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AB 130 Effective Immediately: Association Fines Capped at $100

Jacquelyn E. Quinn, Esq.

Senior Attorney

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Practices: Community Association Counsel | Commercial CID

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California Assembly Bill 130, enacted on June 30, 2025, was revised at the very last minute this week to include amendments to Civil Code Sections 714.3, 5850 and 5855, which address association fines and enforcement procedures. The changes were added just days before the bill was signed into law without any committee hearings or opportunity for feedback. Leaving those most impacted by it, associations, with bad law and more questions than answers.

Most notably, AB 130 caps fines for many governing document violations at $100 per violation. The major takeaways regarding changes to permissible fines include:

      • Fines for violations are now capped at $100 per violation or a lesser amount adopted by fine schedule. As of June 30, 2025, associations are prohibited from imposing fines over $100 unless the exception discussed below applies.
      • The exception to the $100 fine cap is for violations that may result in an adverse health or safety impact on the common area or another association member’s property. To invoke this exception, a board must make a written finding at an open board meeting specifying the adverse health or safety impact of such violation. One way a board may satisfy this requirement is by making a finding in an open meeting a specific violation is adverse to health or safety on a violation by violation basis. Alternatively, an association could amend its rules to provide a general category of violations are adverse to health or safety (i.e., speeding, glass at the pool, off leash dogs in common areas) and therefore, subject to fines in excess of $100 without having to re-vote on the same violations over and over again.
      • Board shall not impose discipline on a member when the member cures the violation prior to the hearing and, in situations where curing the violation would take longer than the notice period before the hearing, when the member provides “financial commitment” to cure the violation. AB 130 does not define or provide an example of what a “financial commitment” is, but one option may be to impose a fine and hold it in abeyance subject to the member curing the violation by a reasonable deadline.
      • No late charges or interest may be charged for a fine.
      • Fines Imposed Prior to June 30, 2025, are not impacted. While AB 130 alters how associations may impose fines going forward, it does not invalidate previously imposed fines.

The new language of the statute also modifies part of the enforcement process, including:

      • If the board and owner are not in agreement following a hearing, the owner may request IDR. This is not a change to current law since an owner could always request IDR regarding an association dispute.
      • If the board and owner reach an agreement after the hearing, the board must prepare a written resolution to be signed by the board and the owner. The resolution will be judicially enforceable.
      • Written notice of a Board’s decision to impose disciplinary action is now due within 14 days of the hearing. Previously, notice within 15 days was required.

In summary, associations must immediately comply with AB 130, including generally no longer imposing fines in amounts more than $100 after June 30, 2025, unless a written finding is made by the Board at an open meeting the violation will have an adverse health or safety impact. AB 130 also does not necessarily require an association to suspend any enforcement actions until it amends its rules or fine policy, but boards will need to review and revise these policies to bring them into compliance with AB 130 before they are distributed with their annual policy statement. Associations should consult with their community association legal counsel regarding how to best integrate and comply with the new requirements of AB 130 for their specific community.

What do we do when Immigration and Customs Enforcement (ICE) is at the door?

Morad Fakhimi, Esq.

Of Counsel

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Practice: Community Association Counsel

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Immigration enforcement operations in the common interest development context can give rise to certain liability issues of which community associations should be aware. Situations may arise where community associations and association managers would need to grapple with questions about the rights and obligations of all involved when it comes to requests by ICE for homeowners’ documents or information, and requests or demands by ICE to enter and search non-public areas belonging to an association.

As a starting point, it should be noted that there is no general legal obligation in the United States to provide information to law enforcement officers. The Fourth Amendment protects the people from unreasonable searches and seizures, and requires government agents to secure judicial permission, in the form of a warrant, before conducting searches and seizures. Initially, it is important to distinguish between the two types of warrants that may be presented in this context. ICE is empowered to issue its own “administrative” arrest warrants for individuals facing deportation. Administrative warrants, however, do not authorize agents to enter onto and search private property. On the other hand, a search warrant, signed by a judge, does authorize agents to enter and search private property and to seize the types of evidence described in the warrant. In any event, because the Fourth Amendment only protects against unreasonable searches and seizures, the United States Supreme Court has recognized several exceptions to the warrant requirement. For present purposes, only three of those exceptions have any relevance: (1) the exigent circumstances doctrine, (2) consent searches, and (3) the plain view doctrine.

As to consent searches, if ICE agents contact an association manager or a community association and request homeowner or resident records or information, or if they ask for permission to enter non-pubic areas of a community, there are two legally available options. The first option is to consent. An association manager or an association representative can, of course, simply consent and voluntarily hand over documents or information, or open the gates and invite the agents onto the non-public parts of the property to conduct their investigation or enforcement operations. Having consented, the association could not later claim that it was the victim of an unreasonable search or seizure. The second option is to withhold consent and to inform the officers that a judicial search warrant is necessary. The second option is, by far, the better approach to protecting the interests of the association because: (1) as mentioned, there is no general obligation to give law enforcement any information, or to allow access to non-public areas absent a judicial search warrant, subpoena, or other court order to do so, and (2) voluntarily handing over homeowner documents and information, or permitting agents to enter non-public areas could needlessly expose the association to potential liability. 

Suing the federal government involves several complications (i.e., the sovereign immunity doctrine, and the requirements and exceptions of the Federal Tort Claims Act). Because it is possible that a homeowner or resident, or their property, may be injured or damaged as a result of the voluntary information disclosure or the consent to law enforcement’s entry into the non-public areas of the association, an unfortunate situation may arise due to the fact that it is also possible under a variety of circumstances that the government would be shielded from liability (which would be the case if the liability were be based on discretionary government functions, or intentional torts such as wrongful arrest, malicious prosecution, libel, assault, or battery). This would leave the association as the most readily accessible party to be sued. Thus, when asked to consent to searches of non-public areas, or to voluntarily hand over association documents or records, the safest course of action for the association is to politely decline and to state that such disclosures or searches of non-public areas require a judicial search warrant, subpoena, or other court order. 

The United States Supreme Court has also recognized that certain exigent circumstances could render an otherwise unreasonable warrantless search or seizure reasonable under the circumstances. That is, if an agent or officer were to make forcible entry onto private property to search for and seize documents or evidence (or persons), that doing so could be justified by certain types of emergencies (such as threats to life and limb, or the risk of evidence being destroyed). The Supreme Court has also recognized a “plain view” exception to the warrant requirement that might justify forcible entry onto private property to search for and seize evidence if the evidence (and its contraband nature) were plainly visible from an outside vantage point. The upshot of the both the exigent circumstances and plain view doctrines, for present purposes, is that if ICE agents (or any law enforcement officers) seem intent making a warrantless forcible entry into non-public areas, and/or seizing association documents or records, it is important to stand aside and avoid even the perception of actively blocking, obstructing, or impeding them because doing so would subject someone to criminal charges. While withholding consent is a constitutional right – actively obstructing, impeding, or interfering with the activities of law enforcement is a criminal offense. 

If you have any questions, or need advice, regarding ICE searches or requests for homeowner records or documents, please reach out to your association’s legal counsel. 

Architectural Reviews and Approvals in Rebuilding

Karyn A. Larko, Esq.

Senior Attorney 

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Practices: Community Association Counsel 

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Considerations For Associations Dealing With Destruction Caused by Natural Disasters

*Article originally published in CACM The Law Journal, Summer 2025

California has been hit by wildfires and other natural disasters in recent years. In the aftermath of such disasters, associations and their members may be faced with having to reconstruct their communities. Some of the issues association boards and managers should consider when homes and condominiums (“Dwellings”) must be reconstructed are addressed below.

FACILITATING RECONSTRUCTION

The reconstruction process can take years to complete. By acting now to ensure the original construction plans are kept in a safe place, if there is a disaster, the association can compare owner submitted plans for reconstruction with the original construction plans, and more quickly identify and evaluate any differences that will impact the appearance of the new dwellings. A licensed architect should be retained to perform this comparison and assist the board or architectural committee (“AC”) in evaluating differences.

The board should also adopt clear and detailed guidelines with the help of an architect, addressing the information and documentation needed to review owner reconstruction applications. These guidelines, which can be adopted through the rule adoption procedures in Civil Code § 4360 (or as emergency rules, if necessary), should address whether any changes in the dimensions or locations of the reconstructed dwellings will be considered, as well as whether any other modifications will be considered or required. Providing this information up front can save owners time and money in planning for their reconstruction, reduce owner frustration and expedite the reconstruction.

Because building code requirements may have changed since the initial construction of the dwellings, the board or AC should work with an architect or general contractor to identify any such changes that will impact the appearance of the reconstructed dwellings, preferably before applications to reconstruct are submitted. This will further facilitate the application review process.

REQUESTS TO CHANGE DIMENSIONS OR LOCATIONS OF RECONSTRUCTED DWELLINGS

While the association is generally responsible for the reconstruction of the buildings in a condominium complex, there are instances where condominiums are built as single family detached dwellings or duplexes, for example, and the CC&Rs assign responsibility for reconstruction to the owners. In such instances, it is generally not possible for the board or AC to approve changes to the dimensions or locations of units and buildings because the dimensions and locations of the units and buildings are dictated by the condominium plan. To approve such changes, the condominium plan must be amended.

When it comes to planned developments, the board or AC may generally approve alterations to reconstructed dwellings, subject to any size, set back or other construction requirements and restrictions contained in the CC&Rs and rules. It may be possible for a board to grant variances to requirements set forth in the CC&Rs, if appropriate, depending on the precise wording of the CC&Rs. Upon a vote of the members, it may also be possible to amend the CC&Rs to revise these requirements as the board deems appropriate.

In the event construction requirements and restrictions are contained solely in the rules, the board or, in some instances, the AC, may amend the rules.

REQUESTS FOR OTHER CHANGES TO RECONSTRUCTED DWELLINGS

For aspects of construction which may not be specified in the CC&Rs (e.g., color schemes, exterior finishes), an association can be more flexible in approving modifications to the originally constructed dwellings. However, as quickly as feasible, the board or AC should meet with an architect to determine what kinds of changes should and should not be permitted to ensure the reconstructed dwellings are in harmony with any surviving structures. If necessary to expedite approvals to avoid risk of substantial economic loss to the association, these changes can be adopted as emergency rules pursuant to Civil Code § 4360(d) so owners have this information when planning their reconstruction.

A board may also want to consider amending the CC&Rs or rules to allow or require nonflammable roofs, fire-resistant landscaping or other changes, to better protect the community from future disasters.

TIME LIMITS FOR RECONSTRUCTION

The governing documents may impose time limits on when owners must start and complete their reconstruction. It is important for the board to promptly review any time limits and evaluate whether these limits are reasonable given the extent of the damage to the community and surrounding area, as well as related environmental challenges (e.g. issues related to the removal and disposal of construction debris), the availability of architects and contractors to prepare plans and perform reconstruction, possible permitting and inspection delays, materials shortages and delays in the processing of insurance claims.

If the governing documents mandate a shorter reconstruction timeline than is reasonable under the circumstances, the board should amend the timeline. If the governing documents do not impose time limits on reconstruction, the board may want to amend the governing documents to include a reasonable time limit to help ensure owners diligently pursue the reconstruction of their dwellings.

On a related note, if the governing documents do not impose a reasonable deadline for clearing properties within the community of any construction rubble and other debris, the governing documents should be amended, or an emergency rule adopted, to impose a deadline since the existence of these materials may pose a health and safety hazard for the community. Additionally, it may take years for owners to rebuild and some owners may not be able to rebuild. Removing the rubble and debris will help improve the appearance of the community until the community can be fully reconstructed.

THE USE OF CONSTRUCTION TRAILERS, PORTA-POTTIES, LIVE-IN TRAILERS, RVS, ETC. DURING RECONSTRUCTION

If the governing documents prohibit construction trailers, RVs or porta-potties, the board should consider amending the governing documents, or granting variances, if permitted by the governing documents, to temporarily lift this prohibition in the event of significant destruction. The amendment can and should limit the use of these items to specified periods of time and purposes, such as for construction supervision and meetings.

COMMUNICATIONS

Communicating with displaced owners can be especially challenging. Providing the CC&Rs, architectural/construction rules and the architectural application form on the association’s website and proactively requesting updated contact information can help facilitate the reconstruction process and enable the association to timely address any reconstruction issues.

PRACTICE TIPS

          • Many CC&Rs contain an article that expressly addresses destruction of the community. Reviewing and, if appropriate, amending this article to address reconstruction issues more fully before a disaster occurs could help accelerate the reconstruction process.
          • Proactively establishing an easy process for owners to submit updated contact information to the management company, such as through a website or portal, and periodically notifying owners of this process can help to re-establish communications with owners after a disaster.

Tragedy as a Turning Point

Pejman D. Kharrazian, Esq.

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Practices: Community Association Counsel | Commercial CID | Civil Litigation

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How Recent Tragedies are Reshaping the Standard of Care for
California Community Associations and Impacting the Future

*Article originally published in CACM The Law Journal, Summer 2025

This article explores three significant and unfortunate events that are having a lasting impact on California community associations — (1) The 2015 Berkeley, California balcony collapse; (2) the 2021 condominium building collapse in Surfside, Florida and (3) the skyrocketing cost of property insurance in large part due to recent California wildfires. This article also discusses ways to proactively plan for the outcomes stemming from these events. It is crucial for board members and community managers to understand how these developments impact their communities.

The Berkeley Balcony Collapse and the “Balcony Bill”: A New Era of Exterior Elevated Element Inspections

In 2015, six young people tragically lost their lives when a balcony collapsed in Berkeley, California. The aftermath revealed severe dry rot that had compromised the balcony’s structural integrity. The Berkley balcony incident led directly to the California legislature enacting the “Balcony Bill”1 that mandates regular inspections of wooden Exterior Elevated Elements (EEEs) in multifamily buildings with three or more units. The Balcony Bill was codified as Civil Code § 5551.2

As a result, community associations in California are now required to conduct visual inspections of EEEs — including balconies, decks, stairways and walkways — at least every nine years by a licensed structural engineer or architect. The first deadline for compliance was January 1, 2025, and many associations are still scrambling to meet the legal requirements and determine how to fund necessary repairs identified during inspections.

The Balcony Bill mandates proactive compliance. Failure to inspect and maintain EEE’s could expose an association to significant liability, including personal injury claims and fines. Boards should consult with professionals, such as legal counsel and reserve analysts, to review the association’s governing documents and reserve studies to ensure that adequate funding is available for inspections and repairs.

The Surfside Condominium Collapse: A Wake-Up Call on Reserve Funding and Deferred Maintenance

In June 2021, the Champlain Towers South condominium in Surfside, Florida partially collapsed, killing 98 people and drawing national attention to the importance of building maintenance, reserve funding and structural oversight. The lessons from Surfside resonate throughout the country, including here in California.

Following the tragedy, many states began reevaluating how community associations manage reserve funds and capital repair planning. There is growing momentum toward stricter enforcement of reserve study requirements, and it would not be surprising if the California legislature introduced minimum reserve fund requirements in the future. Boards, working with consultants, must now take a harder look at deferred maintenance and determine whether they are meeting their fiduciary duties to maintain the common areas in a safe and habitable condition.

Lenders and insurers are also becoming more cautious about deferred maintenance. Fannie Mae and Freddie Mac have issued updated lender guidance requiring more information on building conditions and deferred maintenance. For community associations, this translates into increased scrutiny during real estate transactions and the potential for financing delays if documentation is not up to date.

Wildfires and the Soaring Cost of Property Insurance

Wildfires have become a constant threat in many parts of California, and the insurance market has responded accordingly. Community associations across the state — particularly those located in or near designated fire risk zones — are experiencing dramatic increases in property insurance premiums. Some associations cannot obtain insurance coverage at all.

In some cases, insurance premiums have doubled or tripled. In other cases, insurance carriers have completely withdrawn from the market, forcing communities to seek coverage through the excess and surplus lines market, which often offers reduced coverage at a higher cost.

Rising insurance costs put enormous strain on association budgets and raise important questions about adequate reserve funding, regular assessment increases and special assessments. Boards must navigate insurance issues carefully, ensuring transparent communication with members and obtain expert advice on risk management.

Some associations are exploring self-insurance, risk pooling or higher deductibles to manage costs. Insurance, reserve and legal professionals should be involved in evaluating options to ensure compliance with governing documents and statutory requirements. In some cases, a community association’s governing documents may need to be amended to accommodate necessary changes to insurance coverage.

Moreover, the sheer volume of wildfires, including the massive fallout from the 2025 Los Angeles wildfires suggests that building material costs will also rise as communities strive to rebuild.

Conclusion: A Call for Proactive Governance and Consulting with Professionals

These three major events — a balcony failure, a condominium collapse, and persistent wildfire risk — underscore a shared lesson: reactive governance not sufficient. California community associations must adopt a proactive and informed approach to building safety, financial planning, and risk management.

What are some specific steps you can take now?

          • Schedule required Exterior Elevated Elements (EEE) inspections in compliance with Civil Code § 5551;
          • Consult with your reserve analyst and spend more time and effort to help prepare a more detailed and accurate reserve study and reserve funding plan;
          • Engage insurance professionals early in the budgeting process and schedule an annual meeting to review insurance coverage with your insurance agent or broker;
          • Communicate openly with members about risks, funding needs and legal obligations;
          • Consider levying regular, special, or emergency assessments where necessary to defray costs and plan for the future financial needs of your association; and
          • Update maintenance policies to reflect current best practices. In this evolving landscape, community association boards that proactively prioritize diligence and professional guidance will be better positioned to protect their communities and fulfill their fiduciary duties.

In this evolving landscape, community association boards that proactively prioritize diligence and professional guidance will be better positioned to protect their communities and fulfill their fiduciary duties.

[1] California Senate Bill No. 326
[2] Civil Code § 5551 is part of the Davis-Stirling Common Interest Development Act

Solving Problems Early: Preventing Lawsuits While Building Community – Handling Homeowner Conflicts Without Lawsuits

Joseph A. Sammartino, Esq.

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Practices: Community Association Counsel | Construction Defect Litigation | Civil Litigation | Appellate Litigation

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Community associations often deal with upset homeowners. Sometimes the issues are small, like a neighbor’s barking dog. Other times, the problems are bigger, like unpaid assessments or rule violations. No matter the situation, if it is not handled well, it can quickly escalate and get worse—and even lead to a lawsuit, which will likely be expensive, as well as unnecessary, for everyone involved.
 
The good news is that there are tools that help calm people down and solve problems before they go too far. Bill Eddy, co-founder of the High Conflict Institute, has developed two simple methods that can help tremendously: BIFF and EAR. These tools are easy to learn and use, and they work well for both board members and managers who want to handle conflicts with homeowners in a respectful and effective way. This article explains how to reduce anger and de-escalate conflicts with homeowners with the ultimate goal of avoiding a lawsuit.
 
Clear and Respectful Communications to Calm Conflicts – BIFF and EAR
 
BIFF stands for Brief, Informative, Friendly, and Firm. It is a method for responding to upset or angry (i.e., high conflict) emails, letters, or conversations that keeps the conflict from growing. When someone is angry, it is very easy to get pulled into an argument. But a BIFF response avoids that.
 
A brief response gets straight to the point. Long replies often include unnecessary details that can trigger more arguments. A BIFF response keeps things short and simple, which helps calm the situation. Informative means sharing useful facts, not opinions or emotions. Instead of defending yourself or the association or blaming the other person, try explaining the relevant rules or what the association is doing about the issue. This approach should help the homeowner focus on the facts instead of their frustration. Friendly means using a respectful and kind tone, even if the other person is upset. A calm, polite tone shows that you are not there to fight; it builds trust and makes it easier to work to solve the problem. Firm means setting clear boundaries. You don’t need to argue or give in—you just need to clearly state the decision or next steps, without sounding angry. Firm doesn’t mean harsh. It means confident and steady.
 
EAR stands for Empathy, Attention, and Respect. It is a way to talk to people when they are upset – about anything. People in conflict often want most to feel heard and understood. EAR helps you do that without agreeing with everything they say.
 
Empathy means showing that you understand the person’s feelings. You do not have to agree with their complaint to show empathy. Simply saying, “I hear what you’re saying” and “I can see why you’re upset,” or “That does sound frustrating,” is a great start to the conversation. Attention means giving the person your full focus—listening without interrupting or getting defensive. Just listening calmly often helps people calm down on their own. When someone feels as if no one is listening, they often get louder and more upset. Respect means treating the other person with dignity, even if/when they are being rude. General rules of manners and politeness can go a long way. Saying “Thank you for sharing your concerns” or “I respect your point of view,” can show you care about the person, even when you disagree with what they are saying.
 
Using EAR often makes people feel safe enough to talk instead of argue and fight. It builds trust and shows that the association wants to solve problems, not just enforce rules.
 
Solving Problems Early: Preventing Lawsuits and Building Community
 
The earlier a problem is addressed, the easier it will be to solve. Small issues that are ignored can grow into big problems. When people feel ignored or disrespected, they are more likely to take legal action. That is why using BIFF and EAR early on can be important.
 
Another key tip is to keep good communication going, even when there are no problems. Send regular updates, newsletters, or friendly messages that show the board is active and cares about the community. When people feel informed and respected, they are more likely to come to the HOA with their concerns before they explode.
 
Associations can also stay ahead of conflict by teaching board members and managers these tools in training sessions. The more people who use BIFF and EAR, the stronger and calmer the whole community becomes. And that means fewer angry emails, fewer meetings that turn into arguments, and ultimately, fewer lawsuits.
 
Keep the Peace and Protect Your Community
 
Dealing with conflict is part of life in any community, but it does not have to lead to courtrooms and chaos. By using the BIFF and EAR methods, associations, board members, and community managers can calm angry homeowners, solve problems early, and build stronger relationships.
 
These tools are not hard to learn. They just take practice and a commitment to respectful communication. When you respond in a way that is Brief, Informative, Friendly, and Firm—and show Empathy, Attention, and Respect—you create a space where people feel heard and respected. That is how good communities stay strong.
 
For more information about BIFF, EAR, or the High Conflict Institute please visit the High Conflict Institute’s website at www.HighConflictInstitute.com.
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Who Pays the Bill? When you can Recover Attorneys’ Fees and Costs in Enforcement Actions

Hannah I. Hughes, Esq.

Attorney

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Practice: Civil Litigation

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Although there are numerous factors a board of directors of a community association should consider before filing a lawsuit, one of the biggest factors is whether or not the association can recover its attorneys’ fees and costs. The standard rule is that absent a statutory or contractual provision providing for otherwise, the “American Rule” is that each side covers its own fees and costs.

Participating in a lawsuit, regardless of whether you are the plaintiff or defendant, can quickly become costly. Court motions, hearings, and discovery, can be very time intensive and your attorneys’ fees bill may quickly add up. Can a community association ever recover the attorneys’ fees and costs incurred in filing or defending a lawsuit to enforce its governing documents?

The short answer is: yes, a community association can recover attorneys’ fees and costs when enforcing its governing documents or the Davis-Stirling Common Interest Development Act (the “Davis-Stirling Act”). When a party enforces the governing documents or the Davis-Stirling Act against a member, the prevailing party is statutorily entitled to an award of attorneys’ fees and costs. (See California Civil Code section 5975(c)).

In addition to certain statutory rights for a prevailing party to recover attorneys’ fees and costs, most governing documents will include language stating that a prevailing party in a lawsuit to enforce the governing documents is entitled to recover the attorneys’ fees and costs incurred in doing so. However, be aware that both statutory and contracted recovery of attorneys’ fees and costs are reciprocal—meaning if the other party is determined by the court to be the prevailing party, the community association will have to pay the other side’s attorneys’ fees and costs.

In California, a “prevailing party” is defined as “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court…” (California Code of Civil Procedure section 1032). Importantly, the prevailing party is entitled to reasonable attorneys’ fees and costs calculated from the prelitigation Alternative Dispute Resolution. (Grossman v. Park Fort Washington Assn. (2012) 212 Cal.App.4th 1128). Ultimately, while a “prevailing party” is entitled to its reasonable attorneys’ fees and costs, the Court retains the ultimate discretion in the amount to award the prevailing party.

Although a community association’s right to recover attorneys’ fees and costs as a prevailing party in an enforcement action may be statutorily or contractually protected, there are several other actions a community association can take to ensure it is protected in recovering attorneys’ fees and costs. For example, if your governing documents have not been restated in several years and do not include an attorneys’ fees provision, we recommend you consult with an attorney at Epsten, APC who can assist you in restating your governing documents. Additionally, having your attorney draft an attorneys’ fees provision in any contracts you may use.

Understanding Due Process in Association Disciplinary Hearings

Jillian M. Wright, Esq.

Senior Attorney

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Practice: Community Association Counsel

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It is not uncommon for an owner receiving a disciplinary hearing notice to respond with something akin to, “I’m bringing my attorney to the hearing!” or “I demand the accuser be at the hearing to allow me to ask them questions!” Associations are responsible for maintaining community standards. Imposing discipline, such as fines or suspensions of privileges, at duly noticed hearings is a tool used to deter violations of those standards. However, many misunderstand members’ due process rights under California law at those disciplinary hearings. The disciplinary process must follow specific legal requirements, particularly those outlined in California Civil Code section 5855.

What Civil Code Section 5855 Requires

Civil Code section 5855 establishes the minimum due process requirements that associations must follow before imposing penalties on an owner, including what the specific hearing notice and results letters must include. However, as for due process at the hearing itself, Civil Code section 5855 only requires the association give the owner the opportunity to attend the hearing and present their side of the story, either in person or in writing. While this process ensures basic fairness, it does not create the same formal due process rights that a homeowner would receive in a court of law. The association retains significant discretion in enforcing its rules, and disciplinary hearings are not subject to strict legal procedures like those found in judicial proceedings.

Why the Law Grants Limited Due Process

Associations are private organizations, not government entities, which means they are not required to follow the same extensive legal due process standards as courts. Civil Code section 5855 strikes a balance by ensuring homeowners receive notice and an opportunity to be heard, while still allowing associations to efficiently enforce community rules.

For example:

      • The board serves as the decision-maker – Unlike in a courtroom, where a neutral judge or jury decides the outcome, the association’s board itself determines whether a violation occurred and what penalty, if any, is appropriate.
      • No formal rules of evidence apply – The board can consider various types of information, including written complaints, photos, or testimony from neighbors, without strict legal evidentiary requirements.
      • Legal representation is limited – While homeowners may bring an attorney, the board is not obligated to allow lawyers to actively participate in the hearing. In fact, as the hearings take place at board meetings, California case law explicitly allows associations to forbid owner’s attorneys to attend (SB. Liberty v. Isla Verde Association).

 

 

PRACTICE TIP:

While Civil Code section 5855 sets the minimum due process requirements, some associations may have additional protections outlined in their governing documents. Associations should regularly review their bylaws and CC&Rs to determine if they provide:

      • Additional notice requirements beyond the 10-day minimum.
                 
      • Specific hearing procedures that must be followed, including cross-examination and inspection of evidence.

If the governing documents impose these or other due process requirements, consult with legal counsel to discuss the enforceability of such provisions.

 

 

Conclusion

Civil Code section 5855 provides a balanced approach to association disciplinary hearings, granting homeowners basic due process rights while allowing associations to enforce their rules effectively. By carefully following the law and reviewing their governing documents, associations can maintain community standards while ensuring that all enforcement actions are fair, transparent, and legally sound.

Welcome to the Wild Wild West: Community Associations and Social Media

Rhonda R. Goldblatt, Esq.

Senior Attorney

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Practice: Community Association Counsel

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*Article originally published in CAI San Diego Community Insider Magazine, Spring 2025

While community association boards might view social media as a free, convenient means of disseminating information to the membership, social media use by associations can be fraught with potential stumbling blocks. Boards may in fact prefer to avoid using social media altogether given the concerns listed below. At the same time, Civil Code section 4515 limits associations’ ability to restrict individual homeowners’ use of social media to discuss association life. In that respect, associations may need to view individual homeowners’ use of social media from a live-and-let-live perspective.

Potential Concerns – Association Use of Social Media

      1. The Loose Canon: board members may lose their temper, reveal attorney-client privileged information, or otherwise inflame an already volatile dispute when posting or responding to homeowner comments on social media. Online content lives forever, even if subsequently deleted. Ill-considered board member comments can in turn attract defamation claims, sow division, and otherwise negatively affect the association.
      2. Constant Vigilance: association-run social media pages must be constantly monitored because negative, defamatory, or otherwise ill-advised content may be posted by homeowners, which the association may in turn need to regulate or delete. Homeowners may also post negative content about one another, leading to demands that the association delete such content by the targeted party, putting the association in a tough position. Homeowners may additionally choose to notify the association of important issues via social media rather than contacting management. The resulting need for constant monitoring can be time-consuming and expensive.
      3. Is This Covered?: association and board members’ online activities on social media may not be covered by association insurance policies. If an association is sued in connection with online activity, and the claim is not covered, any resulting liability could be financially devastating.

Civil Code Section 4515 and Homeowner Use of Social Media

If an association steers clear of social media, shouldn’t homeowners be required to do the same? Under the law, no. Civil Code section 4515(b) states governing documents shall not prohibit a member or resident of a common interest development from “using social media or other online resources to discuss any of the following, even if the content is critical of the association or its governance:”

      1. Development living;
      2. Association elections;
      3. Legislation;
      4. Election to public office;
      5. The initiative, referendum, or recall processes; or
      6. Any other issues of concern to members and residents.

Note that homeowners’ social media posts may be critical of the association; negativity, whether unfair or not, does not constitute grounds to regulate homeowner online activity. Further, “development living” and “any other issues of concern to members and residents” are so broad as to effectively serve as catch-all categories, allowing homeowners to freely post about most association-related topics.

So where does this leave community associations? Associations may do well to remember that one of the main purposes of common interest developments is to maintain the common areas. That is, associations serve physical needs (maintenance) in the real world, rather than playing a role online. Given that associations are also limited in regulating homeowner online activity, associations may want to steer clear of the Wild Wild West of social media entirely. Does an association really need to be on TikTok? As fun as it sounds, perhaps not.

Beyond Electronic Voting; Key 2025 Legislation Every HOA Manager Should Know

Karyn A. Larko, Esq.

Senior Attorney 

858.527.0111
Email
Practices: Community Association Counsel 

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While the primary focus of the residential community association management industry is AB 2159, which permits electronic voting, several other bills were signed into law in 2024 that managers should be aware of.

SB 900  

SB 900, which went into effect January 1, 2025, significantly amends Civil Code (“CC”) § 4775 to address the maintenance and repair of utility services in common interest developments. SB 900 also makes minor revisions to CC § 5550 and 5610. Specifically, SB 900 makes an association responsible for the repairs and replacement needed to restore interrupted utility services (i.e., gas, heat, water or electrical services) that begin in the common area even when the issue extends into a separate interest or exclusive use common area, unless the association’s CC&Rs expressly provide for a different allocation, or the utility provider or local government is required to perform the work.

SB 900 requires an association to commence the repair process necessary to restore utility service within 14 days of service interruption.

If an association has insufficient reserve funds to cover the needed utility work, SB 900 permits an association’s board to obtain a loan to cover these costs without a member vote. The board may also levy an emergency assessment to repay the loan. Like a board’s existing right to impose an emergency assessment under CC § 5610, before obtaining a loan, a board must pass a resolution containing written findings regarding the nature of the expenses and the insufficiency of reserve funding. This resolution must be distributed to the members via individual delivery with the notice of the emergency assessment. The association must also provide any other notices required by law or the association’s governing documents.

If a quorum of the board cannot meet within 14 days to address the repair process, then at the next duly noticed board meeting, the total number of directors in attendance shall constitute a quorum. If applicable, the meeting notice shall state that the board may meet with a reduced quorum.

The board may also vote to approve the work needed to restore the utility service by electronic means, including email. All records of the electronic vote constitute association records and are subject to member inspection for three years.

In the event an association fails to meet these SB 900 requirements, the association may be held liable for that failure, but individual board members may not be found liable.

An association is exempt from complying with SB 900 requirements if the association is located in an area affected by a federal, state or local state of disaster or emergency, provided the disaster or emergency materially affects the association’s ability to perform its utility repair responsibilities.

The legislature amended CC § 5550 to designate utility services as “major components” to the extent an association is obligated to repair or replace those lines by CC § 4775.

The legislature amended CC § 5610(b) to add operating costs as an extraordinary expense if health or safety hazards are discovered on site.

AB 2114

SB 326 (“The Balcony Bill”) established CC § 5551 as of January 1, 2020. Under CC § 5551, an association is, among other things, required to have a reasonably competent and diligent visual inspection of a random and statistically significant sample of the exterior elevated elements for which the association is responsible for maintaining or repairing at least once every nine years. Previously, only licensed architects and structural engineers were permitted to perform these inspections.

Effective immediately, AB 2114 amended CC § 5551 to permit licensed civil engineers to perform these inspections rather than limiting the inspections to architects and structural engineers.

AB 2460

AB 2460 amends 2023’s AB 1458, which provided that if an association requires a quorum for director and/or recall elections, the association must provide the membership with general notice of the date, time and location of the meeting at which the quorum will be determined, and a statement that the board may adjourn the meeting for at least 20 days if the association fails to achieve quorum. If an association does not reach quorum for a director election, the association may adjourn the meeting to tabulate the votes for a minimum of 20 days. Unless the association’s governing documents authorize a lower quorum, the quorum for the adjourned meeting drops to twenty percent (20%). General notice of the adjourned meeting must contain the following: (1) the date, time and location of the adjourned meeting, (2) the list of candidates, (3) a statement that the quorum requirement is reduced to 20% and (4) that the ballots will be opened if the 20% quorum requirement is reached. The association must provide this notice to members not less than 15 days prior to the adjourned meeting.

AB 2460, which went into effect January 1, 2025, does not substantively change the law. Rather, it clarifies the changes to CC § 5115 and Corporations Code § 7512 made last year by AB 1458. Specifically, AB 2460 further clarifies that the 20% quorum for board elections and the related notice requirements only apply to incorporated and unincorporated associations with governing documents that impose a quorum requirement of more than 20% for reconvened meetings to elect directors, that members can call for a reconvened meeting, and that the notice that must be provided to the members at least 15 days in advance of the meeting date refers to the reconvened meeting date. Finally, AB 2460 clarifies that 20% of an association’s members, voting in person, by proxy, or secret ballot will satisfy quorum for the election of directors at a reconvened meeting and that the ballots will be counted if quorum is reached.