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May 31, 2010
More on Dogs, Namely Pit Bulls in HOAs ... Condos
I like it when readers weigh in on important subjects. I get more prespectives. I have certain biases, like most people, and do my best to suppress them when trying to provide balanced information and opinions. Here is a perspective on pit bulls:
"Hello, Beth,
After hearing in the news taday of still another child's death from a pit bull attack, I feel terribly concerned for my grandson living in a condo development with a pit bull a few doors away. I found your site (which it wonderful, by the way) while searching for information on homeowners' associations that may have prohibited such dogs, and whether it is possible to have such a restriction.
Since owning pit bulls is not illegal, I wonder if individual associations can make such a ruling on their own. I would appreciate your knowledge about this."
An HOA or Condo association board could present a document amendment proposal (CC&R amendment probably) that would prohibit certain breeds of dogs. I would recommend sticking to the list of 11 breeds of dogs that are uninsurable by some insurance companies. A CC&R amendment would require approval of members. There is a published list of dogs considered to have dangerous propensities based on insurance actuarial figures on liability related to dogs.
I would not recommend targetting one breed of dog but sticking to something objective as a basis for the proposed amendment.
Some attorneys might recommend adopting a rule that would prohibit the pitbulls or list of dogs, if inclined to advise a board on the subject. Most governing documents allow boards to adopt rules. I believe it safer to shoot for homeoner approval of a CC&R amendment on this subject. However, unless a dog has shown threatening or dangerous propensities,I would recommend that any dogs already in the development that would be prohibited by the new amendment or rule should be "grandfathered", meaning it/they could stay unless they were to cause a problem. Attorneys might disagree on this point.
Posted by Beth Grimm at 8:32 PM
May 27, 2010
What Can A Small Claims Court Judge Do?
A common question is how much teeth does the law have? In otherwords, what can an owner do if he or she thinks that a board is not following the law? Here's the specific question for today that was sent by a reader:
"I discovered some of your excellent Internet material today and have a question about cases in
Small Claims Court involving damages for violations of law by homeowner associations when
the statutes do not seem to specify any damages. For example, if an association deliberately
violates a board member's right to be present at a board meeting, would the judge conclude
that that is very interesting, but no financial damages will be ordered by the court (I realize
that there may be some non-financial consequences such as a decision that the board
meeting may be void)."
A small claims court judge or referree would likely ask the owner why they are in court, and what they want. There are no monetary loss type of damages specified as a consequence of violating the requirement of allowing owners to attend open meetings or address the board at such a meeting. For this particular question though there are potential consequences in the form of a $500 fine that the judge may impose for any violation of the Open Meetings Act at Civil Code Section 1363.05. The remedies for violation of the Article that encompasses this statute are in Civil Code Section 1363.09. They may not seem clearly stated to a layperson but a judge should understand them.
There is of course, the story of the "other side" to consider and the Judge will want to hear it. Maybe there is a good reason for ousting an owner from meetings.
It is not as easy to find a remedy for something like a board's avoidance of the law requiring it to send out an IDR-ADR or insurance summary or being rude to owners at meetings as one cannot generally show any monetary loss for that.
The small claims judges were given additional authority though, last year by some new law that justifies "injunction" relief if the underlying law that is violated allows for it. It is a somewhat complicated get around but if a person (or board) is trying to enforce a CC&R restriction and takes it to small claims court looking for the judge to order someone to do or stop doing something, and the judge reviews the CC&Rs and sees that owners or the board can get "equitable relief" for the violation (which is an order to do or not do something), a judge or referee might take it upon themselves to make this connection and render an order.
Are you confused yet?
I have done earlier blogs on small claims court remedies, and am considering doing an E-Newsletter in the coming months on the topic. So sign up for the free E-News at the condoguru site if you want to stay on top of things.
As for a simple answer to the general subject of small claims, there are a number of monetary remedies now in the Davis Stirling Act embedded in some of the laws, which were put there by legislators to promote consequences. One has to look for them, and getting good legal advice (I emphasize good - never hurts).
Posted by Beth Grimm at 11:18 AM
May 23, 2010
Fake Security Cameras - A Good Idea?
In the past I have suggested that an association in a highrise building with some entry by seedy people who were perceived to be undesirable gamblers put up signs that the building was "under surveillance" as a means of discouraging visits by people who would not want to be photographed entering thee premises. (The association did not want to spend the money for security cameras.)
Since then, there have been some discussions each year at the annual CAI law seminar about cases involving security issues where owners who were harrmed sued claiming that having the security personnel created expectations about their safety. The suggestion was that associations had to be careful if they hired security because it could create a false sense of security, and therefore, if there was any crime on site, having ineffective security could be worse than none at all. Thus, it could backfire.
I do not know of any case where an association put up signs indicating that the premises is "under surveillance" and got burned for it. However, it could get "sticky" if there was a crime and the police asked if there were any tapes. On the other hand, "under surveillance" can mean a lot of things not necessarily involving tapes.
Here is an email from a reader who wants to know the ramifications of going a step further and installing "fake cameras" in site to give the impression that people were being taped.
"Thank you for all that you do for the HOAs. I have a quick question. When we had a reserve study performed, the person doing the study said that the fake cameras that we have around the property were against the law. He explained that 2 years ago a woman was raped at an HOA that had cameras, she was under the impression that the cameras were working cameras, but when she found out they were not, she sued the HOA and won. Do you know if this information about the cameras is correct, and the law changed to no fake cameras are allowed at HOAs?"
It is possible that there was a case; however, sometimes people mix up info from various cases when they hear too much information at a seminar or multiple seminars. There was a case many years ago where a woman was raped but that fight was over security lighting.
Anyway, it is conceivable that there was such a case, but I am not aware of it - does anyone out there know of one?
If an association creates an "illusion" of security without providing any, I do think it could be a problem. In some cases, bright motion lights might work as well. They can tend to deter nighttime theft and related security issues.
Posted by Beth Grimm at 10:33 PM
May 17, 2010
Variable Assessments in HOAs - What's Right?
Variable assessments cause a lot of consternation for associations, especially those that do not have professionals to guide them. There are all sorts of questions that arise. Here is one example:
"HI Beth, I think your articles dealing with hoa's are wonderful! so thank you for that. I had one topic that I didn't see discussed, We are a small hoa that started 10 years ago, and initally, we just broke down the hoa dues of 3 units into total bills / 3 (this worked for years, but now our insurance has skyrocketed, and the hoa dues are now way skewed. So here is the break down of the units 1850 sq ft , 1950 sq ft, and 1200 st ft. so initally it was established that even though there are different sq footages we each use the same amount of garbage typically. But in the last couple years our insurance went from $1200 - $4000 and the larger units are of course getting much more coverage then the smaller units. The reply from the hoa was that well as far as liability its all shared equal, but the fire covereage should be divided by sq footage only.
Here is my question - is there a general breakdown of how hoa dues should be or are required to be split with ca hoa's? Im in the smallest unit so I feel that Im paying more then my share for the other units benefits, and in a 3 condo vote, the 2 large units seem to always out vote me. "
It is unfortunate in associations where the majority has the power to make decisions that force the minority to pay more than their fair share. However it is important to note that it is more likely that the governing documents of the association dictate the proper legal allocation of assessments than any vote of a board, meaning look in the CC&Rs to see how the assessments are allocated. When square footage ratios come into play, there still often are some expenses that are shared equally. Often, things like garbage, management, and general operating costs are shared equally while painting, roofs, siding, insurance and other expenses related to the maintenance of the buildings is shared pro rata. It becomes complicated when an association has to collect equal assessments for operating costs and recreational facilities like pools and clubhouses, and then have to have a separate allocation for reserves for the building improvements housing the units.
Still, difficult or not, unless a proper amendment is passed changing the allocation (which sometimes requires a high percentage of member approval AND lender approval), the allocation in the governing documents is the legal allocation.
And if persons get together and set up a condo ownership situation without legal advice as to how to set it up properly and in a manner that protects fairness, opting instead for the informal process that requires a member vote on important decisions, and that leaves one party at a disadvantage, I don't know what to say other than I guess you get what you pay for.
Posted by Beth Grimm at 10:12 PM
May 12, 2010
Proxy and Quorum Questions Come Up Again
Here are some questions and concerns about proxies and quorum:
"In the condo association that my condo maintains, the board will usually solicit proxy votes for the meeting issues. Then no one shows up for the meetings. As a former government official I am concerned and disturbed by this. My understanding of Roberts Rules and all associations I have been involved with that allow proxy votes, still require an actual quorum be present, even if proxy votes are used. Are condos governed differently? Thanks for your help."
First of all, for a valid membership meeting where any action will be taken, or any election for that matter, a quorum must be present or the meeting or election will not be legally valid and could be challenged.
A quorum for a meeting can be established through proxies; however, if there is a board election, or an election to amend the CC&Rs or Bylaws, or an election for an assessment or assessment increase, or transfer of common area to an individual owner, the election must be held by secret written ballot and the ballot packages count toward the quorum. In such a scenario, a proxy holder would have to obtain a ballot package in order to vote and turn it in to be counted toward the quorum.
Because of these complications, some associations have done away with proxies by posing an amendment for owner approval to the Bylaws.
So, what seems to be a simple question can be complicated when proxies are involved.
Posted by Beth Grimm at 10:12 PM
May 4, 2010
Public Flogging - What is the Worst That Can Happen?
I receive a lot of emails from all over the country about goings on. I know that people get seriously angry when things happen that they think are unfair. Many come to lawyers wanting to sue. Some, when they find out the cost of a lawsuit (which seems to be a mentality that is hard to shake), turn to things they CAN DO cheaply. But choosing the easier path doesn't always turn out to be the cheapest form of blowing off steam.
Here is one story that you won't want to ignore, which is taken from a Press Release issued by the owner of the property.
"PRESS RELEASE - FOR IMMEDIATE RELEASE
Gatlinburg, Tennessee Home Owners Association Files $1 Million Lawsuit
Against Blog Author and Property Owner
A Tennessee Home Owners Association has filed a $1 million lawsuit against one of its property owners for defamation, libel, slander, and false light invasion of privacy. The property owner, Robert Goodman, has operated a blog that has heavily criticized the actions of the HOA’s general manager and board of directors for alleged violations of both its own HOA controlling documents and Tennessee state law. The HOA board has filed the lawsuit in an attempt to force virtually all content to be removed from the blog and prevent any new entries."
The blog is at www.DeerRidgeOwners.com. I provide this information and not because I have any specific information take on which side is right or wrong, but merely as straight up information of a possible "worst case scenario" to consider illustrating what can happen when an owner speaks out in a derogatory way publicly about his or her association or board, especially in a way that can reach millions of people. Use of the internet communication systems as a mean of lambasting any party can escalate any differences and damages in any lawsuit that might occur.
I have not visited the blog, but it seems it might serve as a model of what-not-to-do if you don't want to get sued. This type of situation could happen in the reverse as well if a board defames an owner (the only defense to defamation is the truth but as you can imagine, there are other potential issues like violating rights of privacy, etc, when negative information about a party is sent distributed publicly). And, even when there is a viable defense, litigation is painful and costly in many ways.
In California there are many ways for an unhappy owner to approach your board or for the board to approach owners about association issues short of public flogging (by either side).
Posted by Beth Grimm at 10:38 AM
May 3, 2010
Must a Board Give An Owner A Chance to "Cure" Before Fining?
In a recent email message a reader writes:
"Beth, is it required for the HOA to send a Notice and give the condo owner a chance to remedy the issue before a fine is issued ?"
The answer in California law is that it is necessary to give a hearing notice before fining, but the law does not require that the board give an owner a chance to cure. Whether it is fair or not really it depends on the circumstances. For example, If someone has done something or failed to do something that can be reversed or fixed by the owner, I believe the board should give the owner the opportunity to fix the problem before a fine will be considered. But if the problem cannot be fixed, or the owner has been warned on prior occasions, or the situation if left unattended might invite others to do the same thing, the board might be justified in fixing it right away without further warning.
Posted by Beth Grimm at 9:19 PM