California Condo & HOA Law

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June 24, 2010

DO YOUR PART IN HELPING WITH QUORUM REQUIREMENTS FOR HOAs

APATHY in HOAs and Condos is a very big problem. If you want to be part of the solution rather than part of the problem, now is a good time to contact your legislator if you live in an HOA or Condo and are experiencing any problem at all getting a quorum for board elections. Many associations do have this problem. A California group called the Community Associations Institute - California Legislative Action Committee (CAI-CLAC) has sponsored a bill that would allow HOAs and Condo Associations to take advantage of a lower quorum requirement for a board election if the Association board makes a good first attempt to get a quorum of owners to respond in an election. The bill has met some unexpected opposition and a critical hearing date has been moved back to allow Californians to weigh in on the bill.

Here is some pertinent information to assist. Note the immediacy please!

FROM CAI-CLAC:

"These Senators NEED to Hear From YOU NOW Regarding AB 1726:

The bill allows Associations to conduct their annual board elections with a lower quorum (33 1/3%) requirement on the second election attempt if their first attempt fails to obtain a quorum of 50% (plus 1) as required by law. (This bill applies to HOAs that have no alternate quorum in their governing docs and won’t affect those HOAs that do have a reduced quorum provision in their governing docs.)

The bill’s hearing has been postponed one week… allowing Condo and HOA owners and board members to weigh in by asking the following senators to vote YES.

FAX YOUR COMMUNICATION TO COMMITTEE MEMBERS:

Ashburn, Roy 916 322 3304
DeSaulnier, Mark 916 445-2527
Harman, Tom 916 445 9263
Huff, Robert (Vice Chair) 916 324 0922
Kehoe, Christine 916 327 2188
Lowenthal, Alan (Chair) 916 327 9113
Oropeza, Jenny 916 323 6056
Pavley, Fran 916 324-4823
Simitian, Joe 916 323 4529"

Tell the Senators who hold the fate of this bill in their hands that your association has had serious problems getting a quorum for board elections, that meeting quorum requirements is difficult or impossible due to association member/voter apathy, and that the failure to achieve quorum threatens the ability to have a valid board election every year. And it is also fair to tell these legislators that without this bill, the law allows an outgoing board to simply APPOINT whomever it wants to fill vacancies when quorum cannot be achieved. This adversely affects the members’ right to elect their chosen candidates. And one more thing, when a board has to hold a new election because of lack of a quorum, and does not have the right to use the "adjourned meeting/new quorum" option, it is costly to the members.

Tell the legislator (lest they miss the message) that you are asking you to vote YES on AB 1726 (Swanson) in the Senate Transportation and Housing Committee on June 29.

Do it, RIGHT NOW! The communications must be received by June 28. The hearing is on June 29.

Let me know if you helped!

Posted by Beth Grimm at 11:36 AM

June 22, 2010

Screaming Babies - Can You Sue Them For Nuisance?

The following is a very difficult set of facts. Some situations are just not conducive to litigation or punishment until it can be established that the parties are not making any compromises or working to find a mutual solution.

Kid noise is the source of many disputes in condominiums and townhomes. It can be a problem in apartments too, but it is easier for a party that is a renter to leave an apartment and find another place to live. And keep in mind that "it takes two to tango" as they say.

Here are the facts as presented to me:

"We are renting a condominium from a friend and have a 1 1/2 year old toddler. On occasion, he has a tendency to scream quite loud, whether it is because he is upset or just wanting to let out steam. To our knowledge, his screaming has never occurred before 9 am. Our neighbors have complained to us about the "noise" coming from our unit since the day we moved in and have now taken the issue up with the HOA.

We got a visit from one of the HOA members yesterday who wants to find a solution before involving the landlord and deciding disciplinary action against them.

We do not understand our rights as renters and what we are supposed to do in this situation. We do not encourage our son to scream, but at his age we do not know what recourse we have. We are doing our best to re-direct his energy into different activities, but we also believe it is a normal phase toddlers go through at his age. We have been in our unit for less than 5 months and have been bothered with this issue on three different occasions.

Do you have any advice? And does the HOA have any legal recourse against us?"

First of all, let me say "kudos" to the board member for seeking some kind of resolution before meting out punishment on the landlord or anyone else.

Let's say that you are the decision maker in this situation having to mete out the punishment, if there is to be any. Who do you think should "win" if a legal battle ensues? Do you think anyone should be punished in this situation?

If you have kids or grandkids that are hyperactive, easily excitable, colicky or just plain heavy footed or noisy, you will sympathize with the tenants who have the child screamer.

If you are single or a couple without children or with perfect children, work at home, work nights and sleep days, are a senior citizen who has "paid his or her dues" and are looking for a peaceful place to live, or are disturbed by loud and unpleasant noises, you will most certainly side with the complaining neighbor.

If you are an HOA lawyer without compassion you might say that any loud noises of this magnitude are a disturbance and should be punishable by the full extent of the authority of the governing documents. Or you might be inclined just the opposite to say this is not the board's problem, that it is a neighbor to neighbor dispute and the board should not get involved.

As for legal rights, the board could impose discipline on the owner of the property including fines, suspension of some of the rights of owners (and tenants by delegation) and the like, according to what the governing documents allow, for each incident. And the board could likewise probably opt out of the dispute and refer the parties to a local mediation service. If taking action against the owner for the screaming baby noise, the board would want to be careful to avoid any action that could be perceived as discriminatory, meaning a violation of the constitutional protections for families with children.

So who is right? Everyone? ... No One? Here are some things I would recommend that the parties consider:

The Renters With the Screaming Child

Move: If you can move to a new place with better insulation or a home without party walls, life will be simpler. Of course, this may not be possible for financial or other reasons.

Check with a medical doctor, psychologist or behaviorist that works with toddlers to see if there is anything that can be done to help the child cope or help you (the parents) deal with the screaming in a manner that minimizes it.Perhaps there is some solution involving a distraction, supplement, food, medication, or something else that can be used to assist in the situation. It would make sense to keep a log of incidents, times, and circumstances surrounding the screaming incidents both for your own use, for informational purposes for any provider, and/or for a documented record in case there are allegations made of noise when it is not your child.

If You Are The Complainer

Remember, every time the child is screaming the parents have a front row seat and so it is at least as disturbing to the parent, and actually doubly so since they have to endure the baby noise, and the neighbors' wrath. Be glad you are not the parent having to cope with complaints about a condition that seems unresolvable related to children noise.

Get some noise cancelling headphones and be glad that the noise is not caused by a stereo with extra high def base on and surround sound speakers placed on a hardwood, laminate or tile floor.

Get surround sound and when the screaming starts turn on a movie about a car race, something like Thunder Road or a musical, or turn on the stereo and listen to some lively music (not so loud it disturbs the neighbors).

Indicate to the neighbor a willingness to talk about the situation and see if there is something you can do to work things out.

And for 3 times in 5 months, have a heart.

Posted by Beth Grimm at 9:46 PM

June 3, 2010

More on Noise and Renters-A Pesky Subject in HOAs and Condos

I probably get as many emails on noise issues than any other subject (except maybe for dogs). Anyway, there are all kinds of variations. This one has to do with renters, teenagers, and nose-thumbing, in a manner of speaking.

Here is the email:

"My husband and I own a condo and below us lives a family of five. For the past three years the owner [leaves for an extended vacation] and leaves his college age niece and nephew at home. They play music so loud during the day that it will shake the pictures on our walls and have had quite a few parties where we have had to call the police due to city noise violations and we are unable to sleep.

All of the above breaks the rules of our HOA, so they have been fined. When we go down to ask the niece and nephew to turn the music down, they refuse. The owner will not respond to our HOA and claims there is no one in the unit so the noise is not from them. The niece has been especially bad now that her family thinks the fines can't be collected. Our HOA says that litigation is our only option, but is it possible for the HOA to take them to small claims for the fines and hopefully change their behavior? It seems that HOA fines and rules are pointless if they can't be enforced."

Yes, it is possible for either the HOA or the offended owner, or both, to take the owner with the offending resident relatives to small claims court. The offended owner could also name the neice and nephew as defendants too, if one could get the names. The claim would be public and private (per the CC&Rs) nuisance. Assuming what this writer says is true, and there is no convincing counter story, a small claims court referee or judge might have a few choice words for the owner, neice and nephew. An individual can sue in small claims for up to $7500 in damages. An association can sue for the fines. The claim of nuisance is personal to the party disturbed. Nuisance damages are hard to quantify, but the more eggregious the claims, and the better the proof or more convincing the story ("he said, she said" can get dicey), the more likely the plaintiff (person bringing the claim) is to recover some monetary damages. Even if there is no damage award, or just a minimal one (sometimes a hearing officer will send a message but award only $1), dragging the offending parties into court may have some positive effects. They won't like it.

As for bringing the association into such a lawsuit, either by pushing it to sue as a plaintiff, or naming it as a defendant, either is a judgment call. An offended owner can do the latter. But no one can force the HOA to sue in small claims if the HOA is not willing to bring a claim against the owner for the fines. If the offended owner so desires, he or she could name the HOA as a defendant too - and the claim would not be for nuisance but for failure to enforce the CC&Rs. Bringing the association in would give it a chance to make a cross claim against the owner (assuming a true account of the facts) for the fines already imposed. But the association may not sue the actual "sh_t disturbers" as the HOA does not have a legal relationship with them. And the Board may not appreciate being brought into the fray. Depending on what kind of message an owner wants to send to the association, and how realistic or assertive the association has been in addressing the violations, it may or may not be to the advantage to involve the association as a defendant. Hopefully, it would agree to file a complaint. The two matters with the same defendants could be heard together. Bringing in the HOA as a defendant would be a judgment call. It is not necessary.

Posted by Beth Grimm at 10:21 PM