Community Association Update: Issue # 44
This Community Association Update is part of our commitment to providing the highest quality legal services to our clients and industry partners. If your company or Association would like to see a topic or issue covered in future editions, feel free to call our offices, email us, or submit a question online!

Steven Tinnelly, Esq.
Tinnelly Law Group
HOA Assessment Collection During the Pandemic
*Asked and Answered
Asked - Our common area recreational facilities have been shut-down as a result of the pandemic. With this, and with the economic impact of COVID-19, should our HOA be excusing homeowners from having to pay assessments? What about reducing our assessments or changing our policy to not charge any late fees or interest on delinquent homeowners?

Answered - It is important to recognize that an HOA is a nonprofit corporation with a fixed budget. The amount of assessments it levies is based upon the budgeted gross expenses the HOA will incur to satisfy its contractual obligations. Those obligations include, among others, payment of insurance premiums, maintenance expenses, management expenses, etc. The HOA must continue to fulfill these obligations despite the pandemic.

We understand the impulse to assist those who have been financially injured as a result of the pandemic. However, an HOA is not the type of entity to render such financial assistance. It is not a for-profit lender, financial institution or government agency, nor does it receive government subsidies or guarantees to serve as a source of credit. If an HOA were to forbear from collecting assessments during this time, or to relax the penalties associated with assessment delinquencies, it will create disincentives for homeowners to pay assessments in a timely fashion. This will inevitably frustrate the HOA's ability to satisfy its obligations to the financial detriment of the entire membership.

A Member in Our Community Tested Positive for COVID-19 - What Do We Do?

*Asked and Answered
Asked -We just found out that two homeowners in a community we manage are infected with COVID-19 and they are currently self-isolating in their Units. What must be done on our end and what information can we disclose to help prevent the spread?

Answered - Even if there is not a known case of COVID-19 in the community, Associations should be taking the pandemic seriously. This includes implementing full compliance with Governor Newsom's  Executive Order ("Order"), the Department of Homeland Security's  Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response referenced in the Order,  and the  California Department of Public Health ("CDPH") Guidelines ("Guidelines"). 

If the Association is aware of a resident in the community infected with COVID-19, proper disclosures to the membership apprising them of the situation are recommended for heightened awareness with the goal of reducing the transmission of the virus between residents in the community.

Boards have a fiduciary duty to act in the best interests of their communities. Additionally, the Articles of Incorporation for many Associations state a corporate purpose of promoting the health, safety and welfare of the members. To that end, it is recommended that Associations disclose to members that resident(s) in the community have recently tested positive for COVID-19 and are in self-isolation. To protect the privacy of the infected members, names, addresses, and other identifying information should not be disclosed under any circumstances.

Dog Parks:  Best Practices for Limiting an HOA's Liability Exposure

One of the many benefits of living in a homeowners association ("HOA") is the amenities provided to its residents. Common amenities include recreational rooms, pools, and fitness facilities. One amenity gaining in popularity is designated for the community's canine companions: dog parks. Dog parks provide dogs with a designated off-leash area where they can run, exercise and play while minimizing damage to other common areas. However, having such an amenity could increase a HOA's liability exposure, especially if the dog park is not designed properly and the HOA does not have rules and regulations governing the use of the dog park. Accordingly, the purpose of this article is to provide HOAs with best practices and guidance on adopting rules regulating the dog park. 
Overzealous Board Members:  Understanding the Scope of the Board's Authority to Enforce the Governing Documents
Homeowners associations ("HOAs") are governed by a group of volunteer members known as a " Board of Directors " ("Board"). Their primary responsibilities include: (1) managing the common areas, (2) managing the HOA's finances, (3) setting policies to assist in the operation of the HOA, and (4) enforcing those policies along with the HOA's governing documents. The Board is therefore vital to the effective operation and management of the HOA, as well as preserving the property values of the HOA's members.

A majority of members purchase their units within the Association in reliance on the governing documents being consistently and faithfully enforced by the Board. However, that power may be abused in situations where a director uses his or her position to target and/or harass particular residents within the community. It is therefore important that the Board, and not any one individual Board member, take action to enforce the governing documents.

Additionally, it is important to point out that the Manager is not acting on his or her own volition; rather, the Manager is executing the duties delegated to him or her by the Association. Therefore, the Manager is acting on behalf of, and at the direction of, the Association. This distinction is important because it underscores the fact that the action is being taken by the Association or at the Association's direction, and not by any one individual.  

Each Board member should employ an enforcement procedure when observing a violation of the HOA's governing documents.  Following this procedure will mitigate the Board members', and by extension, the HOA's, liability exposure.

There is no Such Thing as a Free Lunch - Or a Free Clubhouse: Implementing Reasonable Limitations on Political Speech and Assembly Rights in California HOAs

We have just passed the two-year anniversary of  California Civil Code 4515 . This is the law that protects certain rights of members and residents to political speech and peaceful assembly within California community associations. With election season in full swing, it is important for Boards and management to be reminded that the rights afforded to members and to residents by Civil Code 4515 to utilize Association common area facilities and to campaign are not unlimited.

For many associations, Civil Code 4515 comes into play when members or residents (the code applies to both) seek to use common area facilities to hold campaign or political rallies. Rules that previously required the payment of a deposit and/or fee plus proof of liability insurance to reserve a facility for an event needed to be revised in light of the new law, which prohibits such fees, deposits, and insurance for those using the common area facilities for assembly purposes. Managers and Boards were left with the burden of determining how to differentiate between those wishing to use the common area facilities for private events such as birthday parties where a fee can still be charged and those who desired to use those same facilities for assembly purposes where fees cannot be charged.  Association rules & regulations and facility use agreements are useful tools in balancing the requirements of the law with reasonable restrictions that protect the Association.

Welcome Attorneys Joelle M. Bartkins and Sam I. Khil!

We are proud to announce the addition of attorneys  Joelle M. Bartkins, Esq.  and Sam I. Khil, Esq. to the firm.

Joelle graduated  cum laude  from the University of Pittsburgh, where she earned her undergraduate degree in Psychology and served as the Secretary for her sorority, Kappa Delta. She went on to attend California Western School of Law as a Justice Anthony Kennedy Scholarship recipient. She again graduated  cum laude  and served as an editor for the school's Law Review. Joelle was also a member of the Moot Court Honor Society, was elected Secretary of the Student Bar Association, and wrote for the school's newspaper,  The Commentary .

Before joining Tinnelly Law Group, Joelle worked in-house for a commercial real estate brokerage firm where she gained valuable experience as an in-house counsel and worked daily with a variety of clients to assist in negotiating and finalizing their commercial leases and related documents. She also spent several years working in the legal department for a national life sciences real estate investment trust before attending law school. Joelle has focused her career drafting, analyzing, and revising a variety of contracts in the real estate and in-house sectors.

Sam graduated  magna cum laude in dual degrees from the University of California, Irvine, with Bachelors of Arts degrees in International Studies and in Sociology. He received his Juris Doctorate from Suffolk University Law School, where he earned an emphasis in Business Law and Financial Services with academic excellence, thereby expanding on his prior experience as a loan consultant in the financial sector.

Since graduating, he has continued to build on his emphasis, and has acquired considerable experience in civil litigation relating to the representation of national financial institutions involving creditor's rights, secured transactions, contract disputes, regulatory compliance, and real estate law.   Prior to joining Tinnelly Law Group, Sam worked for a multi-jurisdictional civil litigation firm where he gained significant experience working on a range of civil litigation matters including receiverships, eminent domain, title curative, municipality disputes, probate, HOA law, and foreclosure litigation.

As we grow we remain committed to recruiting talented legal professionals who add unique value to our team, who strive for continued excellence, and who share our client-focused approach to the practice of law. Attorneys Joelle Bartkins and Sam Khil are the latest examples of how we are executing on that commitment. We are proud to have them aboard and to see them already producing results for our clients.

Welcome New TLG Clients!

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