Category Archives: Topic Index

Utility Service Interruptions

Association Responsibility to Repair
Civil Code section 4775 generally makes an association responsible for any repairs or replacements necessary to restore interrupted gas, heat, water or electrical services that begin in the common area regardless of whether the matter extends into an owner’s property (i.e., into an owner’s lot or unit) or any exclusive use common area appurtenant to the owner’s property. (Civ. Code § 4775(a)(2)(A).)

Exceptions
The association is not responsible for repairs or replacements in either of the following situations:

14 Day Timeline for Commencing Repairs
The association’s board of directors is required to “commence the process to make the repairs” within fourteen (14) days of the interruption of the utility service. (Civ. Code § 4775(b)(1).)

Inability to Meet Quorum for a Board Meeting within 14 Days
If the board is unable to meet quorum to hold a board meeting necessary to comply with the 14 day commencement of repair timeline, then at the next board meeting following the 14th day, the requirements of quorum are reduced so that the total number of directors at that meeting constitute quorum.  This reduction in quorum applies only for the vote to commence the repair process, and the notice of the board meeting must contain a provision indicating the use of a reduced quorum. (Civ. Code § 4775(b)(3).)

Board Vote Through Electronic Means
If the directors are required to vote to initiate repairs, such voting may be performed by electronic means, including but not limited to, email. All records of the vote are deemed “association records” and subject to inspection procedures under Civil Code section 5210. (Civ. Code § 4775(b)(4).)

Funding Repairs Through a Loan
If an association does not have sufficient funds to make the repairs necessary to restore the interrupted utility service, the association may obtain a loan to pay for the costs of the repairs or replacements. (Civ. Code § 4775(b)(2).)

Approval & Assessment Authority
No membership approval is required for the association to take out a loan to fund the repairs/replacements. The association may also levy an emergency assessment as needed to allow for the repayment of the loan. (Civ. Code § 4775(b)(2).)

Resolution Requirement
Prior to taking out the loan, the board must pass a resolution containing written findings regarding the nature of the association’s expenses and how the association’s reserves do not cover the necessary costs.  The resolution must be distributed to the members together with the notice of any emergency assessment, and together with notices that are otherwise required by law or the governing documents pertaining to the board’s action (if any). (Civ. Code § 4775(b)(2).)

Related Links

Understanding SB 900: HOA Repair of Utility Service Interruptions
– Published on HOA Lawyer Blog (May 2025)

Irrigation of Nonfunctional Turf with Reclaimed Water

The California Legislature has declared that “the use of potable water to irrigate nonfunctional turf is wasteful and incompatible with state policy relating to climate change, water, conservation, and reduced reliance on the Sacramento-San Juaquin Delta Ecosystem.” (AB 1572, Friedman: Potable water: nonfunctional turf (2023).)

This public policy declaration prompted amendments to the California Water Code designed to restrict the use of potable water for irrigation by various entities, including homeowners’ associations (HOAs).

“The use of potable water for the irrigation of nonfunctional turf located…on all common areas of properties of homeowners’ associations, common interest developments and community service organizations or similar entities” is prohibited as of January 1, 2029. (Wat. Code § 10608.14(a)(4); Emphasis added.)

“Nonfunctional Turf” Defined
Nonfunctional turf in an HOA means any of the following (Wat. Code § 10608.12(u),(m).):

  • Turf that is located within street right of way or parking lot;
  • Turf that is not located within a “recreation use area”;
  • Turf that is not located within a “community space”; or
  • Turf that is enclosed by fencing or other barriers to permanently preclude human access for recreation or assembly.

“Recreation use area” means an area designated by the HOA to “accommodate foot traffic for recreation, including but not limited to, sports fields, golf courses, playgrounds, picnic grounds, or pet exercise areas. This recreation may be either formal or informal.” (Wat. Code § 10608.12(aa).)

“Community space” means an area designated by the HOA to “accommodate foot traffic for civic, ceremonial, or other community events or social gatherings.” (Wat. Code § 10608.12(j).)

Exceptions Permitting Potable Water
Using potable water to irrigate nonfunctional turf is not prohibited in any of the following situations:

Exception: Tree/Plant Health – The use of potable water to irrigate nonfunctional turf is not prohibited “to the extent necessary to ensure the health of trees and other perennial nonturf plantings.” (Wat. Code § 10608.14(b).)

Exception: Imminent Health & Safety – The use of potable water to irrigate nonfunctional turf is not prohibited “to the extent necessary to address an immediate health and safety need.” (Wat. Code § 10608.14(b).)

Certification of Compliance by HOAs
An HOA, common interest development or community service organization that has more than 5,000 square feet of irrigated common area must certify to the California State Water Resources Control Board, commencing June 30, 2031, and every three (3) years thereafter through the year 2040, that their property is in compliance with the foregoing requirements. (Wat. Code § 10608.14(e)(2).)

Liability for Noncompliance
An HOA that does violates these requirements is subject to liability as set forth in Water Code Section 1846 (which includes daily fines, among other forms of liability), as well as civil liability and penalties imposed by an urban retain water supplier pursuant to a local ordinance. (Wat. Code § 10608.14(f).)

Related Links

Sale of Accessory Dwelling Units (ADUs)

Sale of ADUs as Condominiums
Government Code Section 65852.2 allows for a local agency to adopt an ordinance allowing for the separate sale of accessory dwelling units (ADUs) and the primary dwelling on the property as condominiums. Such an ordinance must contain the following requirements (among others):

  1. Created pursuant to the Davis Stirling Act. The condominiums must be created pursuant to the Davis-Stirling Common Interest Development Act, the body of Civil Code sections governing the creation and operation of homeowners associations. This requires the separate interests to have an interest in common area, a recorded declaration (CC&Rs), a recorded condominium plan, and a recorded final map or parcel map (if required under the Subdivision Map Act). (Gov. Code § 65852.2(a)(10)(A); Civ. Code § 4200.)
  2. Created in Conformance with Subdivision Map Act & Local Ordinances. The condominiums must be created in conformance with all applicable objective requirements of the Subdivision Map Act and all objective requirements of a local subdivision ordinance. (Gov. Code § 65852.2(a)(10)(B).)
  3. Safety Inspection & Certification. Before recordation of the condominium plan, a safety inspection of the ADU must be conducted and evidenced either through a certificate of occupancy or a certified housing quality standards report. (Gov. Code § 65852.2(a)(10)(C).)
  4. Lienholder Consent. Neither a subdivision map nor a condominium plan may be recorded (or subsequently modified) without the consent of each lienholder of the property. Written evidence of each lienholder must be included on the condominium plan or attached to the condominium plan and recorded together with the condominium plan. (Gov. Code § 65852.2(a)(10)(D).)
  5. Authorization of Existing HOA. If the property is within an existing planned development that has an existing homeowners association, the owner may not record a condominium plan without written approval by the association’s board of directors in a board meeting, and (if required by the association’s governing documents), approval by the association’s membership. (Gov. Code § 65852.2(a)(10)(G).)

Sale of ADUs as Low Income Housing 
Qualified nonprofit corporations have the right to sell ADUs separately from the private residence on a property, subject to several requirements which include, among others, that the buyer of the ADU be a person or family of low or moderate income. (Gov. Code § 65852.26.)

Virtual Meetings (Meetings Entirely by Teleconference)

Subject to certain requirements and limitations, the Open Meeting Act allows for HOA board meetings to be conducted via teleconference, where “teleconference” means that:

“…a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b).)

A teleconference would thus encompass a web conference or similar technology that allows for directors to interact in real-time.

No Physical Location Required for Virtual Meetings
Where an open board meeting is to be held via teleconference, Civil Code Section 4090 generally requires the association to identify at least one physical location where members may attend and observe (listen to) the teleconference meeting, as well as address the board on during open forum.  (See “Teleconference Meetings.”)

Civil Code Section 4926 was added to the Davis-Stirling Act to dispense with this physical location requirement in order to facilitate conducting meetings entirely by teleconference (“virtual meetings”), subject to the additional requirements specified in Section 4926 (described below).

Virtual Meeting Requirements

Notice Requirements – The notice for a virtual meeting must include, in addition to other required content for meeting notices, all the following: (Civ. Code § 4926(a)(1).)

    • Clear technical instructions on how to participate by teleconference;
    • The telephone number and e-mail address of a person who can provide technical assistance with the teleconference process, both before and during the meeting; and
    • A reminder that a member may request individual delivery of meeting notices, with instructions how to do so.

Equal Participation Requirement – Every director and member must have the same ability to participate in the meeting that would exist if the meeting were held in person. (Civ. Code § 4926(a)(2).)

Roll Call Vote Requirement – Any vote of the directors at the meeting must be conducted by a roll call vote. (Civ. Code § 4926(a)(3).)

Option to Participate by Telephone Requirement – Any person who is entitled to participate in the meeting must be given the option of participating by telephone. (Civ. Code § 4926(a)(4).)

Not Permitted for Ballot Counting Meetings
A meeting at which ballots are counted and tabulated pursuant to Civil Code Section 5120 may not be conducted virtually (Civ. Code § 4926(b).) If an HOA wants to conduct this meeting by teleconference, it must specify a physical location as discussed above. (Civ. Code § 4090(b).)

Related Links

AB 648 Signed! Virtual HOA Meetings
-Published on HOA Lawyer Blog (October 2023)

Annual Notice & Solicitation of Member Contact Information

Civil Code section 4041 requires every member (every homeowner within the HOA) to provide the HOA each year with information specifying the member’s preferred delivery method for receiving notices from the HOA, the member’s alternate/secondary delivery method for receiving such notices, as well as information relating to the occupancy and development status of the member’s property.  Section 4041 requires the HOA to solicit these notices from its members on an annual basis, and during specified timeframes. These requirements are discussed further, below.

Required Annual Notice of Contact Information by Members
On an annual basis, each member must provide the association with written notice of all the following:

  • The member’s preferred delivery method for receiving notices from the association. This must include the option of the member receiving notices at a valid mailing address, or at a valid email address, or both. (Civ. Code § 4041(a)(1).)
  • An alternate or secondary delivery method for receiving notices from the association. This must include the option of the member receiving notices at a valid mailing address, or at a valid email address, or both. (Civ. Code § 4041(a)(2).)
  • The name, mailing address and available email address of the member’s legal representative, if the member has one. This would include any person with a power of attorney for the member or who can be contacted in the event of the member’s extended absence. (Civ. Code § 4041(a)(3).)
  • The occupancy and development status of the member’s property. This must specify whether the member’s property is occupied by the member (whether it is “owner-occupied”), whether the member’s property is being rented out, whether the member’s property is developed but vacant, or whether the member’s property is undeveloped land. (Civ. Code § 4041(a)(3).)

Additional Requirements Pertaining to Email Delivery. Section 4041 defines a “valid email address” as “one that, after a notice is sent, does not result in a bounce or other error notification indicating failure of the message.”  If an association delivers a notice to a member’s email address which proves to no longer be a “valid email address”, the association must resend the notice to an alternative mailing or email address specified by the member. (Civ. Code §§ 4041(e); 4040.)

Failure of Member to Provide Annual Notice of Contact Information. In the event the member fails to provide the required annual notice of contact information to the association described above, then the association is required to use the last mailing address requested in writing by the member to deliver notices.  If the member has never issued a written request to use a specific mailing address, then the association must use the member’s property address within the association’s development for delivery of notices. (Civ. Code § 4041(c).)

Required Solicitation of Member Contact Information by Association
An association is required to solicit the annual notice of member contact information from each member on an annual basis. The solicitation must include both of the following: (Civ. Code § 4041(b)(2).)

  • A statement that the member is not required to provide an email address to the association; and
  • A simple method for the member to inform the association in writing that the member wishes to change their preferred delivery method for receiving notices.

Requirement to Update Records Prior to Annual Disclosures. The information obtained from members in response to the association’s solicitation of their contact information must be entered into the association’s books and records at least thirty (30) days prior to distributing the association’s annual budget report and annual policy statement. (Civ. Code § 4041(b)(1).)

Enforcement During Declared Emergencies

An HOA’s authority and duty to enforce violations of its governing documents is limited by Civil Code sections 4735 and 5875 where there are declared states of emergency, as described below.

Watering During Drought Emergencies
Civil Code section 4735 prohibits HOAs from imposing a fine or assessment against an owner for eliminating the watering of vegetation or lawns during any period where there is a declared state or declared local emergency due to drought. (Civ. Code § 4735(c); See also “Watering During Droughts.”)

Enforcement During Any Emergency
Civil Code section 5875 prohibits an HOA from pursuing any enforcement actions for violations of its governing documents during a declared state or local emergency if “the nature of the emergency giving rise to the declaration makes it unsafe or impossible” for the violating homeowner to “either prevent or fix the violation.” (Civ. Code § 5875.)

*Exception: Assessment Collection Actions – the foregoing prohibition on enforcement actions during declared states of emergencies does not apply to enforcement actions relating to the member’s nonpayment of assessments. (Civ. Code § 5875.)

Rights of Assembly and Speech

California law treats HOAs in many respects as ‘quasi-governments’ that must not restrict their members from exercising certain rights seen as fundamental and constitutionally protected. One example is Civil Code Section 4515 which serves to “ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another with respect to common interest development living or for social, political, or educational purposes.” (Civ. Code § 4515(a).)  The following information outlines the components of Section 4515 and the protections it gives to an HOA’s residents when they seek to exercise their rights of assembly and speech.

Assembly Rights
An HOA’s governing documents cannot prohibit a member or resident within the HOA from peacefully assembling or meeting with other HOA members, residents, and their invitees or guests during reasonable hours and in a reasonable manner for purposes relating to the following matters: (Civ. Code § 4515(b(1))

  • Living within a common interest development
  • HOA elections
  • Public elections
  • Legislation
  • The initiative, referendum or recall process

Meeting with Public Officials to Speak on Matters of Public Interest
An HOA’s governing documents similarly cannot prohibit members or residents from “inviting public officials, candidates for public office, or representatives of homeowner organizations” to meet with them within the HOA and to “speak on matters of public interest.” (Civ. Code § 4515(b)(2).)

Free Use of Common Area for an Assembly or Meeting
An HOA’s governing documents may not prohibit the members or residents from using the common area, including the HOA’s recreation hall or clubhouse, for such an assembly or meeting described above when that common area facility is not otherwise in use. (Civ. Code § 4515(b)(3).) No fee may be charged by the HOA to the person seeking to use a common area facility for such an assembly or meeting, nor may the HOA require the person to make a deposit, obtain liability insurance, or pay the premium or deductible on the HOA’s insurance policy.  (Civ. Code § 4515(c).)

Canvassing & Petitioning
An HOA’s governing documents may not prohibit members and residents from, at reasonable hours and in a reasonable manner, canvassing and petitioning other HOA members, residents, and the HOA’s Board of Directors for the assembly and meeting activities described above. (Civ. Code § 4515(b)(4).)

Speech Rights & Distributing Information
The purposes discussed above for which an HOA’s members may assemble and meet similarly apply to matters involving speech by members and residents.  Just as in the case with rights of assembly, an HOA’s governing documents may not prohibit members and residents from “distributing or circulating” information about common interest development living, association elections, legislation, public elections, or the initiative, referendum, or recall processes”, but the speech rights given to members and residents also extend to any “issues of concern to members and residents.” The HOA cannot require prior permission for a member or resident to distribute such information, but may require that the distribution be at reasonable hours and in a reasonable manner. (Civ. Code § 4515(b)(5).)

Social Media
An HOA’s governing documents may not prohibit a member or resident from using social media or other online resources to discuss any of the above-referenced matters, even if the content is critical of the HOA or its governance. However, an HOA is not required to provide social media or other online resources to its members, nor is an HOA required to allow members to post content on the HOA’s websites. (Civ. Code § 4515(b)(6).)

Violations & Penalties
A member or resident who is prevented by the HOA or its agents from engaging in any of these protected activities under Civil Code section 4515 may bring a civil or small claims court action to enjoin the enforcement of a governing document that violates the provisions of Section 4515.  The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation committed by the HOA or its agents. (Civ. Code § 4515(d).)

Related Links

Who’s Yard is it Anyway? Part I: Homeowner’s Speech
– Published on HOA Lawyer Blog (March 2025)

Board Meetings During Government Emergency

Civil Code Section 5450
Section 5450 was added to the Civil Code to address situations when physically gathering at a board meeting is unsafe or impossible because the HOA is in an area affected by one or more of the following conditions:

  • A state of disaster or emergency declared by the federal government.
  • A state of emergency proclaimed by the Governor under Section 8625 of the Government Code.
  • A local emergency proclaimed by a local governing body or official under Section 8630 of the Government Code

Teleconference Meeting without Physical Location
Conducting a teleconference board meeting generally requires “at least one director or person designated by the board” to be present at the physical location designated in the notice of the teleconference meeting. (Civ. Code § 4090(b).)  However, this physical location requirement does not apply to board meetings held under Section 5450 during government emergencies, provided that all Section 5450 meeting requirements (discussed below) are satisfied. (Civ. Code § 5450(b).)

Civil Code Section 5450 Meeting Requirements

  • Notice of the first board meeting conducted under Section 5450 for a particular emergency must be delivered to all members by individual delivery. (Civ. Code § 5450(b)(1).)
  • Notice for each meeting conducted under Section 5450 must include, in addition to other required content for meeting notices, all of the following: (Civ. Code § 5450(b)(2).)
    • Clear technical instructions on how to participate by teleconference;
    • The telephone number and email address of a person who can provide technical assistance with the teleconference process, both before and during the meeting; and
    • A reminder that a member may request individual delivery of meeting notices, with instructions on how to do so.
  • Every director and member has the same ability to participate in the meeting that would exist if the meeting were held in person. (Civ. Code § 5450(b)(3).)
  • Any vote of the directors must be conducted by a roll call vote. (Civ. Code § 5450(b)(4).)
  • Any person who is entitled to participate in the meeting must be given the option of participating by telephone. (Civ. Code § 5450(b)(5).)

When Mail Delivery or Retrieval is Not Possible; Email Notice
If, as a result of the disaster or emergency, mail delivery or retrieval is not possible at any onsite mailing address within the HOA, and the address on file with the HOA for that member is the same as the onsite mailing address, the HOA is required to send the notice of the first meeting referenced above to any email address provided to the HOA by that member. (Civ. Code § 5450(c).)

Reasonable Accommodations for Disabled Residents

A “reasonable accommodation” is a requirement both under the Federal Fair Housing Act (FFHA) and California’s Fair Employment and Housing Act (FEHA). FEHA provides greater protections against housing discrimination than those found in federal statutes such as the FFHA and the Americans with Disabilities Act (ADA).

“Reasonable Accommodation” Defined
HOAs are required to make “reasonable accommodations” in their rules and policies as necessary to afford a disabled person the ability to use and enjoy their their dwelling. A “reasonable accommodation” has been held to mean “a moderate adjustment to a challenged [HOA] policy, not a fundamental change in the policy.” (See Davis v. Echo Valley Condominium Assn. (2019) 945 F.3d 483, 490).  In a situation where a disabled individual’s requested change to an HOA’s policy would serve as a “fundamental alteration” to the policy, or would otherwise intrude on the rights of third parties, the requested change may not necessarily constitute a “reasonable accommodation” which the HOA is required to make:

“[The Plaintiff’s] proposed smoking ban amounts to a ‘fundamental alteration’ of the Association’s smoking policy…No one would describe a change from a smoking-permitted policy to a smoking-prohibited policy as an ‘accommodation’ in the policy. It is more rewrite than adjustment…Not only that, [the Plaintiff’s] proposal would intrude on the rights of third parties. Neighbors who smoke may well have bought their condos because of the Association’s policy permitting smoking. So, unlike the blind applicant asking to keep a seeing eye dog in an apartment building that bans pets, [the Plaintiff] is like the person with allergies seeking to expel all dogs from a building that allows pets. Here…a third party’s “rights [do] not have to be sacrificed on the altar of reasonable accommodation.” (Davis, at 492 (internal citations omitted).)

Verification of a Claimed Disability
When a disabled person makes a request for reasonable accommodation and the person’s disability is obvious, an HOA cannot request additional information to verify the existence of the claimed disability. When the disability is not obvious, an HOA can request information verifying:

  1. That the person is disabled;
  2. That there is a need for the requested accommodation; and
  3. Information verifying the relationship between the claimed disability and the requested accommodation.

An “Interactive Process”
When a request for reasonable accommodation is made, the HOA must engage in an “interactive process” with the person making the request. The interactive process serves to clarify what the individual needs, and to implement the appropriate accommodation.

Related Links

Disabled Residents and the Law
“The Legal Obligations of an Association in Accommodating Disabled Residents”
Educational article published by HOA attorneys of Tinnelly Law Group

Americans with Disabilities Act of 1990, as amended
Current text of the ADA

Uncontested Elections (Elections by Acclamation)

Notwithstanding the Davis-Stirling Act’s secret ballot requirements governing director elections, or any contrary provision in a HOA’s governing documents,  in a situation where, as of the deadline for submitting nominations, the number of qualified candidates is not more than the number of vacancies on the board to be elected (where the election is ‘uncontested’), as determined by the inspector(s) of elections, the association may, but is not required to, consider the qualified candidates elected by acclamation if all conditions specified in Civil Code Section 5103 have been met. Those conditions are specified below.

Regular Election within the Last Three (3) Years
The association must have held a regular election for the directors in the last three years. The three-year time period is calculated from the date ballots were due in the last full election to the start of voting for the proposed election. (Civ. Code § 5103(a).)

Notice of Election & Nomination Procedures
The association must have provided individual notice of the election and the procedure for nominating candidates as follows:

Initial Notice – At Least Ninety (90) Days Before the Deadline for Submitting Nominations: at least ninety (90) days before the close of nominations, individual notice must have been provided by the association of the following: (Civ. Code § 5103(b)(1).)

      • The number of board positions that will be filled at the election;
      • The deadline for submitting nominations;
      • The manner in which nominations can be submitted; and
      • A statement informing members that if, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may, after voting to do so, seat the qualified candidates by acclamation without balloting.

Reminder Notice – Between Seven (7) and Thirty (30) Days Before the Deadline for Submitting Nominations: between seven (7) days and thirty (30) days before the close of nominations, individual notice must have been provided by the association of the following: (Civ. Code § 5103(b)(2).)

      • The number of board positions that will be filled at the election;
      • The deadline for submitting nominations;
      • The manner in which nominations can be submitted;
      • A list of the names of all of the qualified candidates to fill the board positions as of the date of the reminder notice; and
      • A statement reminding members that if, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may, after voting to do so, seat the qualified candidates by acclamation without balloting. This statement is not required if, at the time the reminder notice will be delivered, the number of qualified candidates already exceeds the number of board positions to be filled.

Nomination Communications
The association must have provided the following nomination communications:

Nomination Acknowledgment Communication:  within seven (7) business days of receiving a nomination, the association must have provided a written or electronic communication acknowledging the nomination to the member who submitted the nomination (Civ. Code § 5103(c)(1).)

Nominee Qualification Communication:  within seven (7) business days of receiving a nomination, the association must have provided a written or electronic communication to the nominee, indicating either that (a) the nominee is a qualified candidate for the board, or (b) the nominee is not a qualified candidate for the board. If the communication specifies that the nominee is not a qualified candidate, it must also include the basis for disqualification and the IDR procedure by which the nominee may appeal the decision. (Civ. Code § 5103(c)(2).)

Combined Communication to Self-Nominees:  if the nominee and nominator are the same person (e.g., if it was a “self-nomination”), the association may combine the nomination acknowledgment communication and the nominee qualification communication into a single communication. (Civ. Code § 5103(c)(3).)

All Qualified Candidates Permitted to Run
The association must have permitted all candidates to run if nominated, except for nominees that have been properly disqualified. (Civ. Code § 5103(d)(1); See also “Candidate Qualifications.”)

Board Vote on Acclamation at Board Meeting; Candidates Listed on Meeting Agenda
The association’s board must have voted to consider the qualified candidates elected by acclamation at a board meeting for which the posted agenda of the meeting included the name of each qualified candidate that would be seated by acclamation via the board vote. (Civ. Code § 5103(e).)