New Year, New Documents: When Associations Should Consider Restating their Governing Documents

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By Rhonda R. Adato, Esq.

Published December 12, 2022

 

Boards of directors of community associations frequently wonder at what point they should restate their association’s Bylaws and CC&Rs. Many associations have older, outdated governing documents that could use a complete overhaul.  At the same time, restating these documents typically requires membership approval. Restated documents should also be prepared by a qualified attorney, and must be approved in a secret, double envelope vote, so the project can be relatively costly.  Below are some recommendations for when to pursue a restatement:

When portions of the governing documents are unenforceable. Older documents may have been superseded since their adoption by subsequent case law and statutes, rendering certain provisions unenforceable. Boards may want to restate their governing documents to bring them current with existing law (and thereby making them enforceable once again).

When the documents no longer fit the community’s needs. Communities change over time.  A set of CC&Rs recorded in the 1970s may no longer reflect the owners’ preferences with respect to parking arrangements, architectural styles and more. Older documents also may not address innovations like solar panels and electric vehicle charging stations.  Further, the board may wish to amend the governing documents to empower the board to address a specific problem in the community.

When the documents include discriminatory provisions. Civil Code section 4225 requires boards to amend out any provisions in a governing document which discriminate on the basis of a protected status. Such an amendment does not require membership approval.  However, once this has been accomplished, boards may want to consider pursuing a complete document overhaul (a restatement), which does require membership approval. Documents old enough to include discriminatory provisions are likely due for an update in many other respects as well.

When the documents are just confusing. Not all Bylaws and CC&Rs are made equal.  Some are better written than others. If your documents create more confusion than clarity, because of inconsistent or vague language, it may be time for a refresh. This need may be especially pressing given that vague or inconsistent language can give rise to lawsuits, as homeowners insist on interpreting the documents in one manner, and the board another!

To better protect the association’s interests. Original governing documents are typically written by the community’s developer. As one might expect, these documents frequently protect the developer’s interests rather than the association’s. The board may want to consider restating the documents to provide the board with more expansive authority, and/or insert provisions designed to minimize the association’s and individual directors’ potential liability.

No matter your association’s goals, boards should consult their community association counsel regarding the timing and procedure of restating their governing documents. Everyone deserves a makeover sometimes!

 

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Rhonda R. Adato is an Associate Attorney in the Transactional Department of Epsten, APC, and can be reached at [email protected].

*This article was originally published in San Diego Community Insider in the Winter 2022 edition and was adapted from the original article, New Year, New Documents: When Associations Should Consider Restating their Governing Documents.

What Duties Does an Association Have to Maintain Video Recordings?

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Victor Valley Union High School District v. Superior Court (2022) 86 Cal. App. 5th 940.

What Duties Does an Association Have to Maintain Video Recordings?

By Joseph A. Sammartino, Esq.

 

Technology is advancing at an ever-increasing pace.  The cellphones in our pockets are not just phones, — they­­  take pictures, send email and text messages, provide GPS navigation, play music, run hundreds of apps that do almost everything, and they have better higher resolution video capability than movie studios had in the 1990s.  As technology improved and shrunk (and became much less expensive), video cameras for security surveillance have become so commonplace that most people do not notice them and go about their daily lives as if the cameras were not there.  But what happens when one of those cameras – in one of our communities – records activity that leads to an inquiry that does not get resolved which turns into a dispute and ultimately becomes a lawsuit?  What duties does an association have to maintain those video recordings or face possible sanctions under the Code of Civil Procedure for spoliation of evidence?

On December 22, 2022, the Fourth District Court of Appeal issued its opinion in the case of Victor Valley Union High School District v. Superior Court (Doe).  The court, in a different context, set forth the most current guidance on maintaining video recordings and other potential evidence.  The facts of the Victor Valley case are tragic and hopefully extraordinarily rare: two male high school students took a third male student, who was unsupervised, but who typically had full-time adult supervision both in and out of the classroom, from the cafeteria into a bathroom where they sexually assaulted him.  The school had video cameras in the cafeteria, and the assistant principal and a security officer reviewed the footage from the cafeteria cameras from a three-day period.  The third day of video included the recording of the two students taking the third student from the lunch table toward the locked bathroom.  Fourteen days later, because no one took any steps to preserve the video because each thought the other was saving it, the video was recorded over and lost forever.

Importantly, the court set forth the rules clearly and concisely: the safe-harbor provision of the California Code of Civil Procedure section 2023.030, subdivision (f), “shields a party from sanctions for the spoliation [meaning the loss or destruction] of electronic evidence only if the evidence was altered or destroyed when the party was not under a duty to preserve the evidence, and the duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.”

While the court’s words are clear, they leave an important practical question unanswered: when is litigation likely to arise from an incident or dispute and instead of being a mere possibility?  That is a question that could be argued and debated before courts for decades without a clear, simple answer.  From a lawyer to a client, the simplest and best answer to that question is the age-old advice: better safe than sorry.  If there is video footage (or other evidence) that relates to any incident, issue, or dispute, it would be much better to take the steps necessary to preserve that evidence until final resolution is reached rather than to take the chance that an appellate court might decide years later that litigation was likely to arise and, therefore, to impose monetary sanctions against an association for destroying evidence that should have been preserved.

 

The Privette Doctrine: How Community Associations Can Be Shielded from Potential Liability for Work-Related Injuries to Employees of Independent Contractors

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By Dea C. Franck, Esq.

Outside of certain California legal circles, the Privette doctrine is not well known, but this doctrine provides important liability protections for anyone, including community associations, that hire an independent contractor to perform work on one’s property.  Because of these potential liability protections, community association boards and managers should be aware of the Privette doctrine and its exceptions to protect the communities they serve from potential liability stemming from workplace injuries.

The Privette doctrine derives its name from the 1993 California Supreme Court case, Privette v. Superior Court (1993) 5 Cal.4th 689.  Prior to this case, California utilized the doctrine of peculiar risk meaning that a person who hired an independent contractor to perform an inherently dangerous job could be held liable for injuries suffered to the independent contractor’s employees while performing that job.

In the Privette case, Privette hired a roofing contractor to install a new roof on the property owner’s duplex.  While performing that job, one of the roofer’s employees was badly burned by the hot tar he was carrying when he fell off a ladder to the roof.  Privette was not present at the property when the employee’s injuries occurred.  The employee sued Privette alleging that Privette was negligent in hiring the roofer and that the doctrine of peculiar risk made Privette liable for his injuries.  However, the court in Privette determined that the doctrine of peculiar risk was no longer fair.  Why?  Because the State’s workers’ compensation system allows injured workers to “recover benefits for injuries ‘arising out of and in the course of the employment’” and when a person or entity hires an independent contractor to perform a job or service, the hirer inherently delegates to that contractor the obligation to perform the work safely and to provide a safe worksite.  In light of these reasons, the Privette court held that the hirer of an independent contractor would not be vicariously liable for work-related injuries suffered by the workers of hirer’s independent contractor.  The court’s holding would be thereafter called the “Privette doctrine.”

There are two elements to the Privette doctrine, which together create a rebuttable presumption in favor of a defendant hirer.  The first element is that the defendant hirer must establish that the plaintiff worker was either the independent contractor or worked for the independent contractor when the plaintiff’s injuries or death occurred.  The second element is that the defendant hired the plaintiff directly or hired the plaintiff’s employer when the plaintiff’s injuries or death occurred.  If a defendant hirer can establish both elements of the Privette doctrine, the burden of proof shifts to the plaintiff worker who must prove that an exception to the Privette doctrine applies.

There are currently three exceptions to the Privette doctrine, which if proven by a plaintiff worker could expose the defendant hirer to liability:

1) Retained Control Exception – Under the retained control exception, a person or entity that hires an independent contractor will not be liable for work-related injuries to the independent contractor’s employees unless the hirer retained control over the safety conditions at a jobsite and by negligently exercising that retained control the hirer affirmatively contributed to the worker’s injuries. (See Hooker v. Department of Transportation (2002) 27 Cal.4th 198.)

2) Defective Equipment Exception – Under the defective equipment exception, if a person or entity hires an independent contractor, the hirer requests or requires the independent contractor to use defective equipment of the hirer to perform the work, and that defective equipment affirmatively contributed to the worker’s work-related injuries, then the hirer may be liable for the worker’s injuries or death. (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219.)

3) Concealed Hazard Exception – Under the concealed hazard exception, if a person or entity hires an independent contractor, the hirer knew or should have known of a preexisting concealed hazardous condition on the hirer’s property, the independent contractor did not know or could not have reasonably discovered that preexisting concealed hazard, the hirer failed to warn the independent contractor of that hazard, and a worker of the independent contractor suffers injuries or dies because of that preexisting concealed hazard, then the hirer may be liable for the worker’s injuries or death.  (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.)  Conversely, if an independent contractor knows of a concealed hazard on the hirer’s property or the hazard is open and obvious, the independent contractor fails to consider that hazard and, as a result, the independent contractor provides an unsafe worksite, and the independent contractor’s failure to provide a safe worksite results in a worker becoming injured or dies, then the hirer will not be liable.  (See Gonzalez v. Mathis (2021) 12 Cal.5th 29.)

In light of the Privette doctrine and its exceptions, community association boards and managers should keep the following in mind:

  • Besides determining the scope of work, leave any decisions as to how the work should be performed and what equipment should be used to perform the work to the discretion of the hired independent contractor.
  • If a board or manager knows of a preexisting concealed hazard in the community where the independent contractor and/or their workers will be working or traversing, then disclose that hazard to the independent contractor prior to the work commencing.
  • Contracts with vendors should expressly delegate to the independent contractors the obligation to comply with all applicable statutory and regulatory requirements to provide a safe worksite.
  • Confirm that the independent contractor has the requisite license(s), insurance and worker’s compensation coverage prior to hiring the independent contractor.
  • Require the independent contractor to add the association as an additional insured on the independent contractor’s insurance policies whenever possible.

Dea C. Franck, Esq., is a shareholder and senior attorney with Epsten, APC.  Epsten, APC has been providing solutions to Southern California common interest development legal issues since 1986.  Dea may be contacted at [email protected].

 


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*This article was originally published in the CAI-CV HOA Living Coachella Valley Magazine and was adapted from the original article, The Privette Doctrine: How Community Associations Can Be Shielded from Potential Liability for Work-Related Injuries to Employees of Independent Contractors) as authored by Dea C. Franck, Esq.

Annual Request for Owners’ Addresses and Owners’ Preferred Methods of Delivery

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By Dea C. Franck, Esq.

Added to the Davis-Stirling Common Interest Development Act (“DSA”) by the California legislature in 2016 and further amended in 2021 and 2022, Civil Code section 4041  requires a common interest development association (“association”) to annually solicit the following information from owners: (1) the owner’s preferred method of delivery for receiving notices from the association, which includes the option of receiving notices at a mailing address and/or an email address; (2) an alternative or secondary method of delivery for receiving notices from the association, which includes the option of receiving notices at a mailing address and/or an email address; (3) the name, mailing address, and (if available) email address of the owner’s legal representative, if any, including any person with power of attorney or other person who can be contacted in the event of the owner’s extended absence from his/her separate interest; and (4) whether the owner’s separate interest is occupied by the owner, rented, developed but vacant, or undeveloped.  (Civil Code § 4041(b).) Civil Code section 4041 also requires owners to provide written notice of this information to their association annually. (Civil Code § 4041(a)(1)-(4).)

The annual solicitation notice sent by an association must include a statement that owners are not required to provide the association with an email address and a simple method for how an owner can notify the association in writing if they would like to change their preferred delivery method for receiving notices from the Association. Associations are required to enter the information received from owners in the association’s books and records at least thirty (30) days prior to the association making its annual budget report and policy statement disclosure as required by Civil Code section 5300.  (Civil Code § 4041(b).) If an owner fails to provide their association with their preferred delivery method, the last mailing address provided in writing to the association by the owner, or, if none, the owner’s property address within the association is the owner’s default preferred method of delivery. (Civil Code § 4041(c).)

Beginning January 1, 2023, associations are required to deliver documents using an owner’s preferred delivery method if such documents are required by law to be delivered via “individual” notice or “individual” delivery.  (Civil Code § 4040(a)(1).)  As noted above, if an association has no record of an owner’s preferred delivery method and the document must be sent by “individual” delivery, an association must mail the document to the owner’s address last shown in the association’s records.  (Civil Code § 4040(a)(2).)

Also beginning January 1, 2023, associations must deliver copies of its annual budget report and policy statement disclosure as required by Civil Code section 5300 et seq., and copies of any and all assessment collection notices as required by Civil Code section 5650 et seq., including copies of any notice of default or other nonjudicial foreclosure related notice contemplated in Civil Code section 5710 to not only the owner’s preferred mailing and/or email address, but also to the owner’s secondary mailing and/or email address too, if one is identified by an owner. (Civil Code § 4040(b).)

It’s important to note that Civil Code § 4040(c) provides that an unrecorded governing document provision (e.g., a bylaw or rule provision), which details a specific method of delivery, does not constitute an agreement by the owners to that delivery method.  In other words, if a rule or bylaw provision provides for a specific method of individual delivery that is contrary to an owner’s preferred delivery method, the association must use the owner’s preferred delivery method.

Consequently, boards and managers can no longer assume that an owner’s mailing address in the association is an owner’s preferred method of delivery.  Rather the associations must confirm whether an owner has specified a preferred method of delivery before sending that owner documents from the association if those documents must be sent via individual delivery.

Formation and Use of Executive Committees

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By Karyn A. Larko, Esq. and Christina S. Saad, Esq.

A committee is a group of persons appointed by an association’s board of directors to perform a specific task or tasks.

The scope of authority of a committee is largely dependent on its composition. A committee composed solely or partially of persons other than board members is generally tasked with advising the board on specific matters or exercising powers granted to that committee by the governing documents (e.g., some architectural review committees (“ARCs”).

Conversely, executive committees (“ECs”) are composed of two or more current directors and only current directors in accordance with California Corporations Code § 7212. ECs are given decision-making power that would otherwise be exercised by the board. An example of an EC is a litigation committee comprised solely of directors, established to communicate with the association’s legal counsel and make decisions pertaining to a lawsuit. Another example is an ARC comprised solely of directors tasked with exercising the board’s authority under the governing documents to approve or reject architectural applications.

Forming an EC

An EC should be formed when a board needs to delegate tasks for which it is responsible. This need may arise when a board is dealing with a complex, time-consuming matter that is ongoing and necessitates attention between board meetings. This need also exists when a dispute exists between a director and the association. In the latter example, the interested director (i.e., the director whose interests are contrary to the association’s interests) should not serve on the EC due to their conflicting interests.

California Civil Code § 5350 requires directors to recuse themselves from voting on certain matters. In some instances, it may also be prudent to form an EC to address these matters.

ECs should not be formed to exclude a director from generally participating in board discussions and votes. However, if a director is jeopardizing the interests of the association by, for example, revealing confidential or privileged information to others, it may be appropriate to form an EC to exclude that director from meetings whereat the Board discusses matters that, if made public, might expose the association to liability or disadvantage the association in a dispute. Your boards should consult with their association’s legal counsel before forming an EC for this purpose as taking this action can also create legal issues for the association.

Why Form an EC?

There are benefits to having ECs. An EC comprised of directors willing and able to volunteer more time to the association can address complex, time-consuming matters more quickly than the entire Board. Additionally, since an EC has fewer members, scheduling meetings and coming to a collective decision on matters is often easier. Finally, if less than a quorum of directors serves on an EC, the EC meetings are not subject to the Open Meetings Act (i.e., the meetings are not subject to the same notice and agenda requirements as board meetings).

In the event of a dispute involving a director, especially a dispute that could lead to litigation, there are important additional benefits to establishing an EC of disinterested directors (i.e., directors not adverse to the association in the matter) to handle the dispute. By establishing the EC, the board can prevent the interested director from obtaining privileged or confidential communications and documents related to the matter (e.g. correspondence between the EC and the association’s legal counsel, expert findings), thereby better protecting the association’s attorney-client privilege and its interests. The board can also avoid the appearance of impropriety and better protect the association and directors individually against potential liability.

In order to preserve the association’s attorney-client privilege, however, all EC meetings pertaining to the director dispute must be held in executive session and all legal guidance, EC discussions, meeting minutes and other documents and information related to the dispute cannot be disclosed to persons outside of the EC, including other directors.

Forming an EC

Have your boards review their governing documents prior to establishing an EC. The governing documents may already establish the EC, grant the board committee-making authority or, conversely, limit the board’s committee-making authority, as well as impose requirements on how ECs are formed or who may serve on them.

Unless otherwise provided for in the governing documents, ECs may be formed by a resolution or charter adopted by a quorum of the board pursuant to Corporations Code § 7212. A resolution is an official expression of the opinion or will of the board that includes the reasons for that opinion or will. A charter is a founding document that is typically more detailed than a resolution and outlines the EC’s responsibilities and authority.

When forming an EC, your boards should consider: 1) whether any directors have conflicts of interest that disqualify them from appointment or perceived conflicts that make appointment unwise; 2) whether certain directors have knowledge and experience that would benefit the EC; 3) the time commitment needed to serve on the EC; 4) whether the governing documents dictate which directors serve on the EC (e.g. based on the offices they hold); 5) whether California law dictates the composition of the EC (e.g. Civil Code § 5501 requires the treasurer to serve on an EC that reviews the association’s financials); and 6) the willingness of directors to serve on the EC.

The board should also keep in mind that if the EC is composed of a majority of the board, the same notice and agenda requirements for board meetings will apply to EC meetings. Having said this, the authority of an EC composed of a quorum of the Board is less likely to be challenged. Thus, ECs established to handle controversial matters should generally include a quorum of the board.

 

Multiple Choice Questions (correct answers in bold)

An executive committee may be composed of two or more:

a) current and former directors.

b) current directors and general members.

c) current directors and non-member experts on the matter.

d) current directors only.

 

Which of the following is not an appropriate reason for a board to form an executive committee?

a) a complex, time-consuming matter has arisen for the association

b) a majority of directors do not like the personality of another director

c) a dispute exists between a director and the association

d) the governing documents have granted the Board the authority to do so

 

Which of the following statements pertaining to executive committees is accurate?

a) An executive committee must be formed by a quorum of the board, and all executive committee meetings must be properly noticed pursuant to the Open Meetings Act.

b) An executive committee may be formed by a quorum of the board, in which case the executive committee meetings must be properly noticed pursuant to the Open Meetings Act.

c) An executive committee may be formed by a quorum of the board, but, in either case, notice of executive committee meetings should not be provided to the membership.

d) An executive committee may not be formed by a quorum of the board, and notice of executive committee meetings should not be provided to the membership.

 


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*This article was originally published in The Law Journal Winter, 2022 and was adapted from the original article, Formation and Use of Executive Committees, as authored by Karyn A. Larko, Esq. and Christina S. Saad, Esq.

 

Refresher on the Architectural Approval Process

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By Lindsay J. Anderson, Esq. and Karyn A. Larko, Esq.

Most CC&Rs require owners of the separate interests to obtain association approval prior to making structural alterations or alterations to the exterior of their separate interests or common area.

In some instances, the language is vague, imposing the obligation on owners, but providing few details. In other instances, the CC&Rs set forth in detail the process owners (and the association) must follow.

Directors should be encouraged to review their association’s CC&Rs so they are well-versed on the architectural approval process (“Process”) they must follow. Likewise, if the CC&Rs provide for an architectural review committee (“ARC”), ARC members should be encouraged to review the Process.

Having said this, “knowing” the Process is not enough. The board and ARC, if any, must also comply with the Process. Failure to do so can lead to the inadvertent approval of alterations that are not acceptable to the board or ARC.

Many CC&Rs state that if an application is not approved or denied within a specified time period, the application is automatically approved or association approval is no longer required.

The inadvertent approval of alterations can result in alterations that are detrimental to the appearance of the community and property values, or that undermine the structural integrity of a building. Inadvertent approval of alterations can also lead to potential liability for the association and, in some instances, individual board or ARC members.

On a related note, be sure your boards and ARCs know the time periods imposed by California law for reviewing solar energy systems and electric vehicle charging station applications. California Civil Code (“CC”) §714(e) (2)(B) provides that unless a solar energy system application is denied in writing within 45 days of submission, it is deemed approved.

CC §4745(e) provides that if an electric vehicle charging station is not denied in writing within 60 days of submission, it is deemed approved. The Civil Code controls in the event the governing documents grant a longer review period.

Federal law also imposes a deadline for reviewing applications for qualifying satellite dishes and antennas. If your clients require approval for the installation of these devices, encourage your boards to consult with their association’s legal counsel on this matter

REVIEWING APPLICATIONS

The CC&Rs generally identify the factors the board or ARC is to consider when evaluating applications, such as conformity of the alterations with the governing documents, the quality of the proposed workmanship, the design and harmony of the alterations with existing structures, the location of the alterations in relation to surrounding structures, topography, and finish grade elevation.

It is important that boards and ARCs understand the scope of their authority and duty when evaluating applications, and perform their evaluation in keeping with this scope.

If an application contains a disability related request for a reasonable accommodation, the board or ARC should consult with the association’s legal counsel on how best to evaluate the application.

APPROVING/DENYING APPLICATIONS

Boards and ARCs must act reasonably and not in a capricious or arbitrary manner when deciding applications. This does not mean that if they have previously approved an alteration, they must approve all future applications for the same or similar alterations.

Nor does it mean that if they have previously denied an alteration, they must do so in the future. However, they should have objective reasons for treating the applications differently and these reasons should be noted in the meeting minutes.

For example, the location of a proposed alteration in relation to other structures might be a basis for denying a request that was previously approved elsewhere in the community.

CC §4765(a)(4) mandates that applications be approved or denied in writing, and that if an application is denied, the notice of denial must include the reason(s) for the denial and a description of any procedure the owner must follow to appeal the denial.

Your boards and ARCs may impose reasonable conditions when approving applications, subject to any limitations imposed by the governing documents. If any conditions are imposed, these conditions should be clearly set forth in the notice of approval.

APPEALS

If applications are denied by an ARC, other committee, or subcommittee of less than the whole board, CC §4765(a)(5) grants owners the right to appeal the denial of their application to the board. Section 4765(a)(5) does not extend this same right of appeal to other owners who may object to the approval of a neighbor’s application.

Some governing documents provide an appeal process regardless of the composition of the body reviewing applications. In such instances, this process must be followed even if the right to appeal is not imposed by the CC.

If owners are entitled to appeal, the board must promptly consider their appeal at a duly noticed open session board meeting, subject to any additional requirements imposed by the governing documents.

ARCHITECTURAL GUIDELINES

CC §4765(a)(1) requires associations to have a fair, reasonable, and expeditious procedure for deciding applications, including the maximum time for responding to applications and appeal requests. This procedure must be set forth in the governing documents, which include CC&Rs and rules or guidelines.

Therefore, if any of your clients have CC&Rs that do not include a detailed description of the architectural review process or have concerns about the current process, they should consult with legal counsel.

If authorized by the governing documents, your boards should adopt architectural guidelines that set forth any standard restrictions on commonly requested alterations. By doing so, they reduce the potential for inconsistent application decisions and claims of wrongdoing.

ANNUAL DISCLOSURE

CC §4765(c) requires associations to notify their members annually of any requirements for association approval of physical changes to property. This notice must describe the types of changes that require association approval and include a copy of the association’s process.

 


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*This article was originally published in The CACM Law Journal, Fall 2022 edition and was adapted from the original article, Refresher on the Architectural Approval Process) as authored by Lindsay J. Anderson, Esq. & Karyn A. Larko, Esq.

 

An interview with ProTec Building Services and Kieran J. Purcell, Esq.

An interview with ProTec Building Services and Kieran J. Purcell, Esq.

Dave Rauch of ProTec Building Services interviews Epsten, APC Shareholder, Kieran Purcell, Esq., to discuss a wide variety of topics including SB 326 and what it means for communities as the deadline nears. They also discuss future legislation we can expect to see here in California in response to the Champlain Towers collapse and other trends in the industry.

Click here to check out the full interview.

Video source credits to ProTec Building Services

Parking and Requests for Accommodation for a Disability

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By Jillian M. Wright, Esq.

Parking requests to accommodate a disability bring about a particular set of issues and questions.  What requests are reasonable? If the board deems a request reasonable, who pays for the accommodation, if a cost is involved? What if parking spots are so limited in the community that accommodating the request seems impossible? What to do?

When in receipt of an accommodation request, a board is strongly encouraged to engage in an interactive process and make a good faith effort to consider the following when deciding how to handle the request:

Does the requesting party have a qualifying disability?

If someone has a physical or mental impairment which substantially limits a major life activity like walking, talking, hearing, seeing, breathing, learning, performing manual tasks or caring for themselves, then federal law considers them disabled. State law offers broader protection; disability is defined as an impairment that makes performance of a major life activity “difficult.” If a requesting party’s disability is obvious, e.g., they use a wheelchair, then it could be considered discriminatory to ask for verification of the disability.

Does the requesting party have a disabled person placard or license plate?

Oftentimes, when requesting a parking accommodation the requesting party will have a disabled person placard from the DMV. Presuming the plate or placard is current and valid, then this should constitute sufficient verification of a disability related to use of a vehicle

Is the request reasonable?

Every community’s parking situation differs and so too will the reasonableness of a request for accommodation. One main factor to consider is whether the request is even possible. For example, if the requesting party asks for a parking space closer to their unit but there are no common area spaces closer to the unit, the board likely does not have the power under the governing documents to displace another owner from their deeded or assigned parking spot.

A board should also consider whether there is a causal link between the disability and the request for a parking accommodation. Not every disability impacts the use of a vehicle and parking. If a person with a mental disability requests a parking accommodation, it would be reasonable to request verification to identify the link between the request and the disability.

Another consideration is cost. Typically, granting parking variances have minimal costs to the community while physical modifications can become costly. If the cost to the association is minimal and the benefit to the disabled person is significant it will be difficult to argue that the request is not reasonable.

Is the request necessary to allow equal enjoyment of the community or just convenient?

A requesting party is not entitled to an accommodation if the accommodation is merely convenient, but they are entitled to a reasonable accommodation if the accommodation is necessary to allow them the equal use and enjoyment of their home or the common area facilities.

One federal case illustrates this point well: In Sporn v. Ocean Colony Condominium Ass’n. (D NJ 2001) 173 F.Supp.2d 244, a disabled owner sought and received permission to use a parking space closer to his unit, but Sporn refused to relinquish his assigned space despite the association’s parking rules requiring such transfer. Sporn argued that he needed the space for his guests.  The Sporn court held, “an accommodation should not ‘extend a preference to handicapped residents [relative to other residents], as opposed to affording them equal opportunity'” and “accommodations that go beyond affording a handicapped tenant ‘an equal opportunity to use and enjoy a dwelling’ are not required …”(Citations omitted.) The association’s parking policy requiring the relinquishment of one’s deeded parking space granted the same rights to disabled tenants as it did to non-disabled residents. When plaintiff Sporn was asked to relinquish his parking space pursuant to the association’s parking policy, Sporn refused and when asked why he needed two spaces, Sporn did not offer any explanation related to the disability, but instead responded, “because during the summertime we couldn’t get any parking for any of our family that came down.” (Id.). This comment lead the Sporn court to determine that Sporn’s request for “reasonable accommodation” was really a request for accommodation coupled with a demand for special treatment.

Even if the board determines the requesting party is disabled and accommodation is necessary, unique concerns arise that are specific to parking accommodation requests:

Are common area disabled parking spots required by law/building code?

Not necessarily.  While disabled parking spots are common in public accommodations (hotels, restaurants, grocery stores, etc.), if the community is not a public accommodation subject to the Americans with Disabilities Act and was built prior to building code regulations requiring disabled parking spaces, then the association likely does not need to convert any open parking spaces to disabled parking spaces. When asked, each community should review its conditional use permit and consult with a licensed contractor or architect familiar with the applicable building code. Moreover, construction of additional disabled parking spots is often impossible because there is limited space or a limited number of common area parking spaces.

What if there are no open common area spaces to provide?

An association is only required to accommodate a reasonable request to the extent possible. If, for example, there are no spaces closer to the requesting party’s residence or there is no way to convert an existing common area space to make it more accessible, then the association should engage in the interactive process with the requesting party to determine if there is any reasonable alternative which alleviates some of the requesting party’s concerns. Every community and disability is different, so it is best to consult with legal counsel if approval of a reasonable accommodation seems impossible.

Does the association have to help pay for the accommodation?

Maybe! Some accommodation requests include physical alterations to the parking lot – painting new lines, making and installing a “reserved” sign, etc. Such alterations might sound more like a reasonable modifications rather than accommodations. Owners are often responsible for the cost to install reasonable modifications if it benefits them individually. However, the courts have treated requests for parking spaces as requests for reasonable accommodations, making associations responsible for some costs.  Providing a parking accommodation could include creating signage, repainting markings, redistributing spaces, or creating curb cuts.  This list is not exhaustive and there is no clear law on how much expense is unreasonable.

Can a disabled resident allow their non-disabled guests to park in a spot afforded to them as an accommodation?

Yes. As mentioned above, disabled persons must be afforded equal enjoyment of the community. If an association would allow any other resident to have guests park in their assigned parking spot, then the association must also extend this right to disabled persons, even if their guests are not disabled.

The resident has a disabled parking placard and claim that they can park anywhere with the placard regardless of the rules. Is this true?

No, not necessarily. While a resident with a disabled parking placard or license plate may park in all disabled parking spaces, when parking on private property they are still subject to the reasonable rules of the community. For example, they may not park in a fire lane or in a manner that blocks the ingress and egress of other residents. Another example: if there is a limit to parking in a guest spot for more than 72 hours, this rule applies to all guest spots, including disabled parking spots. The disabled parking placard or plate does not give them the right to store their vehicle in a guest parking spot. However, we strongly encourage consulting with legal counsel before towing a vehicle with a disabled parking placard or plate.

Can the association explain to other inquiring residents why someone is receiving a special parking accommodation or variance?

No. The association must keep all information relating to someone’s disability confidential.

This area of law is complicated. A board should carefully consider each reasonable accommodation request and engage in the interactive process to avoid discrimination claims, even if there is limited parking in your community. When in doubt, contact your legal counsel.

Epsten, APC Attorneys, Susan Hawks McClintic & Kieran Purcell Receive National Recognition as CCAL Fellows

Epsten, APC is pleased to announce that Susan (Sue) M. Hawks McClintic, Esq., Managing Shareholder and Kieran J. Purcell, Esq., Shareholder have been granted fellowship in the College of Community Association Lawyers (CCAL). More than 4,000 lawyers practice community association law in the United States, yet fewer than 175 attorneys nationwide can distinguish themselves as CCAL fellows.

Read the Press Release

Reminder: The Deadline to Meet the Requirements of the State’s Responsible Beverage Service Training Program is August 31, 2022

By Dea C. Franck, Esq.

Community associations that maintain an on-premise license with the California Department of Alcoholic Beverage Control (“ABC”) need to be aware that starting on July 1, 2022, the Responsible Beverage Service (RBS) Training Program Act becomes effective (“Act”).

The Act mandates licensees to ensure that their current alcohol servers and managers…

  • register with the ABC,
  • undergo RBS training with an ABC approved RBS training provider,
  • pass an exam, and
  • become RBS certified by Aug. 31, 2022 or within sixty (60) days of employment.

The Act defines an “alcohol server” as someone who takes orders for, pours, or delivers alcoholic beverages to customers and/or who checks customer IDs for the purpose of alcohol beverage service or gaining entrance an ABC on-premise licensed establishment.  An “alcohol manager” is someone who directly hires alcohol servers and/or who trains or oversees alcohol servers at an ABC on-premise licensed establishment. RBS certifications are valid for three years and alcohol certifications must be renewed prior to expiration.

In addition, the Act also requires licensees to maintain records of their alcohol servers’ and managers’ certifications. Licensees can maintain these certification records through the ABC’s online certification system.

Be aware that these certification records are subject to inspection by the ABC and licensees who fail to comply with the Act are subject to disciplinary action by the ABC such as a temporary suspension of one’s license. The ABC will commence enforcement of the Act on September 1, 2022, so if you are a community association with an ABC on-premise license be sure that you understand and timely comply with the requirements of the Act.

For more information regarding the Act for licensees and license administrators, please go to https://www.abc.ca.gov/education/rbs/.