Beaumont Tashjian Law Blog

Wednesday, March 1, 2017

A Step-by-Step Approach to Amending and Restating Governing Documents

By Brittany A. Ketchum, Esq.  

It seems as though the laws change as frequently as the tides. Some years see more legal changes than others – changes that greatly affect the way boards manage the association’s affairs. The laws governing community associations have experienced so much change within the past three to four years alone that it may make your community’s governing documents unreliable, especially as they relate to homeowner rights and the functions of the board, officers, and management. It only makes sense to have governing documents that are updated and reflect modern law. Moreover, relying on outdated, antiquated governing documents may expose associations, board members, and even management to liability.

Step #1: Evaluate the Existing Governing Documents

The first step in amending or restating governing documents, whether the CC&Rs or Bylaws, is to review and evaluate the documents to determine whether any provisions are inconsistent with laws. To the extent there is any conflict or inconsistency between the law and the CC&Rs, the law will prevail. To the extent there is any conflict or inconsistency between the CC&Rs and Bylaws, the CC&Rs will prevail. This became California law on January 1, 2014 when Civil Code Section 4205 was adopted to establish a hierarchy amongst governing documents. Reliance on a provision of the CC&Rs or Bylaws that is inconsistent with the law exposes the association to liability.


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Thursday, December 1, 2016

2016/2017 LEGAL UPDATE

The following is a summary of legislation enacted and court decisions from this past year, and news and current events, which impact common interest developments.

ENACTED STATE LEGISLATION

AB 968 (Gordon) Exclusive Use Common Area
Civil Code §4775

Section 4775 of the Civil Code currently holds associations responsible for maintaining, repairing, and replacing common areas while owners are responsible for maintaining their separate interest (e.g., condominium unit or lot) and any attached exclusive use common areas, unless the community's governing documents state otherwise. However, the current law fails to delineate whether associations or owners are responsible for the repairs and replacements of exclusive use common areas if the community's governing documents do not clearly establish same. In trying to clarify the current code's language, the legislature passed Assembly Bill No. 968 to amend Section 4775.

Effective January 1, 2017, associations will be responsible for maintaining, repairing, and replacing the common areas and repairing and replacing the exclusive use common areas while the owners of each unit are responsible for maintaining, repairing, and replacing their units and merely maintaining the exclusive use common areas, unless the community's CC&Rs provide otherwise.

This new bill may affect your community's obligations pertaining to exclusive use common areas. Reviewing your community's governing documents with legal counsel is strongly recommended to ensure that the new Civil Code language does not change how your association assigns maintenance duties. As many community's governing documents do not clearly establish responsibilities for the repair and replacement of exclusive use common areas, associations may now be responsible for them, which could significantly impact your community’s budget.



Read more . . .


Wednesday, November 30, 2016

Be Prepared: AB968 Takes Effect January 1, 2017

By Brittany A. Ketchum, Esq.
Published in the CAI-Greater Inland Empire Chapter's Connect 2016 Third Quarter Magazine

 Section 4775 of the Civil Code currently holds associations responsible for maintaining, repairing, and replacing common areas while owners are responsible for maintaining their separate interests (e.g., condominium unit or lot) and any attached exclusive use common areas, unless the community’s governing documents state otherwise.  However, the current law fails to delineate whether associations or owners are responsible for the repairs and replacements of exclusive use common areas if the community’s governing documents do not clearly establish same.  In trying to clarify the current code’s language, the legislature passed Assembly Bill No. 968 to amend Section 4775.

Effective January 1, 2017, associations will be responsible for maintaining, repairing, and replacing the common areas and repairing and replacing the exclusive use common areas while the owners of each unit are responsible for maintaining, repairing, and replacing their units and merely maintaining the exclusive use common areas, unless the community’s CC&Rs provide otherwise.

This new bill may affect your community’s obligations pertaining to exclusive use common areas.  Reviewing your community’s governing documents with legal counsel is strongly recommended to ensure that the new Civil Code language does not change how your association assigns maintenance duties.  As many community’s governing documents do not clearly establish responsibilities for the repair and replacement of exclusive use common areas, associations may now be responsible for them, which significantly impact your community’s budget.


Read more . . .


Tuesday, October 4, 2016

A Needle in a Haystack: The Top Five Pitfalls in Responding to Homeowner Requests for Association Records

By Brittany A. Ketchum, Esq.
Published in the CAI-Greater Inland Empire Chapter's Connect Magazine

Among the many membership rights and privileges afforded to homeowners under the Davis-Stirling Common Interest Development Act (“Act”) and the association’s governing documents is the right to inspect and copy association records. The records retained by an association are copious, to say the least, and responding to homeowner requests can feel like finding the proverbial needle in a haystack.

Too often, such requests stem from, or become, a source of contention. Imagine (or recall from your own experiences) a scenario where a disgruntled homeowner seeks information from management or the board or makes excessive requests for documents from the association. More often than not, when a homeowner asks for “information” or “documents,” the impetus behind the request is to support his or her position in a dispute (or potential lawsuit) with the association.

Before creating documents or compiling information for a requesting owner, take reasonable steps to avoid these common pitfalls.


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Thursday, August 18, 2016

CAI-OC Free Legal Advice Luncheon


BGT Associate Brittany Ketchum has been requested to present at the CAI-Orange County Regional Chapter's Free Legal Advice Luncheon on September 27th at Woodbridge Village Association in Irvine.  For more information and to register, click here:

http://www.caioc.
Read more . . .


Thursday, August 18, 2016

CAI Legal Forum & CLAC Benefit Fundraiser


BGT Partner Jeffrey Beaumont has been selected to speak at the 2016 CAI Legal Forum on October 21st in Indian Wells, CA.  He will co-present, "I Can't Believe You Said That! Community Association Liability." BGT is also a proud main event sponsor of The 2016 California Legislative Action Committee Benefit Fundraiser hosted in conjunction with the Legal Forum.  For more information and to register, click here: Read more . . .


Thursday, August 18, 2016

CAI-National M-204 Community Governance


BGT Partner Jeffrey Beaumont has been requested to present at CAI-National's M-204 Community Governance course in Atlanta, Georgia on September 22nd and 23rd.  The two-day course covers the legal basis of community rules, policies and procedures.  For more information and to register, click here:

www.
Read more . . .


Monday, July 18, 2016

Neighbor to Neighbor Disputes: Turning Lemons into Lemonade

By Lisa A. Tashjian, Esq.

Published in the CAI-Channel Islands Chapter's Channels of Communication
2016 2nd Quarter Magazine 

Boards are continually faced with trying to turn lemons into lemonade. The most common “lemons” boards are faced with are neighbor-to neighbor disputes. What should boards do when faced with these types of owner disputes which are never pleasant and almost always adversarial?  Does the Board of Directors have a duty to step in and, if so, what authority does it have to act in such situations? How does the Board make lemonade from these lemons?

Many neighbor-to-neighbor disputes arise from smoking complaints and noise violations.   Owners often complain when smoke, loud music or other noise emanates into their units from a neighbor, either through the interior of the units, common areas, or exclusive use common areas, such as patios and balconies.  The board’s duty to act in these types of situations depends on the specific provisions contained in the association’s governing documents and the specific facts regarding each violation.  Each is unique, and each should be analyzed separately. If these matters are not resolved at the inception they can escalate exposing the association to liability.


Read more . . .


Friday, July 1, 2016

The Real Cost of “No Cost Collection”

By Calvin S. Rose, Esq. and Tracy R. Neal Esq.

Published in the CAI-Greater Inland Empire Chapter's
Connect 2016 2nd Quarter Magazine 

The “no cost collection” model has come under attack in recent years, culminating most recently in the collection case, Hanson v. JQD, LLC d/b/a Pro Solutions, (N.D. Cal., 2014) (“Hanson v. Pro Solutions”). California community associations and the common interest development industry at large have watched this case unfold, beginning with a homeowner filing a lawsuit against a assessment collection services provider, and culminating in takeaways that will undoubtedly resonate throughout California.

Assessments have been termed the “lifeblood” of an association. Assessments are the sole source of income for associations, from which association expenses are paid, including daily operating expenses to common area maintenance and repairs. Boards have a fiduciary duty to levy and collect assessments. Like most businesses, community associations and the boards that run the day-to-day business of an association, seek out services at the best price, which in some cases may mean the lowest price.  As a result, delinquent assessment collection services at no cost have appealed to community associations as they are non-profit corporations operating on a zero budget. Hanson v. Pro Solutions, however, has shown the potential real cost of “no cost collection”.


Read more . . .


Thursday, June 30, 2016

CAI-Orange County Regional Chapter Symposium & Expo

BGT will be participating in the CAI-Orange County Regional Chapter’s Annual Symposium and Expo on June 30th at the Irvine Marriott.  The half day event will feature education sessions and a trade show.  For more information and to register, please visit: http://www.caioc.org/Calendar/Event/290~962002~1.
Read more . . .


Tuesday, June 7, 2016

CAI-Channel Islands Chapter Dinner and Educational Programs

BGT Associate Tara Radley will be presenting “From Good to Great: Running Your Community Effectively & Efficiently” for two CAI-Channel Islands Chapter’s Dinner and Educational Workshops on June 7th in Oxnard and on June 16th in Pismo Beach.
Read more . . .


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