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November 30, 2007
MOLD, MOLD AND MORE MOLD - Why Do You Let It Grow!
I got 5 calls this week on mold related issues. Most were from homeowners. They all related to water leak issues. The owners who needed help ranged from one who was facing a nearly $50,000 special assessment for clean up after a water leak in his pipes to one that was waiting for a stalled process of repair initiated by the HOA. Many HOAs have been working for the past few years to take steps to minimize the Association's risks overall (by engendering homeowner accountability and responsibility) when a leak occurs in an owners unit and that leak causes damage to the units of the neighbors below. Isn't it sad that the innocents who live below the incident suffer the most!
Even HOAs that have done the footwork necessary to spread some of the risk by making owners who allow leaks to occur over long periods of time for various reasons carry more accountability, and that have pushed owners into realizing they should also purchase insurance to protect themselves from liability from leaks and to restore their portions of the Units need to remain vigilant!!
Understand that if the Board of an HOA responds to any leak situation with the quip: "It's not our problem," those words may come back to bite - hard!
My approach with HOA Boards is to encourage owners to call when a leak is discovered in any condo or townhouse situation (yes - I said any condo or townhouse situation), to immediately investigate and start the work of creating documentation of the issue, whether it be to send someone out to assess what needs to be done, or to do it. Not all attorneys agree with my suggested strategy. Some tell boards to stay out entirely if a leak occurs in a townhouse where the owner owns the "lot".
In any event, the Board should use and suggest contractors, and consult knowledgeable and experienced vendors and lawyers who know what needs to be done in these situations.
It is important to note that even if the governing documents say an owner is responsible for the damage from leaks, if there is any possibility the leak involves the neighbors, the common area, or the association insurance coverage, all of which might involve duties or responsibilities of the Board ... the Board needs to know exactly what happened and needs to demand, or commandere, action to stop the "hemorrhaging" that occurs in the form of mold when a leak is left unattended.
Any given incident can escalate from a $2500 repair to a $50,000 repair, and beyond, and, when something is left to fester out of control, all parties involved, the HOA, the owner, the HOA insurance carriers, the owner's insurance carrier, and the adjuster all start to point fingers. It is then that a now $50,000 repair can escalate into a hundreds of thousands of dollars legal battle.
The moral of the story - act quickly and with the right kind of help! Document everything that you can. And do not bury your head in the sand as it leaves your *** exposed.
Posted by Beth Grimm at 11:14 AM
Blowing Smoke - It Could Become Harder to Find a Place to Do It.
Are you suffering from cigarette or cigar smoke infiltrating your unit through a ventilation system or wafting its way up to your deck when you are trying to enjoy a very fine California sunny day? Should you have to suffer?
I think not. We are on our way to an even healthier environment thanks to proactive municipalities and, as time goes on, more and more proactive HOAs. We have to temper our actions with the times, but the times, "they-are-a-changin."
People across the country are getting relief. I wrote earlier about a Colorado case where the court upheld an HOAs right to enforce a prohibition on smoking in the common area and to address the nuisance caused by second hand smoke. An owner challenged the ban and lost.
At this time, I am writing about laws, ordinances and regulations closer to home. In October of 2007, the City of Belmont passed an ordinance regulating secondhand smoke which may be one of or the toughest in the US on smokers. The ordinance defines a reasonable distance from areas in which smoking is prohibited, and implements a 14 month phase in period for those multi-unit buildings that are included within the purview of the ordinance. It is not a strict prohibition for smoking in multifamily buildings but does address ramifications when neighbors complain about the smoke. The Belmont City website has an entire page on smoking and the issues and you can go there to get links to many places with excellent information about smoking, the damage secondhand smoke does, and where to get guidance and help. Some of the information presented includes this: "The California Air Resources Board (CARB) in January 2006 declared environmental tobacco smoke (another term for secondhand smoke) a toxic air contaminant." The site includes links to such things as:
Press Release Related to 2006 Declaration: http://www.arb.ca.gov/newsrel/nr012606.htm
Fact Sheet Related to 2006 Declaration: http://www.arb.ca.gov/toxics/ets/factsheetets.pdf
Link to Smokers who would like to quit helpline: http://www.californiasmokershelpline.org/
Talk about proactive!
I remember several years ago when I flew back home from the East Coast. There was a group of young Europeans that got off the plane behind me. One said, "I need a cigarette." His companion replied, "I don't think you can smoke in California." I had to chuckle at this.
Maybe we are getting there?? I used to be a smoker. I quit many years ago, not because of anyone harping on me (although my kids did a good job of it). I found that the less convenient it became to smoke, the more it became a stressful experience, instead being the stress reliever I had convinced myself it once was.
One good thing, it's no longer "cool" to smoke - at least in most circles here in this progressive state. Take a look at the older Hollywood movies and you will see a change - very few of the newer movies glamorize smoking ... we've come a long way baby.
Posted by Beth Grimm at 10:27 AM
November 28, 2007
It's Christmas ... Have a Heart!
Some people love Christmas. Some hate it. Some Boards encourage holiday spirit by holding neighborhood contests for the best displays. Others discourage it by putting the nix on all displays. Sometimes there is good reason but usually, if a director is willing to stop with the jerk "bah humbug" reaction and think about it, he or she can come up with a feasible proposal for displays in any type of HOA that is fair to all residents.
Christmas has become complicated, hasn't it? What is politically correct and what is not? At my grandchildren's school, they don't call it Christmas anymore - everything is "holiday". It's darn hard to remember, not to say the "C word" when you grew up on it.
But alas, yes, a more tolerant and sensitive world would be wonderful.
So let's start it off during the "holidays". Let's try to allow those who want to celebrate do it up right! The sooner you put out some positive feedback to the members, the sooner you will deter the undesirable or overboard conduct. Yeah, I know, there is a requirement of circulation of rules before adoption (30 days) that puts you into January. But maybe there is no preadoption circulation for giving owners some guidance as to what not to do so that buildings and roofs will be unharmed, what to do with windows, doors, and other things that would not be considered a nuisance, and if you want to put it into rules, get the jump on next year.
What can residents do and what are they prohibited from doing? That is the first question people commonly want to know. If the answer is nothing, and then everything, then I urge you to try again.
All I am saying is "Don't be a scrooge" ... (maybe that is politically incorrect too). If you give residents some reasonable parameters, they will likely honor the limits. There may be those wishing to "make a point", but I have to believe that the more reasonable a board is in allowing those who wish to join in the holiday spirit, that those who unreasonably push the envelope will stand out like a sore thumb and have a hard time convincing the news reporters that they are subject to bullying and too-stringent rules.
Happy Holidays everyone! (I am one of the believers that this is the best time of year.)
Posted by Beth Grimm at 12:23 PM
November 27, 2007
My Neighbor is *!#*&%!* - What Do I Do?
I hear this at least a once a week. "My neighbor is [crazy, bi-polar, unruly, mean, harrassing, scary, ......] and I am frightened to live here. What can I do? What can the Board do for me?"
First of all, it makes sense to think about what would you do if you did not live in a common interest development (CID) because it may be something that you have to resolve on your own with your neighbor.
If the person committed a crime (assault, battery, vandalism, etc.) you should call the police and talk to an officer, perhaps make a formal report/complaint.
If the neighbor is engaged in activity that is a nuisance, you might be successful in filing and pursuing a small claims court claim - however, that does require physical presence and confrontation in court (if the neighbor shows up) and explaining to a judge why you should get some dollars for the disruption of your enjoyment of your property so be prepared for this.
If the person is just plain mean, you would probably try to avoid them. Of course, the closer the quarters the harder that is.
You might talk to other owners and see if there is something that can be done, safety in numbers.
You might decide to file for a restraining/stay away order if you fear for your safety. In many courthouses there is assistance available in the form of a packet that explains the process and that contains the court papers necessary to file, without paying an attorney. Of course, again, the closer the quarters the more difficult it can be to get/enforce a restraiining order.
These are things you can do in a CID neighborhood also.
In a CID, you may get an extra layer of assistance, depending on one basic thing: is the neighbor doing something that is a violation of the governing documents? And sometimes the governing documents include a violation of the law as a violation of the documents.
So, in the case of a nuisance situation, the Board may have to take some action to abate the nuisance. To what degree the Board should act depends on the circumstances and what remedies are available in the governing documents (fines, reimbursement assessments perhaps, suspension of rights such as use of common area or attendance at meetings, etc.)
With regard to criminal or threatened criminal activity, the board may have a duty to warn about the dangers, provide more lighting, provide more security, take steps to make things safer, etc. Again, it depends on the circumstances. The Board is never to be considered a substitute for animal control or the police and if the problem suggests a call to either of these, the complaining person should do it.
For issues related to "bi-polar" (or other psychiatric or physiology-challenged or "affected" neighbors) it gets more dicey. Sometimes it is obvious when affected parties are "on" or "off" their medication because of their behavior. Sometimes its obvious someone is adversely affected by alzheimers or dementia. For these issues, you might consider the following:
***Keeping logs of activity so that if you do seek help, you can fully describe the situation and what is occurring, the frequency, times of day, etc.
***Seek help from local Social Services/Health Department representatives.
***Seek guidance or advice from the local police, or in some cases, where available, the phsychiatric section of the police department.
***Conduct some online research to find out more about the disease(s), what it means to those around the affected person, and how others handle it.
***Seek assistance from the courts or an attorney knowledgeable in HOA people type of issues.
***Write to the Board if you believe the person is likely to cause damage or harm to the association residents or property.
Beyond this, so much depends on the facts that are occurring, and what in the way of help is available in your locality. The remedies depend on the condition of the perpetrator, and also on what the documents require of the residents, and authorize in the way of remedies.
And, the path to a solution might be found in board action, rallying of neighbors, instituting a neighborhood watch, asking that fines or other penalties be imposed, etc. I hate to be evasive, but what works in one situation might not work in another.
Posted by Beth Grimm at 10:21 PM
November 19, 2007
Angry and/or Frustrated Person Strikes Again in HOA
I wish the following things did not happen. In the past few months I have received emails from owners who have been threatened by board members in a physical way, board members who have witnessed other board members in physical altercations with their fellow board members or with an owner or resident, and board members who have been threatened with physical violence by members of the association, or their tenants or family members, "better ?? halfs", or the criminal element drawn to an association by a resident. I, myself, received a threatening call from a person who turned out to be a board members mentally challenged son, stating that if I came to a meeting up in the outreaches of Northern California I would be chased all the way back to the County line.
What's the matter with people that they believe physical or other threats are appropriate, or worthy, or justified, or rational, or even any kind of solution?? They almost always escalate matters (unless of course the recipient is knocked out, in which case the matter cannot escalate at that moment, but probably will at a later time).
All kidding aside, this is one of the recent notes to me:
"The President of the Board of our HOA struck a member during a heated discussion. Even though the President may have been provoked, I believe the person should be removed from office. What do you think?"
Well, yes! Of course, ... any officer that strikes someone should be removed from office immediately, by the other board members. If the matter involved self-defense, then get help now either from the police, or an HOA attorney, or both!
Any person that holds any position of authority or leadership for the association, including board member, director, manager, vendor, etc., (that has a propensity toward violence or disrespect toward others) is a serious threat to the HOA, not only because of the propensity toward physical violence or other inappropriate actions, but because of the exposure to liability for the actions of that person, through vicarious liability allegations.
Board members and others in a position of authority must exercise restraint, learn some people skills, and live the old addage: "Sticks and stones can break my bones but words can never hurt me." In my book, there is no excuse for hitting someone when a board member is supposed to be acting as a board member (or any other time for that matter).
I except self defense, consistent with the law, which is just enough force to protect yourself or your family, or your property. But if the situation has arisen, it needs attention.
Now you might get a different answer from someone in ... say, ... Texas or Wyoming or in some area of the country where people feel that they may take liberties and fight back in a physical way or with physical threats - but not in a civilized society. Maybe some people consider this appropriate. I read in newspaper right here in California several years ago that at a board meeting in a CID in California, one board member threatened another by telling him or her that he/she (I cannot remember what the sexes were) that the board member had a gun in a shoe box in his closet at home and knew how to use it. Of course, it may not be prudent to quote a newsstory as they are not always correctely reported, but since this was an HOA that had asked me to come and interview with them, the story caught my eye. I declined the interview by the way.
The person who wrote to me about this incident also asked: "Is there a process whereby the Association President can be removed or impeached?"
The other board members can remove an officer from office, in most cases. It depends, of course, on what the bylaws or other governing documents allow. And this, in my opinion, should happen immediately. Removing the person from the board is another story. Recall elections are quite dicey and difficult under the new HOA election law but it is not out of the question. Legal assistance is probably required to get through the maze of laws, and it is not inexpensive. The members can remove a board member from office this way, but the Board cannot do it alone. And HOAs and HOA members must be extremely careful in dealing with recall so as to avoid defamation claims against them. Allegations made publicly better be true and provable, or other issues arise.
A board or member could seek removal of a board member from office by court order (not a cheap process, but perhaps a good choice in some situations), and this situation probably would qualify as far outside of the board members's good faith or capacity as a board member. At the least, in any situation where a board member is threatening physical violence, acting it out, harassing or bothering others, the board should meet with the director, take him or her out of "office" if the documents allow, consider a removal election if the circumstances warrant it, and, next time, calling the police might be in order.
Do you all know that striking someone can lead to a battery claim, both criminal and civil? Do you know that threatening someone in a manner that leads them to believe you will harm them can lead to an assault charge, criminal or civil? Early on in my days as a legal assistant to my brother (who went on to become a San Francisco Public Defender), we had a case we called the $5,000 punch. A civilian was cut off in traffic, and he got mad. He followed the 20-somethings back to their apartment parking lot, drug the driver out of the car and broke his jaw. The "victim" sued the person that called upon my brother to defend, and the "case" settled for $5,000, probably a good deal for the defendant. We always wondered if the punch was worth it.
It is more serious for HOAs as they can be perceived as a deep pocket, the same way as employers often are, and like employers, the entire HOA can pay for the indiscretions of a board member or manager. Thus, the HOA leadership needs to take charge of and deal with situations like this before they get worse, and neutralize parties that may lead to the type of claims identified here.
Posted by Beth Grimm at 10:24 AM
November 18, 2007
Board Meeting Disruptions - What Can You Do?
Board meeting disruptions are a problem in some associations. Here is a recent question sent to me: "Isn't there a law which protects homeowner meetings from being disrupted? Something that allows members to phone the police?"
Unfortunately, there are few laws that protect the association from troublemakers. Most laws that have been passed in the last few years are for the benefit of homeowners, and provide them specific rights, but there are no laws that protect board members or other owners from those meeting attendees who disrupt the proceedings. There are many things the board can try, to get past a problem like this. Adoption and circulation of a policy outlining the discipline that may be imposed for meeting disruptions is one. Use of a Sergeant of Arms may help. Threatening to adjourn the meeting and recommence behind closed and locked doors is one. Video taping meetings sometimes helps. In any case, to find out what your documents allow, and speak with a knowledgeable HOA attorney to get good advice for your association. The methods I suggest are just some of the things associtions that have consulted me have tried. Some worked for one situation, but not for another. When I advise an association, I ask for a lot of details about the "disrupters".
And in any case, you don't need a policy or law to give you permission to call the police. If someone is out of control and unwilling to listen to reason, and you or the Board feels they are a threat or danger, or a trespasser, or unwilling to leave when asked, it is appropriate to call the police.Sometimes the police are responsive and helpful, and other times they are not.
Posted by Beth Grimm at 10:07 PM
November 16, 2007
Should You Get a Second Legal Opinion Before Suing?
When a doctor gives you very bad news, especially something that involves a lot of pain, anguish or terminal qualities, it would probably be a normal reaction to say "I want a second opinion." How often does that ring true for legal issues, such as a costly lawsuit?
Some associations in California have suffered some very big losses pursuing legal actions when there were holes in the cases that were either overlooked, or not disclosed to the Board. It happens. It might be because of an over-zealous attorney, an individual or firm that needed to boost fees to cover overhead, a young and not yet seasoned attorney who was not up on the supporting authority. It might be that one attorney simply failed to ask enough questions, or questions pertinent enough to elicit the information creating the "holes". Someone may have overlooked something in the records. It may have been an attempt to "save" a Board that created the problem - by covering up the issues. It may have been that the Board misinterpreted the "legal ease". Some attorneys' prose is better and more understandable than others.
It is the board, and often the owners, who suffer greatly at a "lost case" scenario. Of course, this runs true for individuals as well. Many are "sucked" or "suckered" into lawsuits, or inappropriately advised so as to be reckless in their endeavors. And since, in California, probably as in other states, either side can easily be hit with hundreds of thousands of dollars in legal costs, theirs .... and the other parties (since if they prevail - they may have to reimburse the other side's fees and costs), the risks of filing a legal action come with a high price tag. And you cannot expect to back out and dismiss when you are forced to recognize the weaknesses, without the exposure to a motion from the other side to collect their attorneys fees and costs expended to date to defend.
A simple inquiry to an attorney from whom you seek advice, and then another, for a second opinion, is:
"What are the worst and the best possible scenarios in going forward with this [lawsuit, action, etc.....]?" You will want the attorneys to acknowledge not only the best scenaro, but also the risks. You can ask for the attorney's opinion on the "chances", but truly, there is no such thing as a "slam dunk" (I will expand on this in an article to come soon), and so if your attorney says:
"You cannot lose" or "we don't need to discuss the downside, I expect you to win", I hope you have asked the above question, and I hope you realize that you probably can lose. Things can happen and facts or circumstances can arise after the case is filed that can have a seriously detrimental effect (remember these famous words: "if the glove does not fit, you must acquit"). Surprises and unknowns wreak havoc sometimes.
There might be an isolated or unusual situation where the only options available involve a lawsuit, and so you have to look at a lawsuit - but - ask the attorney for all of the options related to "causes of action" and find out whether including all in a "bucket" sort of mentality might jeopardize your ability to "prevail" and collect reimbursement of fees. If you win one count and lose one, its unlikely you will recover all fees, and may not recover any.
And get a second opinion asking the same questions: "What is the worst possible case scenario with this action?" and "What is the best case scenario with this option." And then you might also tag on "What are the other options - all of them." (In other words, "What are our options or what will happen if I/we do not sue?")
Some attorneys need to be more careful as well, in presenting too pretty a picture about a legal process that exposes a client to a multi-thousand dollar risk. Some have gotten sued for failure to properly advise clients of the upside and the downside of a proposed course of action.
Believe me when I say, if someone or some association loses a bundle of money, or is exposed to large losses, they will be advised by attorneys to look at all possible avenues of recovery. That "laundry list" includes the professionals advising the Associations and individual clients.
However, it is very important not to point the finger in the wrong direction without justification and evidentiary backup. That, too, can lead to a large and painful judgment.
Posted by Beth Grimm at 11:03 AM
CRIME IN NEIGHBORHOODS - CAN YOU POST "NEIGHBORHOOD WATCH" SIGNS?
I commonly get questions about what to do about crime in neighborhoods. There are often various conflicting ideas about what should be done. Here is a question related to a group that wanted to get a neighborhood watch going but met resistance from the Board. The Board's concern apparently involved losing important liability protections including insurance coverage that might flow from helping the owners with the NW program. The Board may have been concerned about encouraging "vigilante" activities. As usual, there are many facets to the question of how far a Board should go in trying to prevent crime, and maybe even, how far the Board should go in "encouraging" owners and residents to act. Here is the question:
QUESTION: Does the Board of Directors have the right to refuse the posting of Neighborhood Watch Signs? How can five members of a board be in charge of the safety of a large residential community?
ANSWER: There are considerations above and beyond the simple question of whether the Board can prohibit the posting of Neighborhood Watch signs. As a simple answer with regard to the question of posting signs (IN CALIFORNIA), it would be my belief that the sign law (IN CALIFORNIA) would allow owners/residents to post neighborhood watch signs in their windows as they would qualify as noncommercial signs and banners which the board may not prohibit. My understanding of the NW signs are that they are small, and usually placed in the windows of the people who participate in the neighborhood watch, so those folks can identify each other, and if someone is in distress they can feel free to go to one of those houses. The law says:
“1353.6. NONCOMMERCIAL SIGNS, POSTERS, FLAGS, OR BANNERS; PERMITTED PLACEMENT OF POSTING OR DISPLAY; EXCEPTIONS.
(a) The governing documents, including the operating rules, may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in an owner’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.
(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.
(c) An association may prohibit noncommercial signs and posters that are more than 9 square feet in size and noncommercial flags or banners that are more than 15 square feet in size.”
Now, as to the Board's duty to respond. In my experience with communities suffering from high or increasing crime rates, the more the owners and residents are watchful and can provide meaningful information to the police, such as descriptions of vehicles and people, timing of unwelcome foot or vehicular traffic, etc., the more likely the community is to get the "better" of any criminal element that may be lurking. The movement has to come from the people, the Board cannot fix the problem alone. Criminals tend to move out of a community if the heat on them becomes too hot. If they know they are likely to be watched, they will commonly go somewhere else.
On the other side of things, the posting of these signs tends to lead people coming into the development, perhaps with purchasing a home in mind, to believe that there is significant crime, so it can be a deterrent to sales, and thereby affect property values.
That said, the Board is not "in charge" of stopping crime. But it does have some responsibility toward the members as a "fiduciary" (person or entity in charge of the assets of others).
My approach would be to advise the Board that it is appropriate to afford those who want to get involved in a NWP with a venue, and have someone attend the meeting who has expertise in dealing with community issues like this (someone from the PD and perhaps an experienced lawyer, and some communities have a person who helps groups prepare small claims court cases to present locally) to explain to those present (board and residents) what sort of things are allowed with the NW and what are not (such as vigilante type of activities - threatening, cornering, approaching or fighting with those who come into the neighborhood intending bad activities). It is important to advise the Board and members that the Board is not charged with stopping crime, but rather, that is for the police. However, it (the Board) does have some duty to warn, and I believe arranging for a town hall meeting for the purpose of discussing the issue and allowing the neighborhood watch to operate and allowing the placement of signs helps meet that burden. If there are identifiable specifics or patterns in activity, then there may be more that is needed. If the criminal element is drawn into the community because of a resident, the group may want to look at the "mass owner/family/resident small claims remedy for nuisance". I do not believe that the insurance in place to protect directors would be problematic, unless of course a board member harassed or shot someone or took some action that was outside the scope of a board member's reasonable duty.
Posted by Beth Grimm at 9:17 AM
November 10, 2007
A New "Twist" On The Clothesline
I have been reading up on the clothesline issue, just because I have an insatiable curiosity and determination to learn more on just about every subject pertaining to my area of the law, and have been asking people what they think about whether the sight of clotheslines are bothersome (or maybe more appropriately, what hangs on them). I was in Iowa recently visiting my mother, and I asked her this question. Always surprisingly up on matters relating to property (she was a realtor and property manager for about 45 years of her life), she said that Iowa City (a thriving metropolis and melting pot in the middle of the country where I was born) passed an ordinance declaring that clotheslines were an "attractive nuisance". This essentially means that if you leave a clothesline up in your yard and a running (tall) child or burglar hangs themselves up on it, you are guilty of a "tort" (no, that's not "tart" or "torte" )- in terms of the legal world, a tort is sort of like a crime but in the civil context, meaning you may have to pay for the commiting the deed - possibly pay dearly. You probably won't have to go to jail, but you may lose your life savings.
Now this surprised me, because I got my love of wind and sun dried sheets and towels and my mindset of equating laundry on the line with something good, having been raised in the midwest, where neighbors seldom complained about anything their neighbors do (yes, I mean just about anything). The openness of the backyards and friendliness of the neighbors talking across - well, there aren't even very many fences, was always appealing. And undaunted, many Iowa Citians have simply gone to a cement hole in the ground, covered in plastic for easy riding mower capability, with a portable "parasol" type of clothesline that goes up only when used for drying the day's laundry.
So, even in Iowa, the permanent backyard clotheslines has a somewhat negative connotation, at least in Iowa City, where the temporary student population "visiting" the University of Iowa for 3 or 4 years just voted down, much to the chagrin of my mother's generation, raising the drinking age to 21 (it's 19) and the college is grappling with a scary thing called "thirsty Thursdays" where students pile up their classes Monday through Thursday so they can have an easy Friday and extra night of drinking on the weekends. Hey, maybe the ordinance was passed to save the drunken college students who might be taking a shortcut back to the dorm. Who knows? All I know is that clotheslines are a delicate subject, maybe even more delicate than what one sees hanging upon one. It isn't all about the tree huggers vs. the snooty property dwellers after all.
Posted by Beth Grimm at 9:29 AM
November 8, 2007
Move In - Move Out Fees - Are They Legal?
This question came in recently:
"Our board recently increased the move-in and move-out fees and the board will collect [more than $600] for every change of residents in a given unit. I question this fee as being out of line with California Civil Code requirements that fees not exceed the costs of that for which they are imposed. Is this legal?"
I get asked this question by clients and non-clients. Sometimes boards do this and really believe it is the best way to go, or claim the money is for repairs after residents (owners or tenants) move out. Some believe that tenants are the problems, and will not acknowledge that owner move-in move-outs can be just as difficult. If I ask about what repairs were needed as to the last move, or the one before that, or the one before that, I commonly get a blank look. In other words, boards cannot often identify damages that justify the fees. If a Board was challenged on them, I think there may be a need to justify them. If the CC&Rs have such a fee, it might be easier to defend, but boards who adopt these kind of fees in the rules can run into problems trying to enforce them. There are certainly cases where they are justified, such as a case where in a high rise, special security measures might need to be implemented that cost extra money for the Association. Perhaps special parking arrangements have to be made (such as in San Francisco) that result in extra costs. If there is a situation where there is an extra cost, the fee could be justified. Maybe there are extra administrative costs (but do they justify a $600 or $700 or more fee?
Now, what is a board to do about a situation where a tenant (or an owner for that matter?) damages common area when moving in or out? The answer would be found in the governing documents, and it might be in the form of a reimbursement assessment, an individual special assessment, or a damage assessment.
I would go for the "damage" reimbursement for the guilty parties, rather than a flat fee, unless there are extra costs that arise when tenants move in or move out, or have a fee for everyone if the extra costs apply to everyone.
Not all attorneys agree with me. But I think many do.
Posted by Beth Grimm at 10:06 PM