legal

Highland Springs South Homeowners Association, Inc. v. Reinstatler, 907, N.E. 2d 1067 (Ind. App., 2009). A homeowner requested approval from the subdivision's architectural committee to build an addition to her house. The committee denied the request. The association filed suit to obtain an injunction to prevent her from commencing construction. The trial court dismissed the association's complaint as being premature. On appeal, the court rejected the homeowner's argument that the fact that she obtained a variance from the municipality meant that she could proceed with the construction notwithstanding the restrictive covenants. The court found the zoning ordinances and laws cannot relieve real estate from valid private restrictive covenants. The court also rejected the defendant's argument that the association's claim was premature because she had not started construction of the improvements. The court found that because the homeowner had procured a variance, had received approval to obtain the necessary building permit and had indicated that she would begin construction as soon as the weather permitted was sufficient to establish a present existence of an actual threat that she would take action in violation of the covenants. Therefore, the court found that the association's action was not premature.

Curci Village Condominium Association, Inc. v. Santa Maria. 14 So. 3d 1175 (Fla. App. 2009). The defendant condominium unit owner made certain landscaping modifications to the backyard of her condominium unit. Before control of the condominium association was transferred to the homeowners, defendant inquired whether she could put decorative improvements in her backyard. The manager of the developer, who was also president and director of the association at the time, told her that he did not see a problem with the proposed improvements. However, the homeowner never requested or obtained written permission from the association to make the modifications. Shortly after control of the association was turned over to the homeowners, the association demanded that the modifications be removed. The unit owner filed suit against the association seeking declaratory relief that she was not required to remove the landscaping modifications. The court noted that the declaration required the homeowner to obtain written permission of the board of directors prior to making improvements or alterations to her property or the common elements. The homeowner claimed that the association was estopped from claiming lack of compliance with the condominium documents because of the verbal permission she received from the president and director of the association to make the modifications. The court held that the unit owner could not reasonably rely upon the verbal representation as constituting the written approval from the board of directors that was required by the declaration. However, the court found that there were issues of fact with respect to the unit owner's claim that the board's refusing to consent to the modifications was arbitrary and capricious and remanded the case for further proceeds on that claim.

Many Thanks to Beth for her Article Check out Beths' Blog (link below) for more uptodate Q&A.



Helpful Links: First Time Visitors Returning Visitors Important HOA Disclosures Davis-Stirling Act in Plain English - 2008 Plain English Law Class Classes and Virtual Classes Publications Telephone & Web Consultations What's New New Records Inspection - AB1098 New Election Requirements per SB61 Inspectors of Election Manager Certification Mediation Lease Restrictions Amending Governing Docs Can't Amend? Resources Request for Services	Board Maintenance Decisions – After Ritter vs. Churchill Condominium Association [Ritter vs. Churchill Condo Assn – 2008 WL 2807618 (Cal.App. 2 Dist.) , 08 Cal. Daily Op. Serv. 11 , 192] *What Criteria is Important As Evidenced in Ritter vs. Churchill Condominium Association?* This recent appellate court decision in California raises some interesting quandaries (unless appealed and some things change) for HOA Boards and HOA members. (1) Is a *Board* safe when it acts on experts’ advice in any given situation , and there is no malice involved? *(It would appear so , at least as it relates to personal individual liability).* (2) Is the *HOA* safe when the Board relies on experts’ advice in any given situation? (Not necessarily – if the decision of the Board is found to be harmful to members – or for that matter – residents , vendors , etc. as well as has been the experience in other serious cases.) (3) Should all HOA board decisions be given the benefit of the doubt (effecting the “Business Judgment Rule” of deference to Board decisions) when being reviewed by a court? (*The answer is “no” , not always.) In Lamden v. LaJolla Clubdominium* , which is a leading case in California supporting the premise that courts should give HOA Board decisions on maintenance deference , the question was whether the Board’s determination on termite treatment should be upheld , when an owner sued to try and enforce a different treatment scheme that was more invasive (spot treatment vs. tenting remedies). In my view , and extremely simplified , the court essentially found that since the Board had a plan and relied on experts in formulating it , the court would not delve into whether the owner’s suggestion was a better plan. The facts of *Churchill* have some very distinct differences , and although the court found that the individual board members should not have liability for the decision , the HOA should be required to do some things as demanded by the owners. In other words , the directors were not personally liable for failure to resolve a slab penetration issue , but the HOA as an entity was and would have to resolve the slab penetration issue , at least as to the owners who sued (two separate Ritter individuals). There was language in *Churchill* tying in consideration of whether the Board/HOA had the same or similar duties as a landlord would have to maintain the property in a way that did not allow for a hazardous condition or safety issue. The main focus of the *Churchill* case was from the corporate board perspective , in the context of determining whether it was a contradiction in terms that the board members could be cleared but the HOA could not – and whether the Board’s decision about the slab penetration issue should be given deference. However , slipped in was discussion of the Frances T. case of years ago , establishing liability for HOAs/Boards for failure to take measures that would enhance the safety of residents , and that is a distinction from the *Lamden* case. In *Lamden* , owners’ health and safety was not an issue. In *Churchill* , health , safety , City Code requirements , and quiet enjoyment of property were all issues. In a nutshell , the HOA was hurt in the first place when , during construction , an important aspect - a building Code requirement- was missed. Slab penetrations created for pipes and wires should have been properly filled and were not. This fact was missed by the City inspectors who issued permits. That left the HOA in a vulnerable position – fill after the fact at a considerable cost ($2700 per unit at the time of this case)? or not. The Ritters raised complaints of odors and smoke invading their units , because of these slab penetrations. The Ritters did some remodeling to their units and they made some changes recommended as a possible means of resolving the problem. The work they had done did not solve the problem. Both parties consulted with experts who proposed fixes. The Ritters wanted the HOA to take responsibility to fill the slab penetrations , and the HOA thought the Ritters should have done so when doing their remodeling. The HOA took action to order them to do so , and imposed daily fines when they did not. The whole thing ended up in this litigation. I felt very much like the court was leaning more toward *Francis T* than *Lamden* and a landlord’s duty as in *Francis T* is a higher duty when it comes to safety issues than that of a corporate HOA board as it relates to maintenance only. It seemed to me that the court had determined the owners who were complaining deserved more protection since the HOA had not taken responsibility in the situation. It does not surprise me really that the court found that the HOA could carry some responsibility to remedy a situation even if the Board was not found to be negligent making the management decisions. What I see as important distinctions between *Lamden v. La Jolla Clubdominium* and *Ritter v Churchill* are: safety issues , an identified fire danger issue , and nuisance in penetration of smoking odors , slab penetration filling originally required by city codes (even though overlooked by inspectors) , and , I believe the court took offense that the HOA relied too heavily on *Lamden* by seeking protection for their decision not to repair as opposed to how to repair. And last but not least , this decision is not too overly surprising given that the appeals court decision in Lamden (which was ultimately overturned the Supreme Court of California , but can be found in the case books) favored court scrutiny and consideration of a Board’s decision regarding maintenance to determine if it was reasonable. This case may or may not be appealed. One can certainly understand reluctance of any HOA to appeal such a decision given the reality of facing half a million in attorneys’ fees (meaning having to pay the other side’s attorney’s fees in addition to their own). Hindsight is clearer than foresight , of course , and this Board should not be condemned as it did what would be expected , i.e. , consulted with experts and listened to their advice. However , what can and should be taken away from this case decision , as it stands , is that there is likely a distinction between the way courts analyze decisions of corporate boards when health and safety of people are at stake. Another thing to take away is that wafting smoke can turn a molehill into a mountain , so do not take it lightly! My best to you! Beth *Help someone else: don’t forget to send this email to a friend or colleague using the Forward Email link at the bottom of this eNewsletter!* Beth A. Grimm is an attorney who serves homeowner associations and homeowners alike. She is a frequent contributor to the Echo Journal and other similar publications in the State of California and on a national level. She is provides several publications written in plain English to help people who information about California law as it relates to homeowner associations. She posts a wealth of information on her web site at californiacondoguru.com. Check out her new book called THE CONDO ANSWER BOOK. Copyright © 2008 Beth A. Grimm , All Rights Reserved BETH A GRIMM , P.L.C. (Attorney) 3478 Buskirk Ave. , Suite 1000 Pleasant Hill , CA 94523 Click to Email

Beth A. Grimm Attorney , is recognized by many as a leading homeowners association attorney and resource for information on legal and practical matters related to homeowners associations in California . Through her blog , written books and published materials she works to educate the masses , recognizing there is a serious shortage of available information in California on solving HOA problems and understanding the law that governs boards and members. You can visit her at http://www.californiacondoguru.com/. Beth has a private law practice in Pleasant Hill , but serves homeowners association and homeowners throughout the State of California . Her practice is largely web based and telephone consultations are available. The information provided here is for advertising and informational use only and does not constitute legal advice or create an attorney-client relationship. Visitors should consult with legal counsel in all cases where legal representation or advice is desired.

Other advantages of mediation include less hostility between parties, tailor-made results, and confidentiality.

Be sure to look for the upcoming article for more information on how mediation works, how it differs from arbitration, and when to avoid mediation.

The following article is provided courtesy of the law firm of Richardson & Harman, LLP

The following article is provided courtesy of the law firm of Epstein Grinnell & Howell 858-527-0111

         In determining whether conduct is negligent, "foreseeability" has become one of the most important factors to be considered. Foreseeability has two roles. First, was there an unreasonable risk of harm that would have been foreseen by a reasonable person? If the answer is yes, there then is a duty is created to protect against that risk. Second, if negligence has occurred, is the resulting harm or injury sufficiently foreseeable to impose liability on the negligent person or entity?
          One of my favorite examples of the foreseeability test is a case from law school. A boat or barge was improperly tied to a dock on a river. A storm occurred and the vessel broke lose, drifting down the river. Where the river narrowed it become stuck, and caused ajam as additional objects floating down river behind it also became stuck. This barrier became so dense the river slowly rose behind it, and eventually broke through barriers at the river's edge. The resulting flood damaged an owner's property, who then sued the owner of the vessel. The issue became whether the risk of harm (vessel breaking loose and causing river to overflow) and the resulting damage (flooding) were sufficiently "foreseeable" to impose liability on the vessel owner.

.In determining foreseeability one test is "sufficiently likely." This does not mean it is simply imaginable or conceivable. To some extent everything is foreseeable with a good imagination. Sufficiently likely must be in the legal sense, and that varies from case to case, judge to judge, and jury to jury. Unfortunately, two cases are rarely identical making it hard to find good "precedents" for whatever situation we are analyzing. We can, however, develop some general guidelines to help us decide the appropriate course of action.
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           An Association should always protect itself against foreseeable risks of harm, and foreseeable injuries. It is foreseeable someone could fall in an obscure hole in the common area, and break a leg. It is foreseeable someone could fall down slippery, unlit stairs at night and injure their back. It is foreseeable that a vicious dog that has attacked and bitten three residents will attack a fourth. These are all reasonably foreseeable events which risk harm to the members of the Association and their guests, and against which the community needs protection. In fact, it would likely be found to be a breach of a director's fiduciary d~ty llQ1 to procure insurance against such risks. When a Board discovers or is confronted with a\ risk it believes is foreseeable and creates a danger to the homeowners, it should satisfy itself that the risk is in fact covered under the Association's policies.

The one area of foreseeability that always creates a lot of concern is criminal conduct. When can an Association be liable for the criminal acts of third parties? The answer is when the criminal acts are "foreseeable", and the Association has failed to take any precautions to protect the residents. The issue of the "foreseeability" of criminal conduct was addressed in an appellate court decision involving a tenant residing in a four unit condominium in Pacific Beach. The tenant was assaulted in her unit by an individual gaining entry through a window. She sued both her landlord and the Association. The issue was the foreseeability of the criminal act.

The court noted that the focus should be on the specific facts of which a defendant (here, the Association) should be aware. General facts, like the fact Pacific Beach may be a high crime area are generally insufficient for a finding of foreseeability. After much analysis, the court stated that a "high degree of foreseeability" is required to find a duty on behalf of the Association to "harden" the premises so they are essentially entry proof. After noting the Association lacked knowledge of "prior similar incidents of violent crime on the landowner's premises", the court concluded the absence of knowledge of a likelihood of harm meant there was no duty on behalf of the Association to prevent the harm. The court affirmed a judgment in favor of the Association.

It is our goal to keep our clients and colleagues apprised of current developments in the law and relevant legal issues which impact community associations in California. We sincerely welcome your comments and suggestions for issues you would like us to address in the fixture.

The new Health and Safety Code section 26100 et. seq., a.k.a. the Toxic Mold Protection Act of 2001 will require the State to establish a task force to develop generally accepted standards and guidelines to assist landlords and associations in determining and discharging their legal duty for the identification and remediation of molds presenting a potential health hazard.

A progress report is due to the State by July 1,2003. If any guidelines are adopted from that report, they will become effective six (6) months from their adoption, and all residential landlords (e.g. association

Members that rent their condo or home) will be required to give written notice of mold that exceeds permissible exposure limits, if they know or have reasonable cause to believe that such mold exists in the home.

In the meantime, associations will want to get ready by reviewing their governing documents and defining the responsibilities of the association in dealing with mold. If the Association receives a claim from a member for mold remediation in their home, a mold expert (or a Certified Industrial Hygienist~ should be consulted to confirm the existence and the source of the mold, and to make recommendations for proper remediation of the mold. If the Board feels that litigation may result, general counsel should be involved in obtaining the expert opinion to ensure that the opinion is protected by the appropriate legal privileges.

Mold makes up about 25% of the Earth’s biomass, so mold exists everywhere in our environment. It’s when mold finds a hiding place and a source of food and water in our homes that it becomes a nuisance. Interior sources of mold can include plants, wicker baskets, pets, tubs/showers. Condensation on windowsills, clutter, and dust accumulation.

Mold needs carbon-containing material to grow, e.g. wood, paper, plastic, rubber, vinyl, fabric, dust. Plants, etc. Chronic moisture will cause mold growth on these materials. Sources of water to grow mold can include roofs, exterior wails, decks, windows, slabs, tub/shower enclosures.

toilets, washers, water heaters, sinks, potable water lines, drain lines, and H VA C condensate pans/lines.

1. Inspect the outside of the home for sprinklers and planters that may be allowing water into the home.

2. Check for leaks at all of the fixtures listed above and fix all leaks promptly.

3. Check cleanliness of drip pans regularly in the air conditioner, refrigerator and freezer.

4. Use exhaust fans in bathrooms and kitchens when excessive moisture is present.

9. Check the ventilation of the crawlspace (where there is one) to ensure good air flow.

MANAGERS ARE NOT DEBT COLLECTORS INVESTIGATION COSTS ARE RECOVERABLE AS DAMAGES

For those of you who may not be aware, those attorneys and other service providers that your associations retain to collect assessments must comply with the Fair Debt Collections Practices Act (the "Act") which is Federal law. Association Lien Services, a division of this law firm, goes to great lengths to ensure compliance with this Act. Not only do we provide an admonition (that we are collecting a debt) when phone calls are initiated through our offices, but all of our correspondence contains the legally mandated language advising delinquent homeowners of their rights, and we take very seriously any questions or complaints regarding the amount of the monies that are claimed to be due.

Collecting delinquent assessments, is not the role one would typically associate with a management company. On the other hand, we all know that management companies do perform some "collection" services on behalf of the associations before delinquent matters are turned over to professionals for collection. When providing those services, are the management companies then considered debt collectors under the Act? A Minnesota case heard in Federal court in that state answers this question. In that case the homeowner sued the management company for sending her a monthly statement on behalf of her association which included an accounting showing the outstanding balance, late charges and collection costs. She alleged that the management company had violated the Act because the monthly statement did not include a statement that she had thirty days to dispute and/or validate the debt, as required under the Act. She also claimed that the management company violated the Act because it did not disclose that it was attempting to collect a debt and that any information would be used for that purpose.

The United States District Court for the District of Minnesota confirmed what we all believed; that a management company is not a debt collector as defined by the Act and therefore could not be sued pursuant to the Act.

The court found that the management company did not qualify as a debt collector because its principle purpose was not the collection of debts, but the management of properties. The court also noted that the Act excludes from the definition of "debt collector" those who have the responsibility of collecting a debt prior to the time when it went into default. The Court concluded that the management company's regular collection responsibilities could not be classified "debt collection" under the Act.

While this decision is not binding on the courts of California, it is authority that can be cited and will assist all community association management companies confronted with this issue.

About the author: Adrienne L. Krikorian is an attorney and private mediator in Los Angeles, California. Ms. Krikorian is a trained mediator, and serves as a mediator for the Los Angeles Superior and Municipal Courts. She represents homeowners associations and small businesses in her private law practice. For more information, please call (818)347-6107.

After a tremendous amount of uncertainty regarding the FCC S position on allowable restraints on placement of satellite dishes in condominium and planned unit development associations, the FCC has finally made its enforcement position clear.

This article discusses the restrictions that condominium homeowner associations and planned unit development homeowner associations may place on installation of satellite dishes by their owners.

The FCC has taken away the rights granted to condominium homeowner associations by California Civil Code Section 1376 to forbid installation of satellite dishes visible from anywhere in the common area. Therefore, associations should no longer rely on this code section.

The FCC's regulations provide that associations are not allowed to require prior requests for installation approval from their association owners. The FCC insists that associations create a satellite dish installation policy, and only take action against owners who do not comply with such policy.

Owners are allowed to install satellite dishes of up to one meter (approximately 39") in size anywhere within their own units, as well as anywhere in their exclusive use common area patios or balconies, so long as they do not attach the satellite dishes physically to the common area (walls, roofs, etc.). Moreover, associations cannot forbid satellite dishes located within units or exclusive use common areas on the basis that such dishes are visible to other units or the common areas. However, associations are allowed to require some sort of camouflage of the dishes, but only insofar as the camouflaging does not unreasonably interfere with signal strength, or cost an unreasonable amount of money. We have been successful in requiring owners to camouflage satellite dishes placed upon patios and balconies with foliage, and the FCC has approved this sort of requirement.

In essence, associations must now decide in advance if and where satellite dishes may be placed in the common areas. Also, with regard to placement of satellite dishes within a unit or in a unit owner¹s exclusive use common area, associations must recognize that +&A~ owners have an absolute right to place satellite dishes in these areas so long as they do not attach satellite dishes physically to common area. Accordingly, the policies which associations must now create must address the issues of how the owners must camouflage their dishes from view in a manner that is not unreasonably expensive and does not unreasonably interfere with signal strength.

The rules for planned unit developments are similar to the rules for condominium associations insofar as owners of planned unit developments are allowed to install their satellite dishes anywhere on their own property, even if such dishes are visible to the common areas or other homes, so long as the installing owner complies with the association's satellite dish policy. However, as with condominium associations, it is incumbent upon associations to create a policy which sets forth guidelines for the owners to follow as to where they may install their satellite dishes on their properties. Please note that the guidelines may not result in an unreasonable increase of cost to the owner, or an unreasonable decrease in signal strength.

Therefore, for example, if the only workable location that a satellite dish may be placed is in the front yard visible to all owners, then the association must allow the owner to place it in the front yard. However, if equal signal strength can be obtained at the same approximate cost by placing the dish in the back yard, then the association¹5 policy may require back yard placement. Again, as with condominium associations, the association may require some form of camouflaging so long as the camouflaging does not unreasonably increase the cost or unreasonably decrease signal strength.

Associations must now create and publish policies, for all of their owners, delineating exactly what owners may and may not do with regard to installation of satellite dishes. Associations may no longer require prior approval for satellite dishes but may only take action against non-complying owners after the non-compliance exists.

Questions and Answers

Regarding Age Restricted Communities