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BOARD WON'T FIX LEAKY ROOF

Q. 
We live in a three story condominium complex in Woodland Hills that is over twenty years old. The roof needs replacement, but the association does not have the funds to replace it. It has been patched numerous times, over several years, but still leaks when it rains. Our roofer tells us that patching will only slow the water down and that we must replace the roof. This has been confirmed with a second opinion. The board has attempted three times to get a special assessment passed, but has failed to get one approved due to a combination of indifference and people on the lower floors refusing to pay the cost. Our ceiling, walls and furniture has been damaged. What can be done?

A. 
The board can approve an emergency assessment where there is a threat to personal safety on the property. While your situation may be a legal stretch, the board should immediately discuss the option with its legal counsel. Absent a special assessment and repair, your option is to sue the association for failing to maintain the common area. Top


HIRING CONTRACTORS

Q. 
We live in a common interest development in Artesia. Based on the recommendation of our management company, our board of directors obtained three bids for landscaping maintenance and then selected the company with the highest bid. The bids were for identical work. Since all three companies were proposing to do the same work, shouldn’t our board have selected the lowest bid? Our monthly assessments are already too high and many of us live on fixed incomes.

A. 
The board should use its best judgment in deciding which company to use, based on all facts available. This is their legal duty. While the three companies may have submitted bids for the same work, it does not logically follow that all three companies will provide the same quality of work. Sometimes experience is helpful in determining which company will provide the highest quality work and, likewise, who will be the most reliable contractor. One of the advantages of hiring an established local management company, is that they have experience with contractors and can provide valuable recommendations to the board of directors. Top


CONSTRUCTION DEFECTS

Q. 
We live in a community of new single family homes in Anaheim Hills that has an association and common area. Behind our home is a common area hillside that is draining water onto our lot because of an inadequate drainage system. The water is starting to lift our patio slabs and do other damage. We are concerned that with a heavy season of rain, the damage will become very serious. Our homeowner association refuses to sue the developer for construction defects because our home is the only one significantly impacted by the flow of water. Are we without a remedy?

A. 
No. If the association refuses to protect your rights, an experienced construction defect attorney can file a derivative suit to protect your rights. You should consult an attorney immediately because you can lose your rights if you wait too long. Top


NO COMMON AREA

Q. 
Our homeowners association is incorporated in Los Angeles, but has absolutely no common area. Are we still regulated by the Davis-Stirling Act?

A. 
No. You are regulated primarily by your CC&Rs and the California Corporations Code. Top


PROHIBITION OF SMOKING

Q. 
Can our homeowners association establish a rule that prohibits smoking in the common areas?

A. 
In the absence of a provision in your CC&Rs that prohibits such a rule, the answer is yes. Directors of association boards have the right to make rules governing the use of the common areas so long as they follow the required legal procedures, are legal and are not inconsistent with the CC&Rs. Keep in mind that such a rule can be over turned by a subsequent board of directors, and consequently, an amendment to your CC&Rs would make more sense if you want a long-term ban. Top


REMOVAL OF TREES BY BOARD

Q. 
Our homeowners association in Burbank consists of twelve townhomes.  We have a three person board which includes two members who live off-site.  The two off-site board members just voted as a majority to remove several beautiful, twenty-five year old trees because they want to save money on tree trimming.  The ten members of the association who live on-site are furious about the decision.  The trees are being removed within a week.  Is there anything we can do?

A. 
If the board of directors has a good reason, in their reasonable judgment, to remove the trees, they may do so.

While I recommend that you present a petition signed by the ten members to your board in order to influence their decision, they may legally exercise their reasonable judgment and remove the trees.

This situation illustrates the critical importance of electing board members who will represent the majority of members.  Members of associations should take the subject of board elections very seriously. Top


BOARD FAILS TO MAINTAIN COMMON AREA

Q. 
The board of directors of our homeowner association in Huntington Beach is permitting members of our association to grow ivy on the exterior stucco of our buildings.  The stucco is common area that must be repaired by the association if the ivy damages it.  Since I don’t want to be responsible to pay for stucco repairs through my association dues in the future, what should I do?

A. 
First, point out to your board the specific provisions in your CC&Rs (Covenants, Conditions and Restrictions) that obligate the association to maintain the stucco.  Next, point out the fact that future stucco repairs are only one potential liability being created by permitting the ivy to grow on the stucco.  When ivy or other vines cause the water-proofing quality of stucco to be destroyed, moisture can enter the buildings causing substantial interior damage, including but not limited to mold infestation.  Some molds are highly toxic resulting in immune system disorders and other serious medical problems.  In short, your board is assuming a big and unnecessary risk by allowing ivy or other plant materials to grow on the stucco. Top


LEAK FROM UNIT ABOVE

Q. 
The condominium above ours has a defective shower pan that leaks into our home. Our management company insists that we must deal directly with the person above us and will offer no assistance. Their position is that the association has no power to act. Are they correct, or should they take action to force the owner with the leaking pan to repair it?

A. 
Your association has the power to act whenever common area property is being damaged by a member of the association. If the defective shower pan is allowing water to wet the internal structure of the building (common area), it may cause dry rot, electrical problems, or other damage. Thus, the association has the power to act.

If your management company and association will not provide you with assistance, you may take legal action yourself. Before filing a suit against your neighbor, your attorney should review your CC&Rs. If a claim can be brought for the enforcement of the CC&Rs, you may be entitled to recovery of legal fees. Top


COMMON AREA FLOODS

Q. 
The common area of our homeowner association in San Diego floods around the area of my townhouse every time we get a strong rain.  The water easily reaches a depth of six inches which causes foundation movement and resulting interior damage.  The flooding and damage are due to the failure of our board of directors to maintain the existing drainage system and to enhance it where needed.  Is our association legally responsible for such maintenance?

A. 
Probably.  In accordance with section 1364 (a) of the California Civil Codes, “Unless other wise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas other than exclusive use common areas***”

While you should check your CC&Rs (Covenants, Conditions and Restrictions), it is highly unlikely that they require anyone other than the association to maintain the area described. Top


TRANSFER OF COMMON AREA RIGHTS TO MEMBER

Q. 
The board of directors of our condominium association recently granted the exclusive right to use a part of the common area to a member of the association. Can they legally do this and, if not, what can be done?

A. 
The common area of a condominium association is owned by all members of the association. Every member of the association holds legal title to an undivided interest in the common area and has the right to use it together with the other members. Notwithstanding, there are some circumstances under which the board can convey exclusive rights. You should consult an association attorney to determine whether the board acted within the scope of the exceptions.


 

BOARD REFUSES TO ENFORCE CC&Rs

Q. 
I live in a zero-lot-line homeowner association in Simi Valley, where the CC & Rs (Covenants, Conditions and Restrictions) make the association responsible for exterior stucco repairs and maintenance except for situations where a member of the association has caused the damage. Each member of the association is responsible for interior repairs.

My neighbor has planted ivy in her yard which has attached itself to the exterior of my townhome in an area where only my neighbor has access. I am concerned that the ivy will eventually damage the stucco leading to water intrusion and interior damage. The board of directors seems to be reluctant to request that my neighbor remove the ivy. What should I do?

A. 
You should advise your board of directors in writing of their obligation as set forth in your CC & Rs . Specifically, you should point out that the board should either require your neighbor to remove the ivy, or agree to recommend to the full membership , a proposed amendment to the CC & Rs that would require the association to make both exterior and interior repairs caused by exterior plants.

It is highly unlikely that your board will choose to amend the CC & Rs as such. It is more likely that they will agree to request the removal of the ivy.

If the board fails to do anything, you probably will have documented your file sufficiently to hold the association responsible if damage takes place in the future. Also, to be safe, I recommend that you send copies of your correspondence to any new members who join the board at a later date. Top


SATELLITE DISH RULES

Q. 
How do I learn more about Satellite Dish Antenna Rules for homeowner associations?

A. 
Visit Satellite Dish Antenna Rules on our website. Top


DISABLED OR HANDICAPPED OWNERS

Q. 
Is an association required to make alterations to the common area in order to accommodate a member who is disabled or handicapped?

A. 
No. However, disabled or handicapped owners may make alterations to their units or the common area at their expense to accommodate their handicap. This may include the installation of handrails, wheelchair ramps or other modifications. The right to modify the common area is subject to the following:

  • Modifications must be consistent with applicable building codes;

  • Modifications must be consistent with the governing documents of the association;

  • Modifications may not impair the structural integrity of any structure or interfere with any mechanical systems;

  • Modifications may not prevent reasonable passage by other residents, and must be removed when the unit is no longer occupied by persons requiring the modifications; and

  • Owners who intend to make modifications must submit plans to the association and the association may not disapprove them without cause. Top


BOARD REFUSES TO REPIPE BUILDING

Q. 
Our condominium building in Los Angeles has old galvanized pipes that have been leaking for several years. The board makes repairs, but has refused to repipe the building because our reserves are inadequate. What is their legal duty?

A. 
The board should borrow the funds to repipe the building if possible. If a loan is not available, the board should immediately begin the process of increasing assessments so the work can be done at the earliest possible time.

Given that the board has knowledge of the deteriorating pipes, the association will probably be liable for the total cost of all repairs resulting from future leaks. Repiping will cut off the association's liability. Top


PIPE REPAIRS COVERED BY INSURANCE

Q. 
Will the association's insurance policy cover the cost of repairs resulting from the leaking of our building's old galvanized pipes?

A. 
Most insurance policies will not pay for such damage if it determines that the board knew of the deteriorating pipes and failed to replace them. Insurance policies generally cover only sudden, unexpected losses. Losses from old deteriorating galvanized pipes are expected. Top


SECURITY CAMERAS IN THE POOL AREA

Q. 
Our condominium association in Simi Valley is experiencing a great deal of unlawful activity around our pool area. Can we safely install security cameras in the pool area in order to discourage this type of activity?

A. 
Your association can and should install security cameras in the pool area if illegal activity is taking place. However, it is important that the cameras be installed in such a way as to avoid invading the reasonable expectation of privacy of people using the pool.

I recommend that you consult with an attorney before purchasing and installing any cameras in the pool area. Top


DUMMY CAMERAS

Q. 
The board of directors of our condominium association in Thousand Oaks is considering the installation of dummy cameras in our parking garage and entry areas to deter crime. I have been told this may not be a good idea. What is your opinion?

A. 
Dummy cameras are never a good idea because they create potential liability for the association. When owners, renters and visitors see dummy cameras, they often believe the premises are being monitored and therefore, they are reasonably safe. If a serious crime takes place, you can be certain the association will be named as a defendant. It is far better for the association to spend its money on real cameras to deter crime.

Check with an experienced insurance broker to determine if your association can qualify for a discount on its premiums if it installs real security cameras. Top


GUARDS AS EMPLOYEES

Q. 
Our homeowner association in Van Nuys is spending a great deal of money on several security guards at our condominium association. We are considering hiring our own guard employees who will be required to obtain guard cards. The board is split. Some board members are agreeable to paying more to a guard company even though it is more expensive. What is your opinion?

A. 
Do not hire your own guards. Hire a professional security firm that trains and supervises its guard employees. You will greatly reduce your association's potential liability. The money you will save is not worth the increased risk. If there is a serious incident at the property resulting in a lawsuit, you want the benefit of the guard company's insurance and expertise in training and supervising guards. Top


DAY CARE CENTERS

Q. 
Our HOA recently sent a letter to one of our members demanding that she
cease using her condominium as a day care center. The owner refused and told us that we cannot stop her from running a day care center as long as the
number of children does not exceed 14. Is this correct?

A. 
Yes, however there are some additional conditions. The California State Legislature has determined that day care centers may be operated in residential communities so long as the number of children does not exceed 14 and do not stay over 24 hours at a time. Other conditions include licensing, insurance, proper supervision of the children, indemnification of the homeowner association, and following certain regulations and operating procedures. Top


SECURITY SIGNS

Q. 
In order to provide better security, our board recently installed security cameras in the common area. Are we required to post signs informing members and visitors that we have surveillance cameras?

A. 
No. If the cameras are limited to common areas where there is no expectation of privacy, posting signs is not required. If the cameras are in the pool area, signs should be posted because of the greater expectation of privacy.

Notwithstanding, I believe posting such signs is a good idea because these types of signs act as an added deterent. Top


TREES

Q. 
There is a tree growing on the boundary between my property and my neighbor’s property. Who owns the tree and who has responsibility for its maintenance?

A. 
Trees are improvements to real property and ownership is determined by the location of the trunk, not the branches or roots. Therefore, you own the tree jointly and each of you has responsibility for the maintenance of the tree on your side of the line.Top


SUSPENDED CORPORATION

Q. 
Our Association’s management company recently informed the board that the corporate status of the association had been suspended. How does a homeowner association become suspended and what are the consequences?

A. 
Possible reasons for suspension are:

Failure to pay taxes,
Failure to file taxes,
Failure to file a Statement by Domestic Nonprofit Corporation, or
Failure to file a Statement by Common Interest Development

The consequences include the loss of:

The right to bring and defend lawsuits,
The right to collect assessments,
The right to enforce contracts with contractors and vendors, and
The right to enter into contracts.

A suspended corporation (association) can be revived. When this occurs, a Notice of Revivor is provided by the Secretary of State.Top


REAL ESTATE TAXES

Q. 
Are homeowner associations required to pay property taxes on the common areas?

A. 
No. Taxes on the common areas are paid by the members of the association through their individual tax bills. The value of the common areas is reflected in the value of each separate interest. Notwithstanding, it is possible that an association could be required to pay a special district user fee, but this is not common.Top


ELECTRIC VEHICLES

Q. 
Is our homeowner association required by law to provide common area electricity to owners of electric vehicles?

A. 
No. You may want to visit the website for Southern California Edison for information on how best to address this issue.Top


SOLAR PANELS

Q. 
Can homeowner associations prohibit members from installing solar panels?

A. 
According to California law, associations cannot prohibit solar systems, impose restrictions that significantly increase their cost, or impose restrictions that significantly decrease their efficiency. However, associations can prohibit members from installing their solar systems in or on common area property. Top


PAINT COLOR RESTRICTIONS

Q. 
We have had owners within our association in Newhall paint their homes some rather unusual and unattractive colors. Can we amend our CC&Rs to require owners to select from a list of approved paint colors?

A. 
Yes. Many associations do this in order to maintain an attractive appearance.Top


SMOKING IN COMMON AREAS

Q. 
Is it legally permissible for an association to prohibit smoking in common areas?

A. 
Yes. Homeowner associations are commonly amending their CC&Rs to prohibit smoking in common areas. Many are also prohibiting smoking in balconies and in patio areas.  Top


TERMITE TREATMENT

Q. 
Our condominium association in West Covina calls for the association to treat for termites in the common areas and for homeowners to treat for termites in their units as set forth in the California Civil Code. Can we modify our CC&Rs to require the association to treat for all termites? This seems to be more practical.

A. 
Yes. Many condominium associations find this to be more practical than dividing the responsibility, and are amending their CC&Rs accordingly.  Top


FIRE DAMAGE

Q. 
Our association common areas were recently damaged by fire. Our, insurance coverage proved to be less than adequate. Can we amend our CC&Rs to require minimum insurance coverages?

A. 
Yes. Modern CC&Rs generally specify minimum insurance coverages. It is important that your CC&Rs adequately address this important issue.  Top






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