Articles

As of May 26, 2020, Los Angeles County has issued a revised Order, also referred to as a “Resilience Roadmap,” to safely reopening various facilities within the County, in conjunction with the State Health Officer’s Orders. Of significance to your community association are the following:

• People leaving their residences are still required to wear cloth face coverings;
• Recreational sites, such as fitness centers, children’s playgrounds and movie theaters, must still remain closed;
• All events and gatherings remain prohibited;
• Homeowners association pools may be opened;
• Outdoor recreation activities at parks, trails, beaches and other open spaces are permitted, subject to “Social (Physical) Distancing”;
• Shared outdoor facilities are permitted to be used, subject to Social (Physical) Distancing, such as tennis and pickleball courts, model airplane areas, community gardens, bike parks and equestrian centers.

With this said, “Social (Physical) Distancing” remains defined as: a) maintaining six (6)-feet of physical distance from individuals who are not members of the same household; b) frequently washing hands with soap and water for at least twenty (20) seconds, or using hand sanitizer that contains at least 60% alcohol; c) wearing a cloth face covering when in contact with others who do not live in the same household; and d) avoiding all physical interaction outside the household when sick with a fever or cough, except for necessary medical care.

Significantly, based on Los Angeles County’s most recent guidance, community association boards and managers may begin to implement plans for reopening certain common area facilities as described above, including pools. But note, boards should continue to consult with legal counsel and factor in the demographics of the community as well as the feasibility of ensuring Social (Physical) Distancing, prior to making any decision on reopening.
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It is no secret that the novel coronavirus (COVID-19) pandemic has thrusted our community into the throes of an unprecedented situation, forcing community leaders to make timely, sweeping, and in many cases, inconvenient decisions. 

On the heels of California Governor Gavin Newsom’s Executive Order N-33-20, which ordered all California residents to stay at home and practice safe social distancing to help “flatten the curve,” many managers and board members worked together to take immediate action and heed the directives of public health officials. This included effectively shutting down access to all association common facilities, such as fitness centers, parks, pools and spas, screening rooms, etc. 

As we have progressed through the pandemic and seen some state and local municipality officials suggest re-opening certain aspects of society to the public, community association residents may be taking note, wondering when their common area facilities will re-open as well. Re-opening facilities may be of particular concern, in light of the impending summer weather.

In 2017, legislation was passed, making accessory dwelling units legal in California.  However, strict permitting regulations previously made accessory dwelling units difficult and expensive to construct. Recently, a number of bills were passed, making the process to construct accessory dwelling units easier and more affordable.

Effective January 1, 2020, an association’s governing documents may not prohibit or unreasonably restrict the construction or use of an accessory dwelling unit. Specifically, Assembly Bill 670 (AB 670) voids any provision of an association’s covenants, conditions and restrictions or rules and regulations that prohibit the construction of an accessory dwelling unit on a lot zoned for single-family residential use. 

The California Legislature passed this bill in response to California’s affordable housing shortage. AB 670 is intended to encourage owners to convert and/or construct additional living spaces within their property by removing the many obstacles that previously hindered the process of building accessory dwelling units.  The Legislature did so by reducing permitting fees, minimizing setback and lot size requirements, and eliminating parking requirements.

While associations may not effectively prohibit accessory dwelling units, they are permitted to adopt “reasonable restrictions”, which is defined to mean restrictions that do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit or junior accessory dwelling unit.

An “Accessory Dwelling Unit” (ADU) means an attached or a detached residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a lot with a proposed or existing primary residence. It also includes permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is situated. A “Junior Accessory Dwelling Unit” (JADU) is a unit that is no more than 500 square feet in size and contained entirely within a single-family residence. A JADU can include separate sanitation facilities or may share sanitation facilities with the existing structure.

As you may know, Senate Bill 323 went into effect on January 1, 2020. Under SB 323, among other substantial changes to the California Civil Code, associations are significantly hampered in their ability to set qualifications for candidates. For example, SB 323 sets forth limited situations in which associations may disqualify a candidate from running for the board of directors:

1. The nominee may not have previously been convicted of a crime that would prevent the association from purchasing fidelity bond coverage, or may cancel existing coverage;
2. The nominee must be current in the payment of regular and special assessments;
3. The nominee cannot serve on the Board at the same time as another person who holds a joint ownership interest in the same separate interest parcel as the person; and
4. The nominee must be a member of the association for a year or more.

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.

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.

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.

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.

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.)