Fire Damage Checklist

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The following is a basic checklist for associations faced with a fire damaged unit:

  • Immediately submit the claim to the association’s insurance carrier.
  • If you are aware of bodily injuries, notify the carrier of this fact too as experts may need to be retained.
  • Hire a contractor to board up the unit(s), if the insurance carrier has not already done so. Take any other action necessary to secure the area and to prevent people from entering the property which could cause further injury.
  • Shut off the utilities and inquire whether any further action needs to be taken with regard to power, water or gas. For instance, the electric company may need to remove the meters. Suggest any affected homeowners (and tenants, if any) to file claims on their personal insurance for moving expenses, personal property, etc.
  • Notify the local code enforcement officers. The City may need to condemn the building and post notice to restrict entrance. Be wary of unsolicited calls from public adjusters and contractors. Speak only with the insurance carrier’s adjuster and do not disclose information to unnecessary parties.
  • If the association has a preferred contractor, advise the insurance carrier that the association wants the contractor involved and would like it to bid the repairs, if possible.
  • Have all bids submitted both to the association and the insurance carrier. If the selected bid is not the lowest, try to get the insurance carrier’s concurrence and the contractor’s agreement to perform the work for the lowest price.
    The association should be the one to award the contract. If possible, control payments to coincide with payments from insurance carrier.
  • If a deductible is to be paid by the homeowner rather than the association, collect the deductible in advance, or have the contractor collect it directly from the homeowner. Often there are separate deductibles, one for the building and one for personal property (floor coverings, appliances, etc.).
  • If the claim covers personal items (floor coverings, etc.), ensure the contractor and homeowner are in direct contact with one another early on so that color and/or style selections can be made; some items may not be readily available and time will need to be allotted for delivery. Also, be sure homeowners are aware the association will not pay for any upgrades or extras that are not covered by the association’s insurance.
  • Some owners will want to take the insurance proceeds available for final interior decoration and use it to make changes or upgrades. In our experience, if they want to do this, this can complicate things, as the costs for their items can easily get mingled with the other costs, so that it is difficult to tell what expense belongs to whom. Discuss this early on with the insurance carrier and expect such requests. Also discuss it with the contractor before you sign the contract. Some owners will want to use the same contractor, and others will want to get their own contractor or vendor to do the work.
  • Decide how you want to handle this situation in advance so that if you allow it, neither the insurance carrier nor the association will be stuck with any extra costs. Also decide how those items will be split out from the contract and who will control the money to be used for the decor. If the association gets the money and has to parcel it out to the owners, count on disputes over how much is owed and under what circumstances it should be paid. Whether the association or the insurance carrier pays the money to the owner, it is not a good idea to pay anything until the materials are delivered and installed. It is also better to pay the money Ensure all monies are paid directly to the contractor, not the homeowner. If you give -money directly to the owner, the owner may take the money and not do the work.
  • If any fire or smoke-damaged materials or structures are to remain, i.e., not starting from a raw slab, be sure the contract includes a warranty for smoke-encapsulation as smoke odors may appear after reconstruction.
  • Execute a proof of claim only after all work has been completed and approved.

Individual circumstances, including the extent of the fire, may require additional or different actions. Please consult legal counsel.

Bidding Checklist

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In every bidding situation, consider the following issues:

  • Has the board defined its goals and objectives in this bid process?
  • Are there any bidding requirements in the Association’s governing documents that the board should follow (i.e., a requirement to obtain at least 3 bids)?
  • Will professional assistance be needed to draft the specifications for the job, and/or to evaluate the bids? Have complete plans and specifications been written to specifically define the scope of work to be performed?
  • Is the bid due date clearly stated? Have the bidders been given enough time to submit complete and accurate bids?
  • Should a pre-bid job walk be scheduled? Mandatory or optional?
  • Have interviews with the bidders been scheduled? What questions will be asked?
  • Who will check the bidder’s references and what questions will be asked of the references?
  • Who will check that the bidder has an active California Secretary of State registration?
  • Who will check the bidder’s Contractor’s State License Board profile for any prior complaints/violations? If there are any complaints/violations, does the bidder have a good explanation?
  • What special requirements does the association have? Are these listed in the bidder’s information materials?
  • Are bids to be submitted sealed or open?
  • Will unsuccessful bidders be told why they were not awarded the job?
  • Are the following forms included in the bid package? Invitation to Bid; Bid Form; Contractor’s Qualification Form; Designation of Subcontractors; Insurance and Licensing Information Form; Contractor’s Certification of Applicability of Specifications; Special Instructions; Contract Form.
  • Does the Contractor’s Qualification Form ask for all of the following? Form of company and company principals; years in business; number of employees; number of previous lawsuits/claims; references for similar jobs; bonding capacity/surety information; financial information; dollar volume of business in past year(s) and value of current work in progress.

Governor Signs AB 349 – Artificial Turf

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On September 4, 2015, the office of Governor Brown announced that the Governor signed Assembly Bill 349 by Assemblymember Lorena Gonzalez (D-San Diego) – Common interest developments: property use and maintenance.  This bill is urgency legislation, effective immediately.  Stay tuned for more information about the impact of this legislation and other new laws in the coming days and weeks.

Especially note the changes to Civil Code section 4735, below, in bold type.  The bill reads as follows:

SECTION 1.
The Legislature hereby finds and declares:
(a) With the lowest snowpack ever recorded, California finds itself in 2015 in the fourth year of a historic, prolonged, and potentially devastating drought.
(b) Governor Edmund G. Brown Jr. issued an Executive Order on April 1, 2015, which, for the first time in California history, directs the State Water Resources Control Board to implement mandatory water reductions across the state to reduce water usage by 25 percent.
(c) One component of the Governor’s Executive Order compels the replacement of 50 million square feet of lawns throughout the state with drought tolerant landscaping.
(d) Among a wide variety of drought tolerant landscaping are a variety of native plants and landscaping alternatives, including the installation of synthetic grass or artificial turf.
(e) According to the Department of Water Resources, landscape irrigation represents 43 percent of urban water use. The installation of artificial turf or synthetic grass, in lieu of conventional lawns and landscapes, can directly reduce outdoor water use to help meet the Governor’s mandated 25-percent statewide water use reduction.
(f) The vast majority of Californians may today elect to install artificial turf or synthetic grass in their single-family residential landscapes. Homeowners within common interest developments should also be afforded a similar opportunity within appropriate design, aesthetic, and drainage standards defined by their homeowners’ association.

SEC. 2.
Section 4735 of the Civil Code is amended to read:
4735.
(a) Notwithstanding any other law, a provision of the governing documents or architectural or landscaping guidelines or policies shall be void and unenforceable if it does any of the following:
(1) Prohibits, or includes conditions that have the effect of prohibiting, the use of low water-using plants as a group or as a replacement of existing turf.
(2) Prohibits, or includes conditions that have the effect of prohibiting, the use of artificial turf or any other synthetic surface that resembles grass.
(3) Has the effect of prohibiting or restricting compliance with either of the following:
(A) A water-efficient landscape ordinance adopted or in effect pursuant to subdivision (c) of Section 65595 of the Government Code.
(B) Any regulation or restriction on the use of water adopted pursuant to Section 353 or 375 of the Water Code.
(b) This section shall not prohibit an association from applying landscaping rules established in the governing documents, to the extent the rules fully conform with subdivision (a).
(c) Notwithstanding any other provision of this part, an association, except an association that uses recycled water, as defined in Section 13050 of the Water Code, for landscaping irrigation, 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 pursuant to subdivision (b) of Section 8558 of the Government Code.
(2) A local government has declared a local emergency due to drought pursuant to subdivision (c) of Section 8558 of the Government Code.
(d) An owner of a separate interest upon which water-efficient landscaping measures have been installed in response to a declaration of a state of emergency described in subdivision (c) shall not be required to reverse or remove the water-efficient landscaping measures upon the conclusion of the state of emergency.

SEC. 3.
This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
There have been numerous stories across the state regarding discrimination against homeowners by a homeowner’s association when the homeowners attempt to replace their water-intensive lawns with artificial grass. California is in the fourth year of a drought with no end in sight. Governor Brown has ordered a 25 percent statewide reduction in urban water consumption and ordered that Californians take out 50 million square feet of lawns to conserve water. Because residential landscaping accounts for 35 percent of urban water usage statewide, allowing homeowners the freedom to use conservation-friendly landscaping will be one important ingredient in reaching our mandatory water reduction goals as soon as possible.
Throughout California, homeowners are subject to stricter water conservation regulations. While in the middle of a water shortage crisis, homeowner associations are not allowing homeowners to make voluntary sacrifices by installing artificial grass, and are fining them if they are out of compliance. This act ensures that all homeowners have the right to better conserve water by voluntarily replacing grass with artificial grass. Property owners who pursue water conservation by installing artificial grass should be encouraged, not sued or fined. Thus, this act is necessary for the immediate preservation of the public peace, health, and safety.

Fair Housing: ADA or FHA? Why It Matters & What HOAs Need to Know to Address Disability Accommodation Claims

By: Mary M. Howell, Esq.

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Associations frequently must address claims for disability accommodation from owners, residents, their families and friends. While some aspects of the law have been “on the books” for more than 20 years, a surprising amount of misinformation still circulates. The questions usually arise from a misunderstanding of the two federal laws providing disability protections, the Federal Fair Housing Act of 1988 (“FHA”) and the Americans with Disabilities Act (“ADA”). This article discusses how the two laws interact, and what aspects of community association operation may be affected.

Which Law Applies?

ADA or FHA (or both)? Is an association covered by either, or both, of these federal disability protection acts? Usually the answer is “FHA, not ADA.” Both the FHA and the ADA require the objects of those statutes to provide “reasonable accommodations” to the disabled. However, there are significant differences in how they deal with the issue, including who must pay the cost of an accommodation.

The ADA applies only to a “public accommodation;” that is, a certain type of business or facility, which is open to the public. To be subject to the ADA, the facility must both be of a category listed in the ADA and open to the public.

There are 12 categories of business or facility covered by the ADA, and if the business/facility is not within those categories, the ADA does not apply to that facility or business. Many of the listed facilities are commonly found in homeowners associations, e.g., an establishment serving food or drink, a stadium “or other place of entertainment,” an auditorium “or other place of public gathering,” a library or “place of recreation,” a “senior citizen center,” a gymnasium, golf course, “or other place of exercise or recreation.” However, in the vast majority of cases, those facilities, when located within an association, are not open to the public. Thus, the ADA most often does not apply (although the FHA does).

Case Law – Public Accommodations

In Carolyn v. Orange Park Community Ass’n. (2009) 177 Cal.App.4th 1090, a portion of a county-wide bridle trail was both open to the public and located on association common area. When a disabled person sought access to the trails by means of a reasonable accommodation under the ADA, the court rejected the notion that the trail system was “public.” In so doing, it focused on several factors:

“We agree with the premise that recreational common areas within common interest developments can be classified as public accommodations in appropriate circumstances. But we think it clear OPCA’s trails would not be a public accommodation if OPCA actively excluded the general public from using the trails. Moreover, we do not think OPCA’s private trails transform into public accommodations merely because OPCA does not actively exclude members of the public from using the trails. …

Each of the examples listed in the ADA and the Health and Safety Code illustrates the broader concept that places of public accommodation are places designed and intended to provide services, goods, privileges, and advantages to members of the public, usually in exchange for payment (and when not requiring payment, often motivated by some other advantage to the entity providing the accommodation, such as promoting its good will to the community).” [Emphasis added]

The court noted that the trails had been built for the use of association members, there was no evidence the association encouraged public use of the trails, and the association charged no fee for use by the public. The court therefore concluded that the trails were not a “public” accommodation.2

Suppose the association does solicit members of the public, and charge them, for the use of the common area facilities—what does that mean in terms of the ADA? If the association opens its facilities to the public, and those facilities fall into one of the 12 categories set out in the ADA, the association runs the risk that the portion of the facility open to the public may be held to be subject to the ADA. If the association charges for that use, the risk increases. If the use is sufficiently “public,” then the association would be required to comply with the ADA.

Barrier Removal & Reasonable Accommodations

ADA compliance usually concerns one of two issues: removal of barriers where “readily achievable” and “accommodations” involving provision of services. In both cases, the cost of such compliance under the ADA is borne by the “public accommodation” (in our case, the association) and not by the disabled person.

Whether a proposed barrier removal is “readily achievable” changes from case to case. The Act says barrier removal is “readily achievable” where it is “easily accomplishable and can be carried out without much difficulty or expense.” In addition to the cost of the project, a court may also consider factors such as zoning implications, whether the building is an historical landmark, and the financial ability of the entity to remove the barriers. Examples of “barrier removal” which are generally considered “readily achievable” include installing ramps, making curb cuts, rearranging tables and chairs, widening doors, installing grab bars in toilets, and reworking toilets and lavatories for wheelchair access.

If the association isn’t subject to the ADA, can it refuse to pay for a requested alteration? Yes. If an association is subject only to the FHA, a homeowner can request permission to make changes to the common area, and to his own unit, but the cost of such alterations is borne by the homeowner, not the association.3 However, per HUD (the federal agency charged with enforcing the FHA), the association may not demand as a condition of approval for the alteration that the homeowner pay for special insurance or use particular contractors.

Suppose the request comes from a tenant rather than an owner—is the association still required to permit the alteration? Yes. Even though the tenant may not be expected to reside in the community indefinitely, the association must still allow the accommodation, whether pursuant to the FHA or the ADA. Further, if the alteration is to common areas, HUD takes the position that the FHA does not allow the association to condition approval of the alteration on its removal when the tenant moves out.

If the association doesn’t believe an applicant is disabled, can it request proof? If the disability and the need for the requested accommodation is obvious, no. But if there’s nothing obvious about the connection between a claimed disability and the requested accommodation or modification, then the association may ask for evidence to support the request.

Is the association required to grant every request? No. The association may suggest other accommodations if the requested one is somehow objectionable (e.g., unsafe, not necessary to afford the applicant an equal opportunity to use and enjoy the premises, application not disabled). But, if the matter cannot be resolved by negotiation, the association should be very wary of rejecting an application without thorough investigation and consideration of the request. Consulting with counsel is strongly suggested, as most D&O insurance policies contain exclusions for damages arising from fair housing claims.

We keep getting threatening letters from a “fair housing council.” What’s that? A number of private, nonprofit entities, generally self-labeled as “fair housing councils,” have been established to serve as unofficial “watchdogs” for FHA compliance. Usually they provide free legal advice to disabled applicants, and attempt to resolve any conflicts before a claim is filed with HUD (or DFEH, the state equivalent of HUD), or an action is filed in court.

Additional Resources

Readers are encouraged to read two summaries of frequently asked questions about the FHA which can be found on the internet: the “Joint Statement of HUD and DOJ on Reasonable Accommodations under the FHA” [http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf] and the “Joint Statement of HUD and DOJ on Reasonable Modifications under the FHA” [http://www.justice.gov/crt/about/hce/documents/reasonable_modifications_mar08.pdf].

1  The author wishes to acknowledge that the original version of this article was published in Connect magazine, a publication of the Community Associations Institute – Greater Inland Empire chapter, 2010, issue 3.
2  In the Carolyn case, the court also quoted from a 1992 HUD letter ruling which held that an association’s clubhouse was not a “public accommodation” if the use of the clubhouse was restricted to the use of residents and their guests.
3  There is a minor exception to this statement. If the developer failed to comply with the disability access guidelines which were in effect at the tine of construction, a homeowner can demand the association reconstruct for compliance, at the association’s cost.

Civil Code §4775. General Maintenance Obligations

California Civil Code  >   Part 5. Common Interest Developments (Davis-Stirling Common Interest Development Act)  >  Chapter 5. Property Use and Maintenance  > Article 3. Maintenance  >  Civil Code §4775. General Maintenance Obligations

(a)     (1) Except as provided in paragraph (3), unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.

(2) Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for repairing, replacing, and maintaining that separate interest.

(3) Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area.

(b) The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.

(c) This section shall become operative on January 1, 2017. [2017]

Civil Code §4750. Use of Yards for Personal Agriculture

California Civil Code  >   Part 5. Common Interest Developments (Davis-Stirling Common Interest Development Act)  >  Chapter 5. Property Use and Maintenance  > Article 1. Protected Uses  >  Civil Code §4750. Use of Yards for Personal Agriculture

(a) For the purposes of this section, “personal agriculture” has the same definition as in Section 1940.10.
(b) Any provision of a governing document, as defined in Section 4150, shall be void and unenforceable if it effectively prohibits or unreasonably restricts the use of a homeowner’s backyard for personal agriculture.
(c) (1) This section does not apply to provisions that impose reasonable restrictions on the use of a homeowner’s yard for personal agriculture.
(2) For purposes of this section, “reasonable restrictions” are restrictions that do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.
(d) This section applies only to yards that are designated for the exclusive use of the homeowner.
(e) This section shall not prohibit a homeowners’ association from applying rules and regulations requiring that dead plant material and weeds, with the exception of straw, mulch, compost, and other organic materials intended to encourage vegetation and retention of moisture in the soil, are regularly cleared from the backyard. [2014]

EG&H Welcomes Tiffany Christian, Director of Marketing

Epsten Grinnell & Howell, APC is pleased to welcome Tiffany Christian to its team as Director of Marketing. With a degree in Business Marketing and 15 years’ experience Tiffany has a diverse background in marketing with nearly four years’ experience in the community association industry. Based in our San Diego office, Tiffany will be responsible for the firm’s marketing, communications, events and client relations throughout San Diego and the Greater Inland Empire. Tiffany will be working directly with all members of our firm, including Louise Stettler who will continue as Business Development Director working primarily out of our Coachella Valley office.

Billing Disclosures: Update to Form Effective January 1, 2015

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Civil Code section 4528 shows how documents provided as required by section 4530 must be broken down into an a la carte menu of items to be produced.  The following version of Civil Code section 4528 will be effective as of January 1, 2015.  For your reference, the changes from the 2014 version of the section are indicated in bold underlined italics.  The primary effect of the change is to add a new column for the a la carte charges and a total at the end.

Note that the statute has only one row each for Articles of Incorporation, Bylaws, CC&Rs, Operating Rules, etc.  Many community associations may have not only original CC&Rs, Bylaws, etc., but also amendments to these documents. Since an owner must provide what documents he or she has, and the owner may not have a complete set of documents, consider adding the recording date and document number to CC&Rs, a separate line for each amendment, the date (or at least the year) when Bylaw amendments were enacted, and the same for amendments to Articles of Incorporation and various sets of rules (including Architectural Guidelines), also with effective dates. In this way, owners, buyers and Realtors will know what documents they have and which they need.  Furthermore, each document needs to have an itemized charge for producing the copy.

The following version of the Civil Code section 4528 billing disclosure form need not be used for any disclosure that must be sent to owners before January 1, 2015; however, the new form must be used for fulfillment of any document requests on or after that date.

*******

Civil Code section 4528: Form for Billing Disclosures

The form for billing disclosures required by Section 4530 shall be in at least 10-point type and substantially the following form:

 CHARGES FOR DOCUMENTS PROVIDED AS REQUIRED BY SECTION 4525*

Property Address
Owner of Property
Owner’s Mailing Address (If known or different from property address.)
Provider of the Section 4525 Items:
Print Name _________ Position or Title _________ Association or Agent
Date Form Completed

Check or Complete Applicable Column or Columns Below

Document Civil Code Section Included Fee for Document Not Available (N/A), Not Applicable (N/App), or Directly Provided by Seller and confirmed in writing by Seller as a current document (DP)
Articles of Incorporation or statement that not incorporated Section 4525(a)(1)
CC&Rs Section 4525(a)(1)
Bylaws Section 4525(a)(1)
Operating Rules Section 4525(a)(1)
Age restrictions, if any Section 4525(a)(2)
Rental restrictions, if any Section 4525(a)(9)
Annual budget report or summary, including reserve study Sections 5300 and 4525(a)(3)
Assessment and reserve funding disclosure summary Sections 5300 and 4525(a)(4)
Financial statement review Sections 5305 and 4525(a)(3)
Assessment enforcement policy Sections 5310 and 4525(a)(4)
Insurance summary Sections 5300 and 4525(a)(3)
Regular assessment Section 4525(a)(4)
Special assessment Section 4525(a)(4)
Emergency assessment Section 4525(a)(4)
Other unpaid obligations of seller Sections 5675 and 4525(a)(4)
Approved changes to assessments Sections 5300 and 4525(a)(4), (8)
Settlement notice regarding common area defects Sections 4525(a)(6), (7), and 6100
Preliminary list of defects Sections 4525(a)(6), 6000, and 6100
Notice(s) of violation Sections 5855 and 4525(a)(5)
Required statement of fees Section 4525
Minutes of regular board meetings conducted over the previous 12 months, if requested Section 4525(a)(10)
Total fees for these documents:
* The information provided by this form may not include all fees that may be imposed before the close of escrow. Additional fees that are not related to the requirements of Section 4525 shall be charged separately.

Note: The borders shown in this table do not appear in the statute, but we have added them to make the section easier to read and the form easier to complete.

 

IDR: Changes to Statutory Default Procedure

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In the October 2014 issue of our E-NEWS from EG&H newsletter, we described changes to the informal dispute resolution statutes in the Davis-Stirling Act. We also provided educational practice tips for a community association to adopt its own IDR procedure. However, many associations rely upon the default IDR procedure of Civil Code section 5915. For your reference, following is the new wording of the default IDR procedure, effective on January 1, 2015. Community associations that rely on the default procedure may include it in annual policy statements distributed now, but must use it for annual policy statements delivered on or after January 1, 2015.

§5915.  Default IDR Procedure (As Amended, Effective January 1, 2015)

(a)   This section applies to an association that does not otherwise provide a fair, reasonable, and expeditious dispute resolution procedure. The procedure provided in this section is fair, reasonable, and expeditious, within the meaning of this article.

(b)  Either party to a dispute within the scope of this article may invoke the following procedure:

(1)   The party may request the other party to meet and confer in an effort to resolve the dispute. The request shall be in writing.

(2)   A member of an association may refuse a request to meet and confer. The association may not refuse a request to meet and confer.

(3)   The board shall designate a director to meet and confer.

(4)   The parties shall meet promptly at a mutually convenient time and place, explain their positions to each other, and confer in good faith in an effort to resolve the dispute. The parties may be assisted by an attorney or another person at their own cost when conferring.

(5)   A resolution of the dispute agreed to by the parties shall be memorialized in writing and signed by the parties, including the board designee on behalf of the association.

(c)   A written agreement reached under this section binds the parties and is judicially enforceable if it is signed by both parties and both of the following conditions are satisfied:

(1)   The agreement is not in conflict with law or the governing documents of the common interest development or association.

(2)   The agreement is either consistent with the authority granted by the board to its designee or the agreement is ratified by the board.

(d)   A member shall not be charged a fee to participate in the process.