Community Association Update: Issue # 51
  • SB 9 Signed! Statewide Re-zoning of Single-Family Neighborhoods & Urban Parcel Splits
  • Removal of Common Area Amenities
  • Recall Petitions
  • Court Confirms not Everyone is Entitled to a Protected View
  • Megan's Law HOA Disclosures
Dear ,

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!

Sincerely,
Steven Tinnelly, Esq.
Tinnelly Law Group
SB 9 Signed! Statewide Re-zoning of Single-Family Neighborhoods & Urban Parcel Splits
Senate Bill 9 (SB 9) was recently signed into law making revisions to the California Government Code effective January 1, 2022. This bill is touted as a major step in California’s efforts to address the housing crisis by re-zoning single family lots to allow for duplexes and more.

California law will now permit the division, partial or full tear down of an existing single-family home to create two (2) separate residential units, which need not be attached and which are eligible to be sold separately. Because this law will operate in conjunction with existing law permitting the construction of Accessory Dwelling Units (ADUs), it will allow even more units to be built on the parcel without public review. SB 9 also permits urban lot splits in residential zones to create two (2) equal parcels of a minimum of 1,200 square feet. The parcel split may operate in conjunction with SB 9’s allowance of two (2) separate residential units on a single parcel–allowing for four (4) units to ultimately be constructed on a parcel where only one single-family home may have existed (and even more units if ADUs and JADUs are also constructed on the newly subdivided parcels).

The common question/concern we are receiving in connection with SB 9 is whether it will override homeowners association (HOA) governing documents that prohibit the type of development projects within HOAs that SB 9 is intended to provide. For example, it is common for an HOA’s CC&Rs to contain provisions prohibiting homeowners from subdividing their lots. Unfortunately, SB 9 is silent with respect to this issue and those in the HOA legal community are concerned that SB 9 could be construed as demonstrating public policy in favor of these types of projects. California courts have held that CC&R restrictions which violate public policy may be challenged and held as enforceable.

Removal of Common Area Amenities
*Asked and Answered
Asked – Many owners in the community have requested that the board of directors consider removing an old, largely unused tennis court. We have three other tennis courts in the community and the space could be repurposed for a variety of other uses. Does the board have the authority to remove the tennis court?

Answered – Generally, not without membership approval. The membership pays dues for the maintenance, repair, and use of common area amenities. Many owners make their purchasing decisions in reliance on the available facilities a community has to offer. If the board unilaterally begins removing amenities without membership approval, there could be a risk of exposure to potential legal action. In addition, some associations have specific provisions in their governing documents that prohibit the elimination of common area amenities without membership approval.

That said, there can be limited situations where a board may have the authority to remove a common area amenity without a vote of the membership. Such situations may turn in part on the size of the amenity, whether it poses a hazard to the residents, and if the governing documents authorize such an action. However, disrepair alone generally cannot be the sole basis of a removal decision as the association usually has a duty to maintain common area amenities in good repair.

Recall Petitions
*Asked and Answered
Asked – We recently completed our annual meeting/election where approximately ninety-four percent (94%) of the membership participated. Almost immediately thereafter, we received a petition to recall the Board of Directors (“Board”). Must our association go forward with the recall election? What alternate options are available to the Board?

Answered – Recall elections can disrupt the effective operation of the community association and are often a costly endeavor. And, in most cases, such efforts fail to achieve the petitioning members’ desired objective—the removal of the Board. This is especially true in situations where the community association’s Bylaws allow for cumulative voting and members try to recall individual directors. (See Removal & Recall of Directors – Individual Director or Directors.) Nevertheless, under most circumstances, the community association must take action in response to a petition to recall the Board. 

Each recall petition is unique. Thus, each community association must confer with its attorney to determine the appropriate response to a recall petition.

Court Confirms, Not Everyone is Entitled to a Protected View
*Unpublished Case
In California jurisprudence, it is well established that a homeowner “has no right to an unobstructed view over adjoining property.” (Posey v. Leavitt (1991) 229 Cal. App. 3d 1236, 1250.) Such right may, however, “be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions.” (Id.) And, even then, the right must be expressly stated and narrowly construed.

For example, in the recent unpublished case of Davis v. Irvine Terrace Community Association (2021) 2021 Cal. App. Unpub. LEXIS 53, an owner (“Owner”) sued the association (“Association”) and others alleging a breach of the Association’s Covenants, Conditions and Restrictions (“CC&Rs”). Owner claimed that the Association breached the CC&Rs when it approved a neighbor’s architectural application, which included the construction of a house that would obstruct Owner’s view. While the CC&Rs protect views as to landscape, fences and walls, it contained no similar protection as to houses. Owner nevertheless argued that such protection existed because of the Association’s obligation to enhance and protect “the value, desirability and attractiveness of” Owner’s property. (Id. at p. *16.) The Court rejected Owner’s argument.

In rejecting the Owner’s argument, the Court noted that the CC&Rs included no view protection as to structures such as houses; the Court was unwilling to read into the CC&Rs additional view protections based on the impact architectural modifications would have on the value, desirability and attractiveness of the Owner’s property. Moreover, the Court pointed out that neither the CC&Rs nor the Architectural Guidelines were “intended to protect individual homeowners’ interests. They are intended to protect the community as a whole.” (Id. at p. *14.) Thus, when reviewing an application for an architectural modification, an association need not consider the impact such construction will have on the interests of individual homeowners; rather, the association is only required to consider how such construction will impact the entire community.

Megan’s Law HOA Disclosures Regarding Registered Sex Offenders – Proceed with Caution!
Megan’s Law is a federal law that permits authorities to release information about registered sex offenders (“Registered Offender”). California has a database of Registered Offenders available for public viewing on the internet (see www.meganslaw.ca.gov). Searches can be done by a Registered Offender’s name, or by city, zip or within a predetermined radius of a selected park, address or school. Once a Registered Offender has been located, his or her picture is displayed, as is the person’s present address, offenses, known aliases and any distinguishing scars, marks and tattoos.

An HOA Board is not prohibited from sharing information obtained from this database with its membership provided it is for the purpose of protecting persons at risk. Additionally, California Penal Code Section 290.03 allows Boards to pass that information along to the Association’s membership as long as it merely restates factual details. However, Boards should nonetheless tread very carefully when considering making disclosures regarding Registered Offenders within the Association because any error in its disclosure could lead to potential civil as well as criminal exposure.

FIRM NEWS
Welcome Attorneys Cang N. Le and Josh D. Mendelsohn to the Tinnelly Team! 
We're to proud to announce the addition of attorneys Cang N. Le, Esq. as Partner, and Josh D. Mendelsohn, Esq. as Senior Attorney, to the firm.

Cang Le has practiced community association law for over fifteen years representing community associations from inception to the board room, the courtroom, and appellate courts. He has represented every imaginable type of community association including large-scale developments, new developments, mixed-use, senior communities, golf club and lake developments, master and sub-associations, and mobile-home and RV parks. He will lead the firm’s Litigation Team, in addition to responsibilities related the firm’s operations and management.
Josh Mendelsohn has over fifteen years’ experience representing clients in operational, transactional and litigation matters concerning real estate, corporate governance and employment. He has successfully represented homeowners associations in complex litigation concerning disputes over maintenance and repair, easement rights and contracts.
Prior to joining Tinnelly Law Group, Josh spent two years as an ethics attorney with the State Bar of California. During his tenure with the State Bar Josh investigated and prosecuted ethical misconduct by attorneys. This experience and knowledge will serve Tinnelly Law Group’s clients, as ethics is a central focus of everything we do as lawyers, managers and members of the community association industry.

With our continued growth, we have been searching for attorneys who can hit the ground running, who can help build upon our firm’s brand and operations, and who will blend in easily with our unique culture. We are excited to have succeeded in that search. Cang and Josh are exceptional attorneys who are passionate about their work and the opportunities they have to be problem solvers and educators. We are thrilled to have them join our team and to expand upon the value our firm adds to our clients and our dynamic industry throughout California.
Announcing the Tinnelly Talks Podcast!
We have been working on something exciting! The Tinnelly Talks Podcast launched earlier this year, where we discuss the common legal issues facing today's community associations.

Co-Hosts Steve Tinnelly, Esq. and Ramona Acosta, PCAM, along with many special guests, will be diving deep into topics that will help educate, inspire and provide you with tools to better serve your community whether you're a board member, manager or homeowner! New episodes drop monthly.

Our September episode on "Exclusive Use Common Areas" is out now! Take a listen at www.tinnellylaw.com/podcasts or wherever you get your podcasts.
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