Articles

Tuesday, October 15, 2019

2019/2020 LEGAL UPDATE


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

ENACTED LEGISLATION
The bills below have been signed and approved by Governor Gavin Newsom and will take effect January 1, 2020, as “New Law.”

SB 323 & 754: Election Rules and Director Qualifications

Most significantly, these bills amend Civil Code Section 5100 to, among other things, disqualify a person from being a candidate for the board if he/she is not a member at the time of the nomination. These bills also effectively handicap boards’ abilities to set qualifications for candidates and suspend voting rights as a disciplinary measure.  These bills also require associations to send out pre-election notices while including qualifications for candidates, list of candidates, deadline for returning ballots and time and place of annual meeting.


Read more . . .


Friday, May 31, 2019

Movie and Music Nights - Ensuring Everyone Enjoys Summer Community Events


By: Brittany Ketchum. Esq.

The social event of the summer is about to begin. You take a deep breath, inhaling the scents of fresh cut grass and barbecue wafting through the air, and hope all your hard work will culminate with a successful community event. Instead of fretting over potential complaints, injuries or lawsuits, the prudent manager will have taken reasonable steps to help protect the association from liability, while guaranteeing a good time for residents and their guests.


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Friday, June 1, 2018

Employee or Independent Contractor? - How the Dynamex Decision May Impact Associations

The California Supreme Court issued a monumental decision in Dynamex Operations West, Inc. v. Superior Court in late April of this year. The seminal ruling will make it more difficult for employers to classify their workers as independent contractors instead of employees. For managers and board members of associations, this could mean readdressing whether or not workers of associations should be considered employees instead of independent contractors. 

Dynamex is a nationwide delivery service that offers same day pickup and delivery services to the public and to large businesses. Prior to 2004, Dynamex classified its delivery drivers as employees of the company. After 2004 though, Dynamex made all delivery drivers independent contractors as a cost savings measure. An independent contractor that worked solely for Dynamex sued on his behalf and other similarly situated Dynamex delivery drivers on the basis that the drivers should be considered employees of Dynamex.


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Thursday, May 31, 2018

When the Law Collides with the Governing Documents: How the Board’s Duty to Enforce is Impacted by SB 407

By Lisa A. Tashjian, Esq. 

Fortunately for board members and management alike, community associations are given teeth in their often unavoidable conflicts with homeowners, via the governing documents. When a homeowner fails to submit an architectural request form before making structural changes to their residence, or when he or she is relentlessly committing a nuisance, the Board typically has the ability to impose discipline against the owner in the form of suspending his or her common area privileges, i.e., use of the community clubhouse. For example, common provisions in the CC&Rs provide:

  • “In the event of an architectural violation, the Board shall have the right to suspend the right to use Common Area Facilities;” or
  • “In the event of a breach of any provision of the Governing Documents, the right to use the Common Area Facilities may be temporarily suspended by the Association.”

Complicating matters for board members and management is Senate Bill 407, which, as of January 1, 2018, expands on Civil Code Section 4515, requiring associations to provide equal access to common areas for candidates and members for the purposes of advocating a point of view during an election. The bill protects certain free speech rights, such as meeting and canvassing, by allowing owners and residents of community associations to use common area facilities for meetings related to association issues, legislation, elections to public office, and public ballot measures, without being charged a fee.


Read more . . .


Monday, May 7, 2018

Abstention vs. Recusal: What’s the Difference?

By: Jeffrey A. Beaumont, Esq.

Our clients often ask us to provide guidance relative to the terms “abstention” and “recusal.”  In a nut-shell, abstention is “the withholding of a vote [by a director],” whereas recusal is the “[r]emoval of oneself as judge or policy-maker in a particular matter, especially because of a conflict of interest.” (Black’s Law Dictionary (8th ed. 2004). Abstention generally focuses on the final decision, where recusal usually involves withdrawing from the entire proceeding.

Robert’s Rules of Order (i.e. parliamentary procedure) provides:

“[while] it is the duty of every member who has an opinion on a question to express it by his vote, he can abstain, since he cannot be compelled to vote. (Robert's Rules, 11th ed., p 407.) (Emphasis added.)


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Monday, April 9, 2018

The Tide of Short-Term Rental Policy: What Boards of Beach Communities Should Know

By: A.J. Jahanian, Esq.

Over the past few years, board members and management alike have had to deal with the challenges of the “sharing economy.” Sites such as Airbnb and VRBO have connected members of common interest developments to outside, non-member renters, in an unprecedented fashion, leading to the “commercialization” of residential communities. Boards and management are increasingly pressed with the issue of regulating short-term rentals and protecting their communities against excess use and nuisances, such as noise and increased traffic, associated with transient tenancy.

Complicating matters, the Court in Greenfield et al. v. Mandalay Shores Community Association has added another wrinkle that may limit a board’s ability to regulate short-term rentals/transient tenancy. In Greenfield, the plaintiffs owned a single-family home in the Mandalay Shores beach community, which they began renting to others for rental periods of less than thirty (30) days. Thereafter, the association adopted a resolution barring the rental of homes for less than 30 days, and any violations would result in significant fines. The plaintiffs then sued to enjoin (i.e., stop) the association’s proposed ban on short term rentals.


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Thursday, March 1, 2018

Senate Bill 407: Non-Commercial Solicitation and Right to Assemble In Common Area Meeting Places

By: Jeffrey A. Beaumont, Esq.

Myth. Our community doesn't have common area meeting space so we don't need rules addressing the new law [SB 407].

Fact. Adopting rules in light of the new law would address meetings in the common areas, such as lawns, community pool, etc., and door to door solicitation and canvasing ... so it really applies to every community! Creating rules would establish reasonable hours and days of the week when a member can solicit/canvas; and establish fines and penalties for violations; etc. among other things. Without rules and regulations communities are exposed to unbudgeted expenses and conflict.

This myth is a common response we have received in response to the new law. Now that the law has been effective for several months, let's revisit its purpose and details.

The California Legislature passed this bill with the intent to “ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.” (Civil Code Section 4515(a).)  The law has significant impact on all communities, with or without common area meeting spaces. 

Civil Code Section 4515 reads:

“(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:

(1) Peacefully assembling or meeting with members, residents, and their invitees or guests during reasonable hours and in a reasonable manner for purposes relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes.

(2) Inviting public officials, candidates for public office, or representatives of homeowner organizations to meet with members, residents, and their invitees or guests and speak on matters of public interest


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Thursday, June 15, 2017

Recent California Cases in Community Association Law


"Published" court decisions are law, and binding, while "unpublished" court decisions are not law. Although not law, unpublished decisions are extremely valuable as they illustrate how courts address various issues commonly faced by common interest developments.

Lingenbrink v. Del Rayo Estates Homeowners Association, No. D070194 (Cal.


Read more . . .


Thursday, June 1, 2017

Making Decisions to Protect the Association, Board and Volunteers: The Business Judgement Rule

Board members face decisions every day in performing their duties on the Board of their association. These decisions range from maintenance decisions, such as hiring contractors to perform work, to enforcing governing documents. As we all know, every decision can be second-guessed by someone and can lead to litigation and potential exposure to personal liability. It is important for board members to know what steps they need to take to make sure their decisions are not second-guessed by another member of the association (or by the court if the decision is challenged in litigation).


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Friday, April 14, 2017

Client Alert: Governor Lifts Drought Emergency in Most of California

On April 7, 2017, Governor Jerry Brown declared an end to California’s historic drought, and lifted the drought emergency in all California counties except Fresno, Kings, Tulare and Tuolumne via Executive Order B-40-17. Consequently, unless a local government has declared a local emergency due to drought, an association is no longer prevented from imposing a fine against an owner for reducing or eliminating the watering of vegetation or lawns. (Civil Code Section 4735 (c)(1)-(2).) Associations are encouraged to confirm with the local water purveyor/agency to determine the scope of local emergency drought regulations before taking enforcement action.

Note, Executive Order B-40-17 builds on actions taken in Executive Order B-37-16, which remains in effect, to continue making water conservation a way of life in California. The State Water Resources Control Board will continue to maintain urban water usage reporting requirements and interdictions on wasteful practices, such as watering during or after rainfall, hosing off sidewalks and irrigating ornamental turf on public street medians.

Although the Governor’s emergency order has been lifted, with exceptions, associations cannot adopt or enforce governing documents that prohibit, or effectively prohibit, owners from using low water-using plants or artificial turf in landscaping design. (Civil Code §4735.) Given the complexities surrounding this issue, many of our clients have enlisted our help to prepare guidelines on low water using plants and artificial turf, including rules and regulations regarding same. Please feel free to contact us to further discuss how we can help your association effectively address these issues.


Read more . . .


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.


Read more . . .


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