Community Association Update: Issue # 56
  • Should an HOA Interfere with Parental Rights? NO!
  • Retain Your HOA Counsel Throughout Insurance Claim Matters
  • "Evergreen" Clauses - Avoiding Self-Renewing Contracts
  • Non-Complete Clauses
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!

Steven Tinnelly, Esq.
Tinnelly Law Group
Should an HOA Interfere with Parental Rights? NO!
Children are usually considered blessings and a joy to be around. Unfortunately, there is always one slightly rambunctious child who may be prone to causing trouble in Homeowners Associations (“HOAs”). What should an HOA and/or Board of Directors (“Board”) do in such scenarios? Is there anything the HOA can legally do?

While we understand that disturbances to other members and common areas caused by a child might place everyone in a state of discomfort, the HOA should not interfere in situations where parental rights might be in question—especially in situations where there have been no obvious or implied threats to the community members’ health and safety.

HOAs should not assume the powers of the U.S. government and place themselves in a situation of interference with parental rights. Such a scenario could cause unwanted liabilities for HOAs. If the child at question has a disability/special needs, that child and its family would be a protected class under the law. Protected classes may not be discriminated against and, in most cases, may be granted reasonable accommodations from governing document provisions. The parents and child might sue the HOA for discrimination and harassment, especially if the parent of the child has already warned the HOA to refrain from approaching the parent and/or child. Such a lawsuit would not be favorable to any HOAs.

Accordingly, we advise HOAs to proceed with caution and to start with a simple reminder of obligations letter to the Owner if the Board believes it would be in the best interests of the HOA to take action (i.e., benefit the health and safety of all HOA members/residents). 

Retain Your HOA Counsel Throughout Insurance Claim Matters
Homeowners Associations (“HOA”) are encouraged to report potential and actual claims to their insurance carriers. In fact, there is usually a provision within the HOA’s Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) that delineate the circumstances when an HOA’s manager should report a claim. If there isn’t such a provision, HOAs should adopt standard protocols regarding reporting a claim with its insurance carrier in situations where there may be coverage while also immediately taking action to mitigate any damages internally.

In most instances after a claim is reported to the HOA’s insurance carrier, an adjuster would be assigned. If the situation may be resolved with only the insurance adjuster, the HOA’s general counsel, the Board of Directors (“Board”), and HOA’s manager involved, then great. Oftentimes though, the insurance adjuster will assign insurance defense counsel as the claim might be a bit more complicated. In most cases, insurance assigned defense counsel will take over the matter and be the point of contact between the HOA and the insurance adjuster. HOAs will usually opt to not have their general counsel remain on the case as the HOA’s insurance carrier only covers insurance defense counsel’s attorney’s fees not the HOA’s general counsel fees. While that is understandable, we would urge Boards to reconsider taking the HOA’s general counsel completely off an insurance handled matter simply to conserve costs. In the long run, such a decision might end up causing greater liability and headaches for the HOA.

When a Board decides to forego having their general counsel involved in an insurance matter until resolution is achieved, the HOA might be resolving the claim in such a way that is not in the best interests of the HOA. For example, if insurance defense counsel fails to keep communications lines open between insurance defense counsel and the Board, when it becomes time to settle, the Board does not fully understand what they are agreeing to settle. Most insurance defense counsels work in some capacity for the HOA’s insurance carrier therefore, even though they have an attorney-client relationship with the HOA and should advocate zealously on the HOA’s behalf, the reality is the HOA’s insurance carriers are their bosses. As such, there is a slight conflict of interest. If the HOA’s general counsel is not involved in mediation, settlement negotiations, or preparation of the settlement agreement, the HOA’s Board might end up agreeing to something detrimental to the HOA. At that point, damage control would necessitate a malpractice lawsuit concerning insurance defense counsel and a bad faith insurance lawsuit—neither of which any Board wants a part of.

"Evergreen" Clauses - Avoiding Self-Renewing Contracts
*Asked and Answered
Asked – Our Board of Directors has been seeking to switch out a vendor for some time, but we have been waiting for the current contract to expire. It has become known that the current vendor contract automatically “renewed” for another 5-year period because we did not provide notice of our intent to terminate at least 90 days before the contract expired. This termination notice period was required under the terms of the agreement, but we were unaware of it until it was too late. Is there anything we can do to get out from under this contract?

Answered – Unfortunately, certain service agreements (such as waste disposal agreements, among others) may contain provisions whereby the contract continues in perpetuity, even after the expiration of the initial term, unless affirmative cancellation notice is provided to the vendor. These contracts are usually referred to as “evergreen” contracts because they automatically renew unless otherwise cancelled by the association within a specified period. Each situation is unique so counsel should be consulted to review the contract to determine if there is a legal basis for termination.

However, prevention is the best remedy so all significant vendor contracts should be reviewed by counsel, prior to execution, to remove or negotiate burdensome provisions such as “evergreen” clauses. This can save significant time and expense in the future. In addition, associations should calendar all termination requirements and notice periods contained in their agreements so that they do not lapse.

Non-Compete Clauses
*Asked and Answered
Asked – An employee (“Employee”) of one of our vendor’s (“Vendor”) has left the company and is now employed by a competing firm (“Competitor”). We want to terminate our contract with Vendor and switch to Competitor so that we can continue to use Employee. Vendor’s contract has a non-compete clause stating that we cannot “directly or indirectly” hire any of Vendor’s employees for twelve (12) months after contract termination. Is such a provision enforceable?

Answered – Non-compete clauses are very common, especially in routine service vendor contracts (e.g., building maintenance, management companies, etc.). They are meant to prevent clients from leaving when the employee leaves; after all, the relationship is with the employee, not the employer. Fortunately, such non-compete clauses are generally unenforceable in California.

California law demonstrates a strong aversion to contract provisions that place a restraint on profession, trade, or business. Indeed, unless the covenant falls within one of the expressly defined exceptions, it is void and unenforceable. (See Cal. Bus. & Prof. Code § 16600.

Moreover, such a provision has been rendered void as an impermissible restraint on trade under California case law. For example, in VL Systems, Inc. v. Unisen, Inc., the Court held that a very broad no-hire provision of a contract between consulting company and client, under which client could not hire any of consulting company’s employees for twelve (12) months after the contract terminated, was unenforceable, in violation of the statute prohibiting restraints on engaging in a lawful, profession, trade, or business of any kind. (2007) 152 Cal. App. 4th 708. Like in VL Systems, Inc., the no-hire provision in the Vendor’s contract prevents the association from hiring any of Vendor’s employees for twelve months after the contract terminated. Thus, although not a true “covenant not to compete,” the “effect of the no-hire provision is to restrict the employment of [Vendor’s] employees; it is inconsequential whether the restriction is termed a ‘no-hire’ provision between [Vendor] and [the association] or a ‘covenant not to compete’ between [Vendor] and its employees.” (Id. at pp. 716-17.)

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