Category Archives: Topic Index

Maintenance Requirements for HOA Pools

The requirements for operating and maintaining “public pools” have been subject to various regulatory changes in recent years. Those changes have impacted pools within private homeowners associations (HOAs), as the California Legislature and Department of Health have defined the term “public pools” to include pools located within private HOAs and residential developments. (Health & Safety Code §§ 116049.1(a), 116064.2(a)(4)(B); 22 CCR § 65503(a)(9).) The more notable changes include those which mandate (1) new parameters for water characteristics, (2) strict monitoring of pool facilities and requirements for written records, (3) enforcement of specific safety and first aid equipment, (4) requirements that newly constructed public pool enclosures have at least one keyless exit and self closing latches, and (5) the imposition of health restrictions for employees or pool users. Some of these changes are discussed below.

Daily Testing
The most significant change is that which requires HOAs with twenty-five (25) or more separate interests to test pool and spa water chemical composition and temperature on a daily basis, and to keep a daily log of the testing. (22 CCR § 65523(a).) Daily testing may be performed “using a properly calibrated automatic chemical monitoring and control system” if allowed by local enforcing authorities. (22 CCR § 65523(a).) For HOAs with fewer than 25 separate interests, testing must be performed and documented “at least two times per week and at intervals no greater than four days apart.” (Health & Safety Code § 116048(a).)

Safety Equipment
Other notable changes deal with the installation/maintenance of safety and first aid equipment. For example, that equipment must include a 12’ minimum length rescue pole and a 17” minimum (exterior diameter) life ring with an attached throw rope having a minimum of 3/16” diameter. (22 CCR § 65540(a).)

Health Restrictions
Previous regulations prohibited persons with diarrhea from using the pool. Now, pool access must be denied to any person, including pool monitors, that have symptoms “such as a cough, cold sore, or nasal or ear discharge or when wearing bandages.” (22 CCR § 65541(b).)

Pool Enclosures; Gates & Doors
Finally, there are specific requirements in Section 3119B of the California Building Code for at least one gate/door into the pool enclosure to allow for egress, without a key, for emergency purposes. If all gates/doors allow for keyless exit, no special signage is necessary, otherwise the keyless exit(s) must have signage stating “EMERGENCY EXIT” in at least 4” high lettering.

Censuring Directors

Associations may encounter problems and potential liability exposure resulting from a particular director’s offensive, reckless or irresponsible behavior. Removing such a director from his/her seat on the board before the end of the director’s term of office is often difficult to achieve because it typically requires a formal recall election and membership vote. (See “Removal & Recall of Directors.”) Prior to pursuing that course of action, a formal “censure” of the director is used by the board in order to induce the director to immediately constrain his/her conduct.

A censure is as an official condemnation or reprimand that is used to formally recognize disapproval of one’s actions. Examples of conduct that is commonly used as the basis for censuring an association director include:

  • A breach of the director’s fiduciary duties;
  • Improper or offensive conduct toward association members, vendors or employees;
  • Conflicts of interest which the director failed to disclose;
  • Disruption of board meetings (i.e., overt hostility, profanity, intimidation, etc.)

The censure is used to demonstrate that the board does not condone or endorse the misbehaving director’s conduct, and that the board is taking steps to prevent the conduct from continuing. The censure may help insulate the association and the board from potential liability that may arise as a result of the director’s conduct.

Censure Procedure
A censure is performed via a motion which is approved by a majority of directors in a duly held board meeting at which quorum is present. The censure is then recorded in the meeting’s minutes, along with information explaining the reasons for the censure.

Impact on Censured Director’s Powers & Authority
A censure is an official reprimand and statement of disapproval. While it is a serious action, a censure does not serve to remove a director from the board, nor does it serve to restrict the director’s powers and authority he/she has as a member of the board. The board may not unilaterally remove the director from the board unless the bylaws provide the board with the power to do so (i.e., if the misbehaving director ceases to meet the required director qualifications). (See “Removal & Recall of Directors” and “Director Qualifications.”)

Ethics Policy
Associations often adopt an ethics policy (aka a “code of conduct”) for all directors and committee members to sign. The ethics policy places directors and committee members on notice of their respective roles and responsibilities, and specifies the types of conduct that could result in a censure.

Related Links

Rogue Directors: Battling Bad Behavior – Article published by HOA Attorneys at Tinnelly Law Group

Watering During Droughts

California’s recurrent drought problems have prompted governmental action designed to promote water conservation measures within residential homeowners associations. For example, legislation in recent years has served to provide homeowners with rights to install low water-using plants, artificial turf and clotheslines regardless of whether an association’s governing documents (i.e., its CC&Rs or architectural standards) contain provisions prohibiting the use of such items. (See also Civ. Code §§ 4735, 4750.10.)

Legislation has also been enacted to limit an association’s ability to fine homeowners for failing to water their lawns or vegetation during government-declared drought periods:

“…an association shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which either of the following have occurred: (1) The Governor has declared a state of emergency due to drought… (2) A local government has declared a local emergency due to drought…” (Civ. Code § 4735(c).)

*Exception: Owner Properties that Receive Recycled Water
An association is still permitted to impose a fine or assessment against an owner for failing to water his lawn or vegetation during a government-declared drought period provided that the owner, prior to being fined or assessed, “receives recycled water…and fails to use that recycled water for landscaping irrigation.” (Civ. Code § 4735(d).)

Related Links

Governor Lifts 25% Mandatory Water Reduction & Directs Local Water Suppliers to Regulate Water Conservation – Published on HOA Lawyer Blog (May 19, 2016)

AB 786 Signed! Clarifying when HOAs May Fine Homeowners for Brown Lawns – Published on HOA Lawyer Blog (October 28, 2015).

Mortgagee (Lender) Approval for CC&R Amendments

One of the requirements applicable to amending an association’s CC&Rs is that approval for the amendment must be obtained by the percentage of members required by the CC&Rs “and any other person whose approval is required” by the CC&Rs. (Civ. Code § 4270(a)(1); See also “Amendments to Declaration (CC&Rs).”) When an association seeks to amend certain provisions of the CC&Rs (often defined as “material modifications” or “material amendments”), the CC&Rs may require approval for the amendment from not only the members, but also from the mortgagees (lenders) holding first mortgages on the lots or units within the association’s development. The language of such requirements is typically modeled in the following form:

“Any material modifications to this Declaration shall not become effective without the prior written consent of at least seventy-five percent (75%) of the Mortgagees holding first Mortgages on the Residential Lots within the Project.”

Material modifications that require mortgagee approval often pertain to provisions in the CC&Rs governing how assessments are allocated, the scheme for enforcement of the governing documents, the use of insurance proceeds, and the allocation of maintenance responsibilities.

“Written Consent” of Mortgagees that Fail to Return Ballots
Obtaining mortgagee approval for CC&R amendments is often difficult for an association because mortgagees and lenders rarely respond to an association’s ballot issues. The California Court of Appeal addressed this problem in the case of Fourth La Costa Condominium Owners Association v. Seith (2008) 159 Cal.App.4th 563. In Seith, the association was pursing a CC&R amendment that required “written consent” of the mortgagees. The association mailed letters and ballots to the mortgagees as required by the association’s CC&Rs. The letters were sent via Certified Mail, Return Receipt Requested (“RRR”), and informed each of the mortgagees that their signature on the RRR would be deemed “consent” of the proposed amendment if the mortgagees did not return their respective ballots within thirty (30) days. (Seith, at 573.) The trial court found the association’s approach to be an acceptable method of obtaining written consent from the mortgagees, and the Court of Appeal ultimately agreed with the trial court’s decision:

“As the court noted, the CC&R’s required an affirmative vote of owners, but only written consent by lenders. The court explained ‘[t]his would tend to indicate that the CC&R’s, as originally drafted, contemplated a distinction between the forms of approval required from each group, with the approval from the latter group being more relaxed in form. The CC[&]R’s did not specify the method by which the consent may be obtained. [The Owners Association’s] method of assuring receipt of the proposed changes by the lenders and thereafter providing them with 30 days within which to reject the changes is as good as any.’ We agree with the court’s assessment.” (Seith, at 573.)

Pre-Lien Dispute Resolution

Where an owner fails to remit assessment payments within a timely fashion, an association may record an assessment lien against the owner’s property to act as security for the payment of the owner’s delinquent assessment debt. (Civ. Code § 5675(a); See also “Notice of Delinquent Assessment (Assessment Lien).”) The assessment lien effectively prevents the owner from transferring title to the owner’s property and potentially from re-financing the property without first satisfying the owner’s assessment debt and having the assessment lien released.

Pre-Lien Offer of Internal Dispute Resolution (IDR)
Prior to recording an assessment lien, an association is required to offer the delinquent owner the opportunity to participate in internal dispute resolution (“IDR” aka “Meet & Confer”). (Civ. Code § 5670).) The purpose of IDR is to provide a non-judicial forum to resolve disputes between an owner and the association that will not result in a fee or charge to the owner. For information on the IDR procedure and its requirements, see “Internal Dispute Resolution (IDR).” When the association’s pre-lien offer of IDR is accepted by the owner, the association must participate in IDR prior to recording the assessment lien. (Civ. Code §§ 5670, 5910(c).)

Right to Request IDR; Pre-Lien Letter
At least thirty (30) days prior to recording an assessment lien, the association is required to provide the owner with a pre-lien letter that is sent via certified mail. (Civ. Code § 5660; See also “Pre-Lien Letter.”) The pre-lien letter must contain various items of information; one of those items is a statement as to the owner’s right to dispute the assessment debt by submitting a written request for IDR to the association. (Civ. Code § 5660(e).) If the owner requests IDR before the assessment lien is recorded, the association must participate in IDR prior to recording the assessment lien. (Civ. Code § 5670.)

Clotheslines & Drying Racks

New Civil Code Section 4753 was recently added to the Davis-Stirling Act in order to render void and unenforceable any provision of an association’s governing documents that “effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in the owner’s backyard.” (Civ. Code § 4753(c).)

“Clothesline” and “Drying Rack” Defined

  • “Clothesline” – For the purposes of Section 4753, a “clothesline” is defined as a “cord, rope or wire from which laundered items may be hung to dry or air.” However, a “balcony, railing, awning, or other part of a structure or building shall not qualify as a clothesline.” (Civ. Code § 4753(a).)
  • “Drying Rack” – For the purposes of Section 4753, a “drying rack” is defined as an “apparatus from which laundered items may be hung to dry or air.” However, a “balcony, railing, awning, or other part of a structure or building shall not qualify as a drying rack.” (Civ. Code § 4753(b).)

Applies to “Backyards Designated for the Exclusive Use of the Owner”
Section 4753 applies “only to backyards that are designated for the exclusive use of the owner.” (Civ. Code § 4753(d)(3).) The language in Section 4753 does not state whether an owner has rights to install a clothesline or drying rack in other areas (i.e., in the front yard of the owner’s property or in common area). The analysis and legislative comments regarding Section 4753 that were generated before the law was ultimately enacted indicate an intent to limit those rights solely to “backyards”:

“Owners of a separate interest in [an association] would be free to use clotheslines and drying racks, subject to reasonable restrictions imposed by the [association], in backyards that are designated for the exclusive use of the owner.  [Section 4753] would not preclude [associations] from restricting the use of clotheslines in other areas of a separate interest, like a front yard, or in common areas.” (See Senate Judiciary Cmte Report on AB 1448 (7/7/15).)

“Reasonable Restrictions” on an Owner’s Backyard
Section 4753 allows for an association to impose “reasonable restrictions on an owner’s backyard for the use of a clothesline or drying rack,” where “reasonable restrictions” are defined as restrictions “that do not significantly increase the cost of using a clothesline or drying rack.” (Civ. Code § 4753(d).) However, unlike in the context of restrictions on solar panels, the Civil Code does not specify what exactly constitutes a “significant” increase in cost for the purposes of Section 4753.

“Reasonable Rules” Governing Clotheslines or Drying Racks
Section 4753 allows for an association to establish and enforce “reasonable rules governing clotheslines or drying racks.” (Civ. Code § 4753(e).) Section 4750.10 does not define what constitutes a “reasonable rule” in this respect.

Tenant’s Rights: Civ. Code § 1940.20
Section 4753 was enacted concurrently with Civil Code Section 1940.20. Section 1940.20 grants a tenant the right to use clotheslines or drying racks in the tenant’s “private area” if approved by the tenant’s landlord and subject to various conditions. Those conditions generally include: not interfering with the maintenance of the property, not creating a health or safety hazard, not blocking doorways, not interfering with walkways, not affixing to a building without the landlord’s consent, not violating reasonable time or location restrictions, and obtaining the landlord’s consent. (See Civ. Code § 1940.20(b).) A tenant’s “private area” is defined as “an outdoor area or an area in the tenant’s premises enclosed by a wall or fence with access from a door of the premises.” (Civ. Code § 1940.20(a)(3). )

Related Links

AB 1448 Signed! HOA Bans on Clotheslines Get ‘Hung out to Dry’ – Published on HOA Lawyer Blog (10/12/15)

Recorded Notice of Noncompliance

Older sets of CC&Rs often contain provisions allowing the association to record a “notice of noncompliance” with the county recorder’s office in response to a member’s violation of the CC&Rs. Such recordings are no longer permitted as a result of the holding in Ward v. Superior Court (1997) 55 Cal.App.4th 60:

“Since the cited statutes do not authorize the recording [of the notice of noncompliance] and no other statutory authority can be found, it must be concluded that there is no statutory authorization for recording such a document.” (Ward, at 65.)

“Nor is there authority for the proposition that the parties may be private contract create a right to record, for their own private purposes, documents which are not ‘authorized or required by law to be recorded.’” (Ward, at 66.)

Distinct from Assessment Lien
The above does not prohibit an association from recording a “Notice of Delinquent Assessment” (an “assessment lien”) in response to a member’s assessment delinquency. Assessment liens may be recorded pursuant to Civil Code Section 5675.

Artificial Turf (Artificial Grass)

No Prohibitions on Artificial Turf
Civil Code Section 4735 renders void and unenforceable any provision of a homeowners association’s governing documents or architectural or landscaping guidelines that “[p]rohibits, or includes conditions that have the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass.” (Civ. Code § 4735(a)(2).)

Section 4735 also grants similar protections to homeowners seeking to use low-water using plants, as well as restricts an association’s ability to fine homeowners for failing to water their landscaping during government-declared drought periods. (See “Low Water-Using Plants” and “Watering During Droughts.”)

Related Links

“Effective Immediately! HOAs may not Prohibit Artificial Turf (Grass)” – Published on HOA Lawyer Blog (September 8, 2015). 

Association Manager (Managing Agent)

“An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (Civ. Code § 2295.) The Davis-Stirling Act and the Business & Professions Code contain provisions addressing persons whom provide management services to associations and common interest developments under an agency relationship:

Davis-Stirling Act: “Managing Agent”
A “managing agent” is defined under the Davis-Stirling Act as “a person who, for compensation or in expectation of compensation, exercises control over the assets of a common interest development.” (Civ. Code § 4158(a).) The term managing agent does not include a regulated financial institution or an attorney acting within the scope of the attorney’s license. (Civ. Code § 4158(b).)

Business & Professions Code: “Common Interest Development Manager”
A “common interest development manager” (“CID Manager”) is defined under the Business & Professions Code as “an individual who for compensation, or in expectation of compensation, provides or contracts to provide management or financial services, or represents himself or herself to act in the capacity of providing management or financial services to a community association.” (Bus. & Prof. Code § 11501(a).)  A CID Manager also includes the following:

  1. A person in a partnership, a corporation, or any other business entity who advises, supervises, and directs the activity of an association. (Bus. & Prof. Code § 11501(b)(1).)
  2. A person operating under a fictitious business name who provides the services of a manager. (Bus. & Prof. Code § 11501(b)(2).)

“Certified” CID Manager – A CID Manager may become and be referred to as a “certified common interest development manager” upon satisfying the educational requirements set forth in Business & Professions Code Section 11502. The term “certified common interest development manager” does not include a common interest development management firm. (Bus. & Prof. Code § 11503.)

Services Performed by Managing Agent
An association’s board of directors has the authority to delegate much of its duties and responsibilities to the association’s managing agent. (See “Delegating Duties & Authority.”) The association’s managing agent often administers the bulk of the association’s day-to-day operations. The services which may be performed by a managing agent are generally categorized into “financial services” and “management services”:

Financial Services – Financial services means “acts performed or offered to be performed, for compensation, for an association, including, but not limited to, the preparation of internal unaudited financial statements, internal accounting and bookkeeping functions, billing of assessments, and related services.” (Bus. & Prof. Code § 11500(c).) A licensed CPA may provide financial services to an association within the scope of his/her license, in addition to the preparation of reviewed and audited financial statements and the preparation of the association’s tax returns. (Bus. & Prof. Code § 11501(b).)

Management Services – Management services means “acts performed or offered to be performed in an advisory capacity for an association including, but not limited to, the following”: (Bus. & Prof. Code § 11500(d).)