"Someone just pointed me to your wonderful condo site. Since you clearly know a lot about condos, I was wondering if you've heard of any condos that have bought or leased solar systems. I've been trying to get one in place at my condo and have run into various issues.

I'm particularly interested in whether it might be possible to do various energy-efficiency improvements, including solar, under a PACE program (assuming they start up again, which many people think they will). As I note in this blog post, our HOA board thinks this would be too complicated legally: http://rfrancescato.wordpress.com/2010/07/07/condoizing-solar-part-2/.

However, my fellow green committee member spent a lot of time talking with the San Francisco Mayor's office about this. They were eager to work with a condo, and he thinks that if they think it could be done, then it must be legal.

Have you encountered this kind of issue? I would love to hear your thoughts on this."

The issue in the blog and the San Francisco loan site and the news article to which the blog refers say that both FNMA and Freddie Mac (FHLMC) the two largest home loan servicers, are saying they will not purchase or service loans that are made under programs like the San Francisco PACE program which was providing funding for home loans for homes that featured "green" options.

So add this to other possible barriers to "going green" on the large scale. Other hurdles include:

Ownership/placement issues
Capacity issues
Up front costs
Raising money
Owner approval

It's too bad it's so hard! But keep the faith. What seems difficult today may be easier in the future as barriers are lifted and solutions are offered. It is likely that need, appreciation of the environment, added competition, legislation, incentives and discussions with the loan servicers might lead to solutions. So do not let the hurdles delay studying the options - associations that want to look at all options can take "baby steps" by choosing improved roofing products, irrigation systems and landscaping options, by choosing improved lighting options, and can prepare to be "poised to propose" large scale solar options when the timing and more substantial and workable programs line up in the universe.

Here is a question from a reader:

"I am wondering if you could point me to information on your site, or another site, about local smoking ordinances. My question is this: if my city passes a smoking ordianance that covers multi-housing units does this also apply to my co-housing community. One of our board members says no it does not because we are goverened by our CCRs."

My answer: The city ordinance probably does apply, but one would have to read it to see if there are any exclusions and how it applies. HOAs are not immune from city ordinances. The HOA rules or CC&Rs can be more restrictive than city ordinances, but the ordinances would still usually apply as a minimum standard if there are not more restrictive conditions in the governing documents.

Where some confusion reigns is when the ordinance enforcement contingent of some cities will decline to enforce the ordinances within the HOAs or Condo associations using the excuse that the developments are private and there is a board to enforce restrictions. It is not really fair since everyone pays the costs of local government - even Condo and HOA owners pay city and county taxes just like everyone else, but sometimes the associations get the short shrift on municipal services.

But Associations do have more options than other non-HOA residents. The Boards have rule making authority and through the board powers as defined in the governing documents can usually align rules with or even adopt the city ordinances as part of the association rules (after going through proper procedures). In fact, having the objective standard of comparable local ordinances is helpful - but then the question arises as to whether the city is justified in refusing enforcement because the board can enforce the same rules.

It can get confusing or convoluted but most ordinances written for multihousing would apply not only to apartments but also condos and townhouses whether a corresponding rule was adopted or not.

If you want to see some more thoughts and machinations on smoking rights, see my concurrent blog at the Condolawguru blogsite with a question from a reader who believes trying to limit smoking in units is unfair.

"I find myself in a delicate situation, having served on our Assocaition's board for more than twenty some years during my tenure as Association President. Last year, term ending in June 2010, I requested several documents and records from the Management Company who serves as our Custodian of Records ... None of the records and or documents requested are considered 'privileged' so there remains no reason why the management agent and company withheld such from me. I am seriously considering filing a Small claims action to order production of documents and ask for penalties for their refusal. My question to you is this, can I sue the management company for their failure to produce the requested documents without having to drag the Association into the civil matter? I don't want to create issues with fellow former directors but feel that I have no choice other than to pursue legal avenues to get the information that I had a right to, information and documents that were intentially withheld from me and in direct violation of the California Civil Code."

The association records belong to the association, and if records are being withheld from a board member, that is a problem. But the ultimate decision on any request is the responsibility of the Board. The manager would be acting on behalf of the Association in most situations (a look at the contract would disclose this). Thus I believe that the Association would be the proper party to be sued in any action to seek redress for failure to provide the records.

As to rights, Board members have the right to see all corporate (association) records under Corporations Code Section 8334 which says:

"8334. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the
corporation of which such person is a director."

There is a cavaet. In a case, King v. Oakmore Homes, a director sued to see proxies from an election, and the court said no. There was some discussion in the case that Mr. King might want to see the proxies to see if people who promised to vote for him did, but the court said since he was elected, he did not need to see the proxies. So there are times when a board might be entitled to withhold records, if there is reason to believe there might be an improper purpose in seeing the records. In some cases where a board believes that a director may disclose confidential records inappropriately, it may be okay to withhold records, but it would be important to get legal advice in a situation like that.

The series of Corporation Codes allowing for inspection of records AND Civil Code Section 1365.2 which allows for inspection of many association records by an owner both have provisions for recovery of attorney fees for an unlawful refusal to provide or allow inspection of the records covered. Civil Code Section 1365.2 also allows for a $500 fine for each violation.

So it is important for boards and managers to understand what must be provided. There are specific timelines discussed in the laws.

"Our board wants to amend our CC&Rs to read that the 2 owners who live on the top floor and have an exclusive use common area walking deck, shall pay for 100% of their area involved (about 60%). This area, which includes common area walkways and overhang, is currently costing over 92K for a renovation of the roof deck. We are not a high rise or a very upscale complex. Do you think this is fair?"

It is hard to say what is fair. There are several considerations.

The building needs a roof and I think its a given that owners should share in the cost of the roof. Not all owners use the pool in an HOA but still in most cases they have to share in the costs. It is a common amenity that is considered in determining property values, as would a roof be.

That said, if the other units in the building have decks and the owners pay to repair, maintain or replace those decks, and the owners of the top unit are avoiding paying their fair share for the decks adjacent to their units, just because they are called roof decks. That does not seem fair.

If the top floor owners have to pay considerably more to maintain, repair and replace their decks than others would have to pay for the same size deck, just because their decks contain a roofing component, that may not be fair to them.

Square footage of the deck area might have bearing. If owners maintain their decks, or pay equally into reserves to maintain, repair and replace the decks, and the decks vary considerably in square footage, style or design, and the costs to maintain, repair or replace vary greatly, should the board consider this and offer members a CC&R amendment to re-allocate the costs?

If the building has an elevator, should the costs be allocated per floor, or $0 for first floor and equal as to all higher floors since the upper floor owners use the elevator in varying degrees? Or is the elevator a required amenity of the building, the same as a roof or walls?

These matters may be fair, and they may seem unfair to some, and they may be totally disjointed. If a board is considering making a change to re-allocate costs, fairness is certainly one consideration, but there are also many others:

Does the improvement benefit the entire association, if not physically, then at least as to contributing to the value of the properties in general?

Is it an amenity to which all members have equal access, if they want it?
Is it a major or minor component?
Is the maintenance/repair cost substantial?
Is there a material difference in square footage?
Is there a rational way to determine the cost per square foot?

And last, but certainly not least...

What are the approval requirements for amending the governing documents? Many contain a requirement to seek lender as well as owner approval if the maintenance or other obligations change in a material way. And many seek higher owner approval than the general amendment provision if the maintenance or cost obligations change.

So get good legal advice if you are contemplating changes in the governing documents to promote fairness, and refrain from relying solely on the argument "We don't use it so we should not have to pay for it." This last argument has failed many times when people have complained about paying for amenities they do not intend to use.

When considering what is fair, take into account also that there may be tradeoffs. Maybe some units have decks and others have patios and the two are not consistent with regard to maintenance costs. However, if fences are involved with the patios, then that may equalize the otherwise extra expense of deck floors or railings or joists.

One more important tenet. Owners in HOAs and Condos purchase with knowledge that the documents are subject to change by amendment, and arguing against a duly [member] approved amendment can be difficult.

"Our HOA just recently consolidated [I think that means conversion of apartment to cooperative or condominium but not sure] and an attempt to equalize the unit construction will begin on our unit next month. They told us they will come into our home to tear up the floors to fix the joist below. We just had twins! As you can imagine, the timing could not be worse. What are owners rights or guidelines toward financial reparation for inconvenience, hardship, relocation, moving expenses, bringing the inside of unit back to the original condition (fixing our hard wood floors, re-painting the walls), etc.

Any guidance would be appreciated."

Congats on the babies and I agree, not good timing. There is nothing in Davis Stirling about it this situation and usually there is no obligation on the part of the HOA to pay for relocation expenses. You might check with your own HO-6 policy, assuming you carry individual insurance. There maybe some relocation cost allocation. If there is, there may be conditions on when it can be used, but check.

And as for bringing the inside of the unit back to the original condition (like fixing hard wood floors, re-painting the walls, etc.) it really depends. If equalizing the units includes interior repairs, then they should be covered. If not, it may be a battle between the HOA and the homeowner. I would say first: read the governing documents and see what they say. Usually the CC&Rs say that owners are responsible for the interiors such as paint and flooring. However, there may be something in the documents that suggest who is responsible if repairs are made and in the course of that, damage is caused to the interiors.

More commonly though, the CC&Rs would be silent on what happens when repairs to a unit are made. Replacement of hardwood floors or expensive painting or wallpaper can be the source of much fighting and I have seen in some cases, where settlement is not reached, both parties spend more than the cost of the floors or wallpaper fighting over who ultimately pays.

Hopefully, whoever set up the conversion, if that is what occurring, considered these expenses and addressed them in the conversion docs. If not, then the parties are on their own and that means arguments will abound. I might suggest that the absence of any other language than that saying the owners are responsible for the interiors and the HOA or Condo Association is responsible for the common area, that is probably the ultimate defining and controlling language.

If the damage is due to a different event, like a flood or fire, there may be HOA insurance coverage involved.

These questions can be complicated and a consultation with an attorney might help. But again, consider the cost of the repair vs. the cost of the attorney services.

The story was about an incident that occurred in Iowa, and involved a man who got fed up with his neighbors, bought a bull horn, hooked it up to a compression machine of some kind (I am imagining that made it really loud), and blasted the neighbors every two seconds until he was arrested by the police for disturbing the peace. The neighbors "hippie" music had obviously driven him crazy.

That story reminds me that people are pushed into doing things they normally would not do (if they are not crazy already) trying to deal with problems involving other people. It reminded me of a story though of the nutty things people come up with to deal with disturbances, and California certainly has its share of people that are "out there".

A few years back this one came through the door: a board president out here in California wanted to rid "his" neighborhood of pests (the two legged kind), so he talked the board into setting a curfew, and then he bought a bull horn and some amplifiers, outfitted his vehicle, and got the VP to drive his pickup truck around the development while he rode in the back yelling through the amplified bull horn: "It's curfew, go home!" from curfew time on for a couple of hours each night. The other board members weren't so agast at the nightly drive throughs as much as the fact that the President presented a $3,000 bill to the association for the equipment needed to outfit his pickup truck for the nightly tirade, which included a bull horn, amplifiers, and a roll bar (so he had something to hang on to).

What do you think the board did? Approve the equipment? Or bring the President's feet "firmly back down to earth?"

""What can I do about a board that does not enforce the rules? They won’t do anything about people disobeying the rules because they are afraid of retaliation. As a 20 year homeowner, what can I do and where do I start?"

There are many ways to attack this problem. But first, understand that board members are volunteers, they have their hands full these days just trying to keep their HOA or Condo Association "afloat", and they can use help.

So, first, get educated about rules. There are 5 "Enforcement" Primers available on my website for $25 each that will tell you everything you ever wanted to know about rules and enforcing them. And forms to boot! These Primers are intended to assist boards in setting rules and policies that are reasonable, and they being able to enforce them!

Second, run for the board! If you want to help, get your hands in the pot. If you want to know what the board responsibilities are there are two Primers on the website relating to Board Basics (responsibilities) - I (basic) and II (intermediate). There is also an Operations Primer and an Ops forms Primer to assist with operations.

Chronic complainers (about rules enforcement) can become part of the problem. Become part of the solution! Get involved in the leadership in your association. If you are not willing to do that, then at least keep your corner "clean".

The best result of course is that the bank/seller do things properly and an escrow demand comes to an association asking how much is owed, and the delinquent amount is considered as part of what must be settled in the sale. Whether the bank, the seller or the buyer pay the delinquencies is of no particular consequence, if someone agrees and they are paid to assist the sale. I have heard of buyers ante'ing up more $$ when the bank appraisal came in too high to do the deal. The buyer might be willing to throw in some money toward the debt to get the good deal.

When they are not paid, or when the HOA is being asked to negotiate down what is due, it is important to consider what is happening and whether it makes sense. Here are some considerations:

1. The debt is that of the SELLER and if the debt is not paid, the association still can go after the seller for the accrued debt. But is it worth it? If the seller is a family that lost its home because the owner lost his or her job or suffered grave financial circumstances, probably not. If the seller is an investor who appears to be dumping property to cut losses, maybe so.

2. If the assessment debt is not paid and the property transfers, it would be my contention that the HOA could still consider putting a lien on the property or moving forward on an existing lien to foreclosure (assuming the governing documents provide for it) as the assessment debt still remains on the property and it has not been "extinguished" by law. If a senior mortgage holder forecloses for its debt and the HOA has a lien, that lien would normally be extinguised as a matter of law. This is not the case in a voluntary sale to your brother, uncle, or kid, or in a short sale. You cannot pursue a buyer specifically, but the property may be up for grabs. Thus, all parties (lender, seller and buyer) should take heed in settling on a short sale without inquiring about HOA debt. It is risky business. All might end up in litigation against each other.

3. If the HOA is being asked to negotiate down the debt, keep in mind that "a bird in the hand is worth 2 in the bush." In case that is not clear, 50 cents on the dollar in hand might be the best deal in town. Getting the unit transferred to a new owner without waiting for the bank to foreclose (many are stalling foreclosures) might be worth nothing on the dollar. Entering into an agreement with the buyer to make payments might be the way to go - assuming they are solvent or moving in that direction.

In other words, HOAs and Condo Boards - being ignorant of the rights remaining or being belligerent in your demands might hurt you. Consult with legal counsel to be sure you are knowledgeable about your rights (don't consider a blog to be legal advice - attorneys do tend to argue about things).

As many have said, is doubly important in this economy to have a strict assessment collection policy that allows for recording a lien at the earliest possibility because let's face it, HOAs and Condo contacts are hard for the lenders and title officers to find. If sellers don't ante up the information about their debt to the association, a lien will. And, a lien offers a point of contact, and additional protections in the event of bankruptcy. Yes, the costs to the owner who is already strugging go up considerably when a lien is recorded, but if that owner has not stepped up and entered into a payment plan that is being honored, there are oh-so-many-protections that the Association needs.

However, the HOAs are often in a very difficult position, today more than ever before in my history as an HOA attorney (more than 25 years). The economy and rising number of people who simply cannot pay, or simply "walk away", is hurting the HOAs. The inclination of many banks today to stall foreclosures lest they become owners of HOA properties and be held responsible for the upkeep of the property and assessments is very troubling. It is understandable, given that they are in "business" and have their own set of problems and criteria, but it is hurting HOAs!

I have received the calls from Boards that are desperately trying to find some means of collecting assessment money, or collecting the debt from unpaid assessments, about homeowners and investors who have either committed suicide, skipped town or simply crawled within themselves because of their financial plights. So pushing those parties for reimbursement can be like pushing a dead horse.

If an HOA is considering going through with a foreclosure sale and (assuming the property is upside down or unmarketable for any reason) "skimming rent", I suggest first exhausting all possible options (considering all circumstances) with the owner. I suggest contacting the lender to see what the plan is with regard to foreclosure (although many lenders will not communicate with the association until it owns the property).

If these things lead to a dead end, then the HOA may be left with the difficult (but probably reasonable under this scenario) position of taking the property back at its own scheduled sale and collecting rent from the current occupant, or legally evicting them and getting a rent-paying tenant in there.

Once the HOA becomes the owner of the property, then I would suggest communicating with the bank and encouraging it to move forward with foreclosure if the debt is in arrears (which it most certainly would be), or to consider looking at a short sale. If the HOA has exhausted all avenues considering pursuing the owner, and notified the bank encouraging them to move on the property, it seems really that any party that might pursue the HOA under the rent skimming law would have a lot of explaining to do, and difficulty characterizing themselves as any kind of "victim" of the HOA's action.

These measures are suggested as a way to potentially minimize the possible ramifications under the statute that was designed to punish people who take advantage of the downtrodden and then skim the rents instead of taking proper ownership responsibilities with regard to the property. There are no guarantees of course.

The law was not designed to punish HOAs that have fallen victim of owners who no longer take responsibility and banks that are unreasonably delaying foreclosures to protect themselves and hopefully, if any HOA is pursued under this law, the judge would take into consideration the lack of willful or malicious intent. I know of no cases where the HOA has been pursued and know that attorneys have presented this as an option to consider when all else fails.

Maintenance? Probably. This is generally described in the CC&Rs assessment section.

Insurance Premiums? Probably yes, for the common area. The documents will describe whether the HOA or Condo Association can charge for insurance for the homes in the development.

Move In-Move Out Fees? It depends on what the governing documents say (should appear in the CC&Rs if it appears at all.)

Security Deposit for Tenants? Same answer.

Damage to the common area? There may be a reimbursement assessment allowed in the CC&Rs and that would usually describe it if the association can charge, and also if the association can lien for the charges if not paid. Associations commonly can lien or foreclose for nonpayment of assessments. This one is one for which someone should seek legal advice as it is complicated.

Failure to maintain a townhome (by an owner)? Probably, and again, the documents would dictate whether the board could collect any charges or reimbursement costs if the association did the work like an assessment or would instead have to treat it as a personal debt.

Pool fee? Depends, the bylaws or CC&Rs may allow for a fee. Commonly everyone in a condo association or HOA shares the cost of maintaining the pool equally, even if some people to not use the pool. However, issuing pool keys or passes may involve a fee or charge or even security deposit paid back upon return of the key, or a key replacement charge.

Fine? There are a myriad of requirements to charge a fine such as the requirement of circulating and adopting a fine schedule and a hearing. Most HOAs have some kind of warning letter first, before the hearing.

Fee for a having a pet? Probably not, but there might be a provision in the documents that allows for it. It is better to treat costs related to having a pet as a reimbursement cost for any damage rather than a set fee for having a pet. This would probably not pass muster with the courts, unless there was justification through some fee or cost to the association in allowing pets.

Fee for having teenagers or small children? (No, would be discriminatory.)

Extra fees for extra vehicles? Depends on the governing documents.

Did I cover everything?

Probably not, but its a start. The bottom line is that the governing documents provide authorization for what the board can and cannot do and what obligations it has, and if a fee is not described in any of them as being authorized, there is probably a problem if the board charges.

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!

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.

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.

"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.

"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).