acclamation is a voice vote,
in which the voting group is asked who favors and who
opposes the proposed candidate. In the event of a lack of opposition, the
candidate is considered elected. In parliamentary procedure, acclamation is a form of unanimous consent.
Timing: Elections must take place at the end of each directors’
expiring term and at least every four years.
Candidate Qualifications: Election
rules must require: 1) candidates to be association members; and 2) a corporate
or trust property owner must be represented by a natural person.
Candidate Qualifications: Associations
may, through election rules or bylaws only, disqualify a candidate:
Expanded Retention of, and Member
Access to, Mandated Election Records
Now the definition of association
records has changed to include association election materials such as the voter
list and the candidate registration list.
Homeowners have a right to request to inspect the voter list, candidate
registration list, returned ballots, proxies, signed outer envelopes, etc. But
the exception says that someone inspecting the records can copy all the
records, but cannot copy signatures due to privacy concerns.
Membership Lists now include email
The membership list includes member
emails. So if an association maintains member emails, that database will be
available upon request, even if the email database is kept separate from
homeowner names and addresses. It would be
prudent to clearly disclose to homeowners in the annual policy statement and
even throughout the year, that their email addresses may be disclosed unless
they opt out.
Mandatory Delivery of Ballots
Every homeowner has to receive a
ballot and has the right to cast it, apparently regardless of whether the community
association has suspended voting rights.
Election Rule Delivery and Amendment
Election rules must be delivered with
ballots or ballots must include a statement that election rules are available
on the website. Election rules cannot be
amended within 90 days or less from an election. The timeline for elections is critical. You
have to tell people when their candidate statement is required to be submitted
30 days before it goes out, so it pushes out everything that is done about 120
days or more. This means that half of
the year will be spent on budgets and the other half of the year on elections.
The legislature frequently talks about
the fact that associations are quasi-government and if you take that messaging
and compare these election processes with local government elections, they
start to look alike with the timeline, transparency and strict rules and
Changes Inspector Qualifications
Prohibits an association from using an
association employee or person under contract with the association (such as
attorneys, management companies, CPAs) as an Inspector of Election.
Mandates 2 Pre-Election Notice
At least 30 days prior to the deadline
for submitting candidate nominations, general notice should be provided of the
procedure of submitting name as a candidate in the elections including the
deadline for submission. At least 30 days
notice should be provided to inform when the ballots will be sent, the location
of the meeting and list of candidates on the ballot.
Adds Standards for Challenges to the
Courts must void an election if a
member proves that the election procedures were not followed. However, the burden shifts to the association
to prove that the deficiency in the election process did not have a material
impact on the outcome of the election.
SB 326 Common Interest Developments
Vertical Elements – What is Inspected?
Requires a reasonably competent and
diligent visual inspection of exterior elevated elements.
Vertical Elements – Timing
The first inspection shall be
completed by January 1, 2025, and then every 9 years thereafter in coordination
with the reserve study inspection, pursuant to Section
5550. All written reports shall
be maintained for two inspection cycles as records of the association.
Vertical Elements – Inspection
Must be performed by a licensed
structural engineer or architect. A
random and statistically significant sample of exterior elevated elements for which
the association has maintenance or repair responsibility. “Statistically significant sample” means a
sufficient number of units inspected to provide 95 percent confidence that the
results from the sample are reflective of the whole, with a margin of error of
no greater than plus or minus 5 percent.
Vertical Elements – Visual Inspection
An inspection through the least
intrusive method necessary to inspect load-bearing components. This inspection may occur through visual
observation only, or visual observation in conjunction with other methods, that
is, moisture meters, borescopes, or infrared technology. The inspector may indicate in the inspection
report that further testing is warranted.
Vertical Elements – Reporting
Upon completion, the inspector is
required to submit a report to the board providing specified information,
including the current physical condition and remaining useful life of the
load-bearing components and associated waterproofing systems. The inspector
must also provide a copy of the inspection report to the local code enforcement
agency within 15 days of completion of the report if after the inspection, the
inspector advises that the exterior elevated element poses an immediate
threat to the safety of the occupants.
Vertical Elements – Action required
The association shall take preventive
measures immediately, including:
Vertical Elements – Consequences of
Local enforcement agencies may enforce
this law and recover enforcement costs from the association. Most CC&Rs
have a provision that allows enforcement agencies to enforce CC&Rs, but
this rarely occurs.
With certain exceptions, SB 326 prohibits
an association’s governing documents from limiting a board’s authority to
commence legal proceedings against a declarant, developer, or builder of a
common interest development. Reference
was made to Branches
Neighborhood Corp. v. CalAtlantic Group, Inc. in which
the court upheld a poison pill provision in the CC&Rs. Builder’s lobby said
that by allowing membership to vote on this matter would be more democratic,
but this argument did not win.
Despite this, Boards must provide
members with notice specifying, among other things, that a meeting will take
place to discuss problems that may lead to the filing of a civil action. The
notice must address the potential impact, including financial, to the
association and its members.
SB 652 Entry Doors; Display of
Religious Items; Prohibitions essentially protects the rights of
individuals to have religious beliefs and display symbols of those religious
beliefs. It must be a “sincerely held religious belief” and this may create
some controversy. Associations cannot prohibit the display of religious items
on the entry door or door frame, even if it is not a part of the owner’s
separate interest. Associations can,
however, require owners to remove the item when performing maintenance and
limit the size to not more than 36 x 12 square inches.
This law does not apply to any religious
SB 969 Automatic Garage Door Openers
This law became effective July 1,
2019. It prohibits installation of
residential automatic garage door openers without a battery back-up
function. It also prohibits the
installation of a new door to an existing residential opener that does not have
a battery back-up function.
AB 446 Discrimination; Housing;
Victims of Domestic Violence
Discrimination based on “victim of
abuse status” is a violation of Fair Employment an Housing laws. Any previously recorded CC&Rs must
include Cover Page Language to include “victim of abuse status” as a protected
class rendering violating provisions void and subject to removal.
Fair Housing Regulations
The Department of Fair Employment
& Housing approved new regulations effective January 1, 2020 to expressly
cover Associations. Associations may
have direct liability and vicarious liability for discriminatory housing
practices. If an Association fails to
take action to end discriminatory housing practices by the Association, an
employee or an agent, there is now potential direct liability.
Associations may not discriminate
against persons based on a person being in a protected class. Protected classes include:
Harassment also includes sexual
harassment and working in a hostile environment. Whether hostile environment
harassment existed or exists depends upon the totality of the circumstances. Neither psychological nor physical harm must
be demonstrated to prove that a hostile environment existed or exists.
Community managers need to be particularly aware if a particular Board member
acts out against third parties either written, verbal or physical contact. With a reasonable accommodation, the person
requesting the accommodation must make the request. Therefore, no assumptions need to be made,
however, the request can be in writing or verbal.
Service and Support Animals
Regarding assistance animals, support
certification from an online source must have an individualized assessment from
a medical practitioner. Animal vests and
ID cards are not in and of themselves documentation of a disability or a need
for a reasonable accommodation.
Then someone made this comment and asked this multi-part question…
This entire framework necessitates the
employment of attorneys to consistently interpret these obfuscating laws that
are applied to homeowners who ultimately buy a piece of property to enjoy it
and they are delegated all this responsibility to be like quasi-government
officials, and board members, and open to all this scrutiny when they are not
1) How do you interpret “obscene” and enforce it? What is obscene? According to the Supreme Court, we know it when we see it. But there will be disputes where something obscene to one person will be acceptable to someone else.
2) How do you interpret a “sincerely held religious belief?”
3) How to deal with a sustained
aggressive potential psychopathic homeowner that is in your community – how do
you go about getting a psychiatric evaluation? This question was not
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