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March 25, 2008
Do You Need An Attorney For Noise Issues?
Here I am on the noise kick again. This question is asked of me about every other week.
"Can you please recommend an attorney that is willing to represent a homeowner? I am getting close to exhausting my avenues of getting noise problems resolved."
People get to the end of their rope and think an attorney can solve their problems. What (unforetunately) often happens is that the person that is suffering then ends of suffering from two ills: foottfall noise from the unit above and a cash flow problem. Why? It is difficult to get satisfaction unless there is a clear violation of some kind to pursue. What can happen is that both sides of the dispute make what sound like reasonable arguments about what is right and what is wrong.
Here are the most common complaints:
**A toddler or toddlers running, jumping, playing with toys, dropping objects, etc. creating noise magnified by hard surface floors.
**A lack of rules in the HOA prohibiting hard surface floor coverings in second-floor condos.
**A lack of oversight by HOA architectural committee concerning sound-reducing materials or carpet.
**Neighbors exercising their "right" to have hardwood floors.
**Lack of awareness of the extent of the noise at time of purchase because unit above was equipped with padding and carpeting.
**Denial of responsibility by upstairs owners to install any sound-reduction materials or to mitigate noise in any way.
**Denial of HOA to do anything, claiming the problem to be "one between neighbors and none of their affair".
**A claim that the upstairs neighbors have a right to "decorate" their unit as they wish, under the CC&R's.
In some cases, the downstairs owners have even gone so far as to volunteer to pay a portion of reasonable costs of carpeting and the upstairs neighbors will not even talk to them about the possibilities. Some owners resist carpeting stating that they have allergies. (A suggestion of cork flooring in traffic areas may not have been discussed or considered.)
I have suggested in past blogs to try and engage the other side in a mediation to discuss the mitigation possibilities. I have talked about the availability of low to no cost mediation services. Of course, if a person simply cannot get the parties (other owner, possibly association), to come to the table, there is another possibility that does not cost an arm and a leg.
I do not recommend this option as a first step, but it may be an alternative to giving up because you cannot afford an attorney. There are public and private nuisance laws. Most governing documents have a prohibition on unreasonable noise. The Civil Code (in California) has a nuisance law. A person can file a small claims court case for about $25, pay about $20 per party to have it served, and (in California) ask for up to $7500 in damages for nuisance. This is a place where one could "test their theory" that the noise above is unreasonable, because of conditions create by the neighbors.
I do not think any judge or hearing officer would award damages just because of kid or family noise during the daytime; however, I do believe it is possible to get the right kind of attention from a hearing officer or judge who believes that the failure to mitigate the noise in any way, shape or form and the failure of any party to even consider mediation are grounds for either some award of damages, or at the least, a warning to the upstairs neighbors to take some kind of reasonable steps to mitigate the noise (or risk having to come back to the court and answer for not doing so).
On the other hand, if you take your "case" to small claims court and do not have a reasonable position to present, you can expect to be disappointed.
For more on noise and other difficult issues, check out my new book recently released (THE CONDOMINIUM OWNERS ANSWER BOOK) at http://www.californiacondoguru.com - navigate to the "publications page".
Posted by Beth Grimm at 7:43 PM
March 23, 2008
EARTHQUAKE COUNTRY - Do You Know Where You Live?
How many of you think you don’t live in earthquake country? The CEA considers the entire state of California to be "Earthquake Country".
Well, it is scary to think about “the big one”. But if it happens, you will wish that you had been more prepared. An article in the works about “The Hayward Fault” suggests that it might be “America’s Most Dangerous” [fault]. To see the preview news article, go here: http://www.usgs.gov/newsroom/article.asp?ID=1899. The final article will be released soon at http://www.cat-risk.com.
So is it time to prepare yet? I would say that is a definite yes. If you visit the website address above and read the entire article, you will see what kinds of things need to be done to prepare. And, maybe its time again to think about earthquake insurance(?). You may be the judge of that. On that subject, visit www.californiacondoguru.com for many articles on earthquake insurance - and whether to buy or not to buy it.
Here are excerpts from the news article about the Bigger Article coming soon.
______________________________________________
“An earthquake of M6.8 or greater on the Hayward Fault, in the heart of the San Francisco Bay area, is increasingly likely. The last major earthquake on the Hayward Fault was in 1868, 140 years ago: research by the U.S. Geological Survey (USGS) and others indicate the past five such earthquakes have been 140 years apart on average. In marked contrast to Hurricane Katrina where uninsured losses were approximately 60 to 70 percent of total economic losses, more than 95 percent of projected Hayward Fault earthquake residential losses and 85 percent of commercial losses will be uninsured.
...
'Bay Area residents, businesses and local governments need to take action now to reduce future losses. ... Public and private organizations have already invested over $30 billion to retrofit or replace vulnerable buildings and infrastructure, but more needs to be done,' said Tom Brocher, seismologist with the USGS. Until the Bay Bridge and BART undergo major retrofits, they remain vulnerable to earthquakes and more than 180,000 daily commuters who currently use them could face having to take overtaxed alternate routes for months. Similarly, until the Hetch Hetchy aqueduct system upgrade is complete, earthquake-related activity could cut off water for 2.4 million Bay Area residents, according to a recent report by the Bay Area Economic Forum. ... "People should realize there is a possibility that they won't be able to drive home from work or pick up their children from school," ... A Hayward Fault earthquake could close 1,100 roads, including 900 in Alameda County alone ... Oakland and San Francisco international airports and nearly all the region's port facilities are built on materials prone to earthquake damage. As a result, the capacity to deliver the goods needed to support recovery would be significantly diminished."
You should definitely read the Article.
Posted by Beth Grimm at 9:52 AM
March 13, 2008
How Should Architectural Review "Appeal" Processes Work?
One of my readers sent in this question about architectural review. He is an architect, working with various HOAs to do architectural review. This is what he has to say:
"My firm provides architectural review services to a number of associations. Some association Boards have a policy of reviewing ARC appeals only to determine one of two things, the applicant is seeking a variance or the applicant is claiming inappropriate procedural actions by the ARC committee. They do not reevaluate the submittal for its subjective merits as evaluated by their architectural consultant and ARC members.
Some association Boards end up reviewing every submittal that was denied by the ARC and expend a great deal of personal time visiting the site and reevaluating the architectural merits of the submittal.
Are there some specific laws that govern the required review / appeal process? Are both doing it right? Is one doing it wrong?"
I am not sure either process is "wrong" because there is no specific definition written in the statute and there might be attorneys who would disagree with me. However, I would interpret California Civil Code Section 1378, since it provides the right of "reconsideration" (as opposed to right of appeal), to mean that if the Board is a different body than the ARC (Architectural Review Committee), and a request for reconsideration is made, then the Board should take a look at the plans that were submitted and analyze whether to accept or reject the ARC's position, or suggest something different (such as conditions).
Here is what the statute says about the subject:
"If a proposed change is disapproved, the applicant is entitled to reconsideration by the board of directors of the association that made the decision, at an open meeting of the board. This paragraph does not require reconsideration of a decision that is made by the board of directors or a body that has the same membership as the board of directors, at a meeting that satisfies the requirements of Section 1363.05. Reconsideration by the board does not constitute dispute resolution within the meaning of Section 1363.820."
One reason there may be confusion about the review process is that some documents provide a right of "appeal" and sometimes that is defined, and people figure it is sufficient under the statute that calls for fair and reasonable processes. However, in the courts the "appeal" standard of review is (very generally) limited to a determination (such as in an owner vs. an HOA case) as to whether the "body" making the decision on the first round abused its discretion, or if there were lower court procedural issues. Therefore, if a Board is reviewing plans in a more objective manner, only to determine if the owner is asking for a variance or is complaining about procedural missteps, the decision to do it that way may relate to some commonality with the court appellate standards of review.
As for my view, I would go looking for a definition, and "Webster's" is a good place to look. Webster's dictionary defines "reconsideration" as "consider again with a view toward changing or reversing." At the National CAI law conference in January, there were a number of cases where the courts in other states turned to the dictionary for definitions that were not apparent in the law or documents being reviewed, so it is not a stretch.
So that's "my two cents worth" on this question ...
Posted by Beth Grimm at 8:45 PM
March 10, 2008
What Controls in HOAs - the Documents or the Law?
Below is a question I received from a reader in the State of Washington. While I cannot answer anything that might be perceived as giving legal advice in another state, I can give a practical answer to the question:
"Which controls, the governing documents or state law?"
My answer is a common "lawyerly" answer. It depends ... on how the law and the governing documents are written. In California, if you see the word "notwithstanding" preceding a provision in the law, that generally means the law controls over the governing documents.
An example of this would be a law that says, "Notwithstanding anything in the Declaration, the Association shall maintain the .... and the Owners shall maintain the .... ." On the other hand, if the law says: "Unless the Declaration otherwise provides, the Association shall maintain the ... and the Owners shall maintain the ...." and there is a clause in the Declaration on the subject, then the Declaration would control.
You have to be careful though. Civil Code Section 1366 is a prime example of a difficult law that is hard to interpret. It says:
" Notwithstanding more restrictive limitations placed on the board by the governing documents, the board of directors may not impose a regular assessment that is more than 20 percent greater than the regular assessment for the association's preceding fiscal year or impose special assessments which in the aggregate exceed 5 percent of the budgeted gross expenses of the association for that fiscal year without the approval of owners, constituting a quorum, casting a majority of the votes at a meeting or election of the association conducted in accordance with Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title 1 of the Corporations Code and Section 7613 of the Corporations Code. For the purposes of this section, quorum means more than 50 percent of the owners of an association. This section does not limit assessment increases necessary for emergency situations."
This kind of language even gives lawyers fits. What it means is that Boards can raise assessments up to 20 percent each year, and can impose special assessments that do not exceed 5% of the budgeted gross expenses, without a vote of the membership. If a vote is required, the approval requirement is a majority of a quorum and for this purpose, the law controls as to quorum, and not the governing documents.
Would you have interpreted the statute that way? Wouldn't it be nice is the answers were as simple as black and white?
Posted by Beth Grimm at 8:46 PM
March 8, 2008
Setting the Record Straight on Homeowner Forum
I wrote a blog awhile back about homeowner forum time. An owner had written in and said that the Board was requiring homeowners to fill out information cards before the forum time and they had to state their name and the subject of their comments. The owner found this very offensive, and I would too, if the motive was improper.
Thus, I wrote the blog from the perspective that if the Board was doing this in order to censor the comment, that would be inappropriate, as there is nothing in the law that allows the Board to censor homeowner comment in the forum time.
Luckily, and feeling much like Dear Abbey now, I received a few emails from board members in response to my query for information on the topic, explaining why they require comment cards, and it makes sense. They want to be able to verify
(1) That the person speaking is actually a member of the association, and
(2) That persons speaking on the same subject matter can be grouped in the forum.
I believe this is a very good idea. And so I stand corrected and admit that new information has changed my perspective on this topic.
And, lest anyone think that my views on freedom from censorship should allow members to act out, threaten, cajole, defame, or make a general arse of themselves, well, that is not true. It is always my assumption in answering inquiries that people will be inclined to be civil. But of course, that is a rose colored glasses view of the world. I will say that anyone speaking on any subject will be much more likely to get more of the right kind of attention if they appear rational (as opposed to highly emotional - making people wonder if they are thinking straight), prepared, pragmatic and civil.
For those that are interested, I am reading a very good book called "Choosing Civility" which is about "The Twenty-Five Rules of Considerate Conduct". In the Foreward, the author, P.M. Forni, who is a cofounder of the Johns Hopkins Civility Project says: "Civility is a wonderfully effective tool to enhance the quality of our lives."
If anyone stopped for a moment and thought about this, in any HOA situation, it would make sense. It applies equally both ways in any communication. Why? Because people tend to react in the same way they are approached. If you lead with anger, you are likely to get it back. The same goes for leading with impatience, distrust, disdain or contempt, or, as a contrast, compassion, kindness, consideration, understanding and acknowledgement of position, even when you do not agree with the points being made.
Really people, everyone could try a little harder without breaking a leg.
Posted by Beth Grimm at 8:57 AM
March 5, 2008
PARKING IN THE GARAGE, WHAT IS SO MISUNDERSTOOD ABOUT THAT?
I guess its time for a blog on parking again. It's been awhile. The questions are all over the map, so this blog will concentrate on garage parking ... or not parking in the garage. Lest you do not want to read on, let me preface it by saying that today, it is my belief and understanding, which is often stated in building plans and governing documents, that garages are constructed with homes with the intention that they would be used for parking the family or resident vehicles. Granted, many were built before the Hummer was re-invented for personal transportation (and you are probably saying by now here she goes again on the subject of Hummers). And granted many, many developments with shared amenities are short of viable parking spaces. But even in those that are not, it would be safer and more aesthetically pleasing for the neighborhood if the residents parked their vehicles in the garages, instead of on the street or in the driveway. Anyone who disagrees with that just does not, in my opinion, get it.
I understand that many homes are built with one or two car garages, and there are two or three or more drivers, so someone gets shut out. But the bigger problem seems to be that Americans store too much crap, and it ends up in the garage! They store stuff for themselves, their kids, their parents, their businesses, their aunts, uncles, cousins ..... and it goes on and on. Some run their businesses out of the garages, like woodshops, car repair services, home offices, workout studios, or storage of pool supplies, etc., etc.
It would be less than honest of me to say I always thought this way. There was a day when I was younger, in a relationship with someone who had an interest in hydroponic gardens and making frames for my photography so we could do craft shows, and when I had small children that were safer riding their trikes in the garage than on the street, renting a townome in a development with no sidewalks. However, when approached by the Board about using the garage for its intended purpose, I did not try to buck the system. We conformed. We understood rules, once someone told us what they were and why they existed. Once I understood what was expected, I was okay with it. And once the garage was cleared out, the cars went in, the basketball hoop went out, and we enjoyed family basketball (boy you are probably saying, basketball hoop too?) Basketball hoops were allowed. But that is beside the point.
So here is the latest question from a reader:
"Our CC&R's state that: ... no owner shall convert his or her garage to any use which prevents its use for the number of vehicles owned by the Owner..."
This person had a lot of complaints, like where does the Board get off thinking that this means a resident has to park his car in the garage, what makes the Board think it can require an owner to open their garage and allow a picture to be taken, what makes them think they can fine people whose vehicles are not parked in the garage, and why should they have to park their vehicle in the garage even if there is room.
Sorry, but you're not getting my sympathy with an attitude like this. A Board does have an obligation to consider what is best for the comunity and allowing cars and vehicles to pack the driveways and streets does little for property values. Parking on streets creates quite a dangerous situation if there are kids playing with balls in the yards nearby or crossing the streets. On a softer and kinder note, people do have teenagers and extra cars, and do have difficulty navigating their large family or other vehicles in their garages, especially when there are stored items there as well, so I know it can be difficult.
Still, in most cases, I imagine it is the family or residents coming to the home/garage that have created the fight over garage parking because of something they feel they should be able to do - it's called the "King of the Castle" syndrome.
Boards do have considerable authority to implement rules about garage use and driveway and street parking, if the documents contain language like the above and also authority to adopt rules. This is not to be perceived as legal advice as to any given situation, just informational. So be careful before you buck the system. Sometimes ignoring or fighting rules can lead to fines, reimbursement of costs and sometimes even legal fees, and sometimes even worse trouble. So let it go, and get good advice before making a big mistake.
Posted by Beth Grimm at 10:02 PM
March 3, 2008
Pets In The Pool - Yay or Nay?
I get lots of questions about pets and have not written a blog for awhile on the subject. There is just so much in the world of HOAs to write about. Anyway, here goes!
This is one of the questions I received: “What is the rule of law for California with regards to dogs on leash in the "pool area" ... if dogs are on the leash, and are not a threat to anyone, because of their distance from others, it seems cruel not to allow a dog to sit outside in the sun as opposed to having to stay inside.”
I might make some enemies in saying this, but what’s keeping a person from taking their dog to the park on a beautiful day? Sunning by the pool may be our thing to do but most dogs would probably be happier chasing a frisbee. So ... are you thinking of you, or your dog first?
The questions go on to say:
"Pets add a lot of the life of people, and to exclude pets from all condos, is not realistic and unlawful."
I see barring pets from the pool area as something completely different than barring pets from the development so there is no logic in this statement at all. Pools are not constructed for the pleasure of animals; they are an amenity added for the pleasure of the residents.
There is more:
"I live by the pool and I will say that the kids down there are a lot louder then the noise my dog makes."
No doubt. I had the quietest dog in the world for about 16 years - her life, but that does not mean that I would take her to a public pool. I have grandchildren that can be loud when excited, I would take them to the pool.
There are those that believe that is fine to take animals to the pool area, and those that believe it is not fine. If we were talking about a service dog, it might be a different discussion. However, in my experience many people that push the envelope - such as - let the dog in the pool, thinking "okay, if they are welcome in that area, that must mean they can swim in the pool, or drink from the pool, or retrieve balls thrown in the pool."
That, I feel, is where the envelope might very well be pushed if pets were allowed in the pool area.
Posted by Beth Grimm at 7:10 PM