All posts by Steve Tinnelly

Davis-stirling Act

Civil Code Section 4736. Limitations on Pressure Washing.

(a) A provision of the governing documents shall be void and unenforceable if it requires pressure washing the exterior of a separate interest and any exclusive use common area appurtenant to the separate interest during a state or local government declared drought emergency.

(b) For purposes of this section, “pressure washing” means the use of a high-pressure sprayer or hose and potable water to remove loose paint, mold, grime, dust, mud, and dirt from surfaces and objects, including buildings, vehicles, and concrete surfaces.

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AB 2104. Water-Efficient Landscapes.

Increased protections for homeowners installing low-water using plants and water-efficient landscapes. Limits HOA regulatory authority.

Current Status: Chaptered

FindHOALaw Quick Summary:

Current law provides that an association may not prohibit low-water using plants as a group. AB 2104 (Gonzalez) would amend Civil Code Section 4735 to also render void and unenforceable any provisions of an association’s governing documents that prohibit, or have the effect of prohibiting, the use of low-water using plants as a group or as a replacement for existing turf.

*UPDATE: AB 2104 was approved on September 18, 2014 and its changes to the law become effective on January 1, 2015.

View more info on AB 2104
from the California Legislature's website

AB 2100. Yard Maintenance: Fines; Drought.

Increased protections for homeowners utilizing water-conservation measures during declared drought periods. Limits HOA regulatory authority.

Current Status: Chaptered

FindHOALaw Quick Summary:

In April 2014, the Governor signed an Executive Order prohibiting associations from fining, or threatening to fine, owners “who comply with water conservation measures.” AB 2100 (Campos) would codify the Order by amending Civil Code § 4735 to prohibit an association from imposing a fine or assessment against a member for reducing or eliminating watering of vegetation or lawns during any period for which the Governor or a local government has declared a state of emergency due to drought.

*UPDATE: AB 2100 was approved on July 21, 2014 and its changes to the law become effective on July 21, 2014.

View more info on AB 2100
from the California Legislature's website

AB 1738. Dispute Resolution.

Allows for either party to IDR to be assisted by an attorney at their own cost; Any resolution reached at IDR must be in writing and signed by both parties.

Current Status: Chaptered

FindHOALaw Quick Summary:

Civil Code Sections 5910 and 5915 require an association to provide a fair, reasonable and expeditious dispute resolution procedure for resolving a dispute between an association and a members. This is commonly referred to as “Internal Dispute Resolution” (or “IDR”). AB 1738 (Chau) would allow for either party to the IDR to be assisted by an attorney or another person in explaining their positions, at their own cost. It would further require that any agreement obtained in IDR be in writing and signed by both parties.

*UPDATE: AB 1738 was signed into law on September 18, 2014. Its changes to the law become effective on January 1, 2015.

View more info on AB 1738
from the California Legislature's website

AB 968. Common Area: Maintenance & Repair.

Clarifies repair and replacement responsibilities under Civil Code Section 4775 with regard to exclusive use common area.

Current Status: Chaptered

FindHOALaw Quick Summary:

Unless otherwise provided for in an association’s CC&Rs, Civil Code Section 4775 establishes the default apportionment of common area maintenance and repair responsibilities of an association versus those of the individual owners. Section 4775 is somewhat ambiguous with regard to exclusive use common area; Section 4775 fails to state whether an owner is responsible for the “repair and replacement” of exclusive use common area, not simply “maintenance.” Industry practice has held that the responsibility to repair or replace exclusive use common area is the association’s. AB 968 (Gordon) seeks to codify industry practice by amending Section 4775 to state that, unless otherwise provided for in the CC&Rs, the owner is required to maintain exclusive use common area, and the association is responsible to repair and replace exclusive use common area.

*UPDATE: AB 968 was signed into law on September 18, 2014. Its changes to the law will become effective on January 1, 2017.

View more info on AB 968
from the California Legislature's website

AB 569. Real Property: Divided Lands.

Adds an exemption to the requirement for directors to be elected pursuant to formal election procedures for associations that make every member a director.

Current Status: Chaptered

FindHOALaw Quick Summary:

Chapter 6, Article 4 of the Davis-Stirling Act (commencing with Civil Code Section 5100) establishes the procedures for the election of an association’s directors. The bylaws of some stock cooperatives provide that one member from each separate interest is automatically a director. AB 569 (Chau) would add subpart (f) to Civil Code Section 5100 in order to exempt these communities from having to utilize the balloting/election procedures for director elections.

*UPDATE: AB 569 was approved on September 27, 2014 and its changes in the law become effective on January 1, 2015.

View more info on AB 569
from the California Legislature's website

Small Claims Collection Actions

An association that has recorded an assessment lien against an owner’s property is permitted to enforce the lien through suing the owner personally and obtaining a money judgment (aka a “personal money judgment” or “PMJ”). (Civ. Code §§ 5700(a), 5720(b); See also “Money Judgments (Assessment Collection).”) Once the association obtains the money judgment, the assessment lien is extinguished and the underlying debt of the owner merges into the judgment obtained by the association. (Diamond Heights Village Assn., Inc. v. Financial Freedom (2011) 196 Cal.App.4th 290, 301.)

The money judgment may be sought in Small Claims Court, subject to the limitations discussed below.

$5,000 Claim Limitation
Although an owner (a “natural person”) may sue an association in small claims for an amount up to $10,000, an association may not sue an owner in small claims for an amount exceeding $5,000. (Code Civ. Pro. §§ 116.220, 116.221.) The limitations on foreclosure of an assessment lien set forth in Civil Code Section 5720(b) (i.e., foreclosure may not be instituted until the amount of assessment debt totals at least $1,800) do not apply to small claims actions:

“An association that seeks to collect delinquent regular or special assessments of an amount less than [$1,800]…may not collect that debt through judicial or nonjudicial foreclosure, but may attempt to collect or secure that debt…[b]y a civil action in small claims court…The amount that may be recovered in small claims court to collect upon a debt for delinquent assessments may not exceed the jurisdictional limits of the small claims court…” (Civ. Code § 5720(b).)

$2,500 Claims Twice Per Year
An association may not file more than two (2) small claims actions per calendar year in which the amount demanded exceeds $2,500. (Code Civ. Pro. § 116.231(a).)

Appeal of Judgment
If a judgment is obtained by the association against the delinquent owner, the delinquent owner may appeal the judgment; however, the association (as the plaintiff) may not appeal an adverse judgment. (Code Civ. Pro. § 116.710.)

Attorney’s Fees on Appeal
The appeal on a small claims judgment is heard in Superior Court, where both parties may be represented by an attorney. However, even if the association prevails on appeal, it cannot recover all of its attorney’s fees, as the available fees which may be recovered are capped at $150. (Code Civ. Pro. § 116.780(c).)

Money Judgment
Once the association prevails and obtains a money judgment, it may enforce the money judgment through recording an abstract of judgment (a “judgment lien”) and through levying the delinquent owner’s wages or bank account. (See “Money Judgments (Assessment Collection).”)

Code of Civil Procedure Section 116.780. Attorney’s Fees: Small Claims Appeal.

(a) The judgment of the superior court after a hearing on appeal is final and not appealable.

(b) Article 6 (commencing with Section 116.610) on judgments of the small claims court applies to judgments of the superior court after a hearing on appeal, except as provided in subdivisions (c) and (d).

(c) For good cause and where necessary to achieve substantial justice between the parties, the superior court may award a party to an appeal reimbursement of (1) attorney’s fees actually and reasonably incurred in connection with the appeal, not exceeding one hundred fifty dollars ($150), and (2) actual loss of earnings and expenses of transportation and lodging actually and reasonably incurred in connection with the appeal, not exceeding one hundred fifty dollars ($150).

Code of Civil Procedure Section 116.710. Small Claims Appeal.

(a) The plaintiff in a small claims action shall have no right to appeal the judgment on the plaintiff’s claim, but a plaintiff who did not appear at the hearing may file a motion to vacate the judgment in accordance with Section 116.720.

(b) The defendant with respect to the plaintiff’s claim, and a plaintiff with respect to a claim of the defendant, may appeal the judgment to the superior court in the county in which the action was heard.

(c) With respect to the plaintiff’s claim, the insurer of the defendant may appeal the judgment to the superior court in the county in which the matter was heard if the judgment exceeds two thousand five hundred dollars ($2,500) and the insurer stipulates that its policy with the defendant covers the matter to which the judgment applies.

(d) A defendant who did not appear at the hearing has no right to appeal the judgment, but may file a motion to vacate the judgment in accordance with Section 116.730 or 116.740 and also may appeal the denial of that motion.

Code of Civil Procedure Section 116.231. Small Claims Court Limitations.

(a) Except as provided in subdivision (d), no person may file more than two small claims actions in which the amount demanded exceeds two thousand five hundred dollars ($2,500), anywhere in the state in any calendar year.

(b) Except as provided in subdivision (d), if the amount demanded in any small claims action exceeds two thousand five hundred dollars ($2,500), the party making the demand shall file a declaration under penalty of perjury attesting to the fact that not more than two small claims actions in which the amount of the demand exceeded two thousand five hundred dollars ($2,500) have been filed by that party in this state within the calendar year.

(c) The Legislature finds and declares that the pilot project conducted under the authority of Chapter 1196 of the Statutes of 1991 demonstrated the efficacy of the removal of the limitation on the number of actions public entities may file in the small claims courts on claims exceeding two thousand five hundred dollars ($2,500).

(d) The limitation on the number of filings exceeding two thousand five hundred dollars ($2,500) does not apply to filings where the claim does not exceed five thousand dollars ($5,000) that are filed by a city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity. If any small claims action is filed by a city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity pursuant to this section, and the defendant informs the court either in advance of the hearing by written notice or at the time of the hearing, that he or she is represented in the action by legal counsel, the action shall be transferred out of the small claims division. A city, county, city and county, school district, county office of education, community college district, local district, or any other local public entity may not file a claim within the small claims division if the amount of the demand exceeds five thousand dollars ($5,000).

FindHOALaw

All posts by Steve Tinnelly

Civil Code Section 4736. Limitations on Pressure Washing.

AB 2104. Water-Efficient Landscapes.

Current Status: Chaptered

FindHOALaw Quick Summary:

Related Links

AB 2100. Yard Maintenance: Fines; Drought.

Current Status: Chaptered

FindHOALaw Quick Summary:

Related Links

AB 1738. Dispute Resolution.

Current Status: Chaptered

FindHOALaw Quick Summary:

Related Links

AB 968. Common Area: Maintenance & Repair.

Current Status: Chaptered

FindHOALaw Quick Summary:

Related Links

AB 569. Real Property: Divided Lands.

Current Status: Chaptered

FindHOALaw Quick Summary:

Small Claims Collection Actions

Code of Civil Procedure Section 116.780. Attorney’s Fees: Small Claims Appeal.

Code of Civil Procedure Section 116.710. Small Claims Appeal.

Code of Civil Procedure Section 116.231. Small Claims Court Limitations.