Author: Jacquelyn Quinn

Using Common Area Facilities for Private or Group Lessons

Many associations have common area amenities and facilities available to their residents and their guests. Such amenities and facilities may include fitness centers, pools, tennis, and other sport courts. From time to time, associations may receive a request from a resident to use a common area facility for private or group lessons with their personal instructors. While it might seem like a simple request and boards may be eager to allow such use of the common area facilities, associations should be aware of potential issues that can accompany such use. Whether a resident wishes to perfect their backstroke, backhand, or back swat, below are a few issues to consider when deliberating on whether to allow a resident to use a common area facility for private lessons with a personal instructor:

Liability: Since the association typically operates, manages, and controls the common area facilities, it is responsible for ensuring the facilities are properly maintained and safe for use. The association could be held liable for damage or injury to an instructor or participant during a private lesson caused by missed repairs or poor maintenance of the facilities. While similar concerns may arise when a resident chooses to use the common area facilities without an instructor, boards should consult their association’s legal counsel prior to allowing common area facilities to be used for private lessons.
Americans with Disabilities Act (“ADA”): Generally, an association’s common areas are not subject to the ADA unless they are open to the general public. Allowing non-residents to take group lessons at the association’s common area facilities may open the association to an argument that the facilities are “public accommodations” subject to the ADA. If the facilities are deemed to be subject to the ADA, an association could be required to make costly modifications to the facilities in order to comply with ADA requirements and an association could open itself to claims it violated the ADA.
Insurance & Licensing: Consult with the association’s qualified insurance expert on the risks and insurance implications of allowing private instruction in common area facilities. Does the association have adequate coverage in the event of any incidents? Will permitting this type of use of the common area facilities be considered a commercial use and affect the association’s coverage? Also, consider requiring any instructor to provide proof of any necessary licensing or certification, adequate liability insurance coverage, and requiring the association and management be named as an additional insured on the instructor’s policies.
Waivers/Releases: Consider requiring instructors and participants to sign agreements releasing the association, its directors, officers, management, etc. from liability arising from any injury that may occur in a common area facility during private lessons. If minors are receiving the lessons, a special waiver signed by a parent or guardian may also be necessary. Associations might also consider requiring an instructor to indemnify the association and board against any claims or lawsuits filed against them resulting from use of the common area facilities. While these types of agreements may not provide complete protection for associations in all situations, they may be better than nothing if the association allows certain private lessons.
Register/Rules: The right to use common area facilities is generally subject to reasonable rules and regulations adopted by the board. Boards may consider adopting reasonable rules and regulations regarding private lessons at common area facilities. Such rules might include requiring the insurance coverage and waivers discussed above, prohibiting instructors from using association facilities without a resident sponsor, requiring all participants be residents of the community, requiring reservations, and clarifying that private lessons may not hinder other residents and their guests from using the facilities at any time. Adopting reasonable rules pertaining to the use of common area facilities for private lessons gives a board something to enforce in the event a resident or resident’s instructor fails to comply.

In light of the potential for liability and other serious considerations discussed above, a board may find it prudent to simply prohibit owners from using the community’s common area facilities for certain private or group lessons. However, the decision is ultimately up to the board.

** This article was published on CAI-Coachella Valley – 2024 HOA Living Magazine (February Issue).

June 12th Sector Reopenings

By Jacquelyn E. Quinn, Esq.

Starting no sooner than June 12, 2020, and only upon the approval of your county‘s health officer, certain specific amenities in your community may be allowed to reopen. As of the date of this newsletter Riverside, San Diego, San Bernardino, Orange, Los Angeles and Kern Counties have approved additional reopening.

The State has issued guidelines to reopen fitness facilities (including pools) and outdoor recreational facilities. Community associations should only reopen those amenities specified in the State’s industry guidelines and should follow the applicable State guidelines, CDC guidelines, and any requirements/guidelines issued by your county and city.

CDC guidelines can be found here.
State guidelines can be found here.
San Diego County reopening guidelines can be found here.
Riverside County reopening guidelines can be found here and then scroll down to Toolkits and click on the box marked “Business.”
San Bernardino County reopening guidelines can be found here.
Orange County announced that it will reopen various sectors starting June 12, 2020, but as of the date of this newsletter no updated guidelines from Orange County have been posted. We anticipate that such guidelines will be posted here.
Los Angeles County announced that it will reopen various sectors starting June 12, 2020, but as of the date of this newsletter no updated guidelines from Los Angeles County have been posted. We anticipate that such guidelines will be posted here.
Kern County reopening guidelines can be found here.

This is a rapidly evolving topic, so boards and community managers should review these various governmental guidelines and talk to your association’s experts regarding implementation of these guidelines, e.g. HVAC professionals, janitorial/cleaning professionals, pool maintenance professionals, and legal counsel.

Additionally, please be aware that stagnant or standing water in a plumbing system may carry a risk of Legionnaires’ disease. Because common area amenities have been shut down, associations need to ensure that the water systems for these facilities are safe to use. You should review the CDC guidelines on this issue and follow the recommendations therein. Those CDC guidelines and training can be found here and here.

Reminder: The guidelines and other regulations change frequently. Be sure to keep up to date by checking the state and county websites on a regular basis and monitoring press alerts for new announcements.

Keywords: COVID-19, Coronavirus

San Diego County Guidance to Prepare for Re-Opening Association Pools When Permitted

By Jacquelyn E. Quinn, Esq.

San Diego County has not yet approved the re-opening of association pools, but the San Diego County Department of Environmental Health (DEH) has issued guidance in preparation for when pools are approved to re-open in Stage 3 of California’s Resilience Roadmap.

The guidelines can be found here: Public Swimming Operations During COVID-19 Guidance. According to the San Diego DEH these guidelines are consistent with the recommendations from the Centers for Disease Control and Prevention. Although, the guidelines could be modified by the California Department of Public Health when the State issues its guidance for re-opening pools.

The guidelines require increased disinfection and social distancing to protect pool facility users. Additionally, when pools are approved to re-open, your association will need to complete and post a copy of the County’s Safe Re-Opening Plan. Section E of the Safe Re-Opening Plan must be filled in with a description of the precautions your association has implemented to meet the measures in the Public Swimming Operations During COVID-19 Guidance.

Keywords: COVID-19, Coronavirus

Census Taker Access

By Jacquelyn E. Quinn, Esq.

It’s almost time for the 2020 Census to begin and associations may find census takers seeking access to the community or information regarding its occupants. Households will receive an invitation to respond to the 2020 Census between March 12-20. If a household does not respond to the 2020 Census, a census taker may follow up in person to collect their response. This will occur between May-July.

Then comes the question – must associations grant census takers access to the community to gather information from occupants? In short, yes.

13 U.S. Code Section 223 provides:

Whoever, being the owner, proprietor, manager, superintendent, or agent of any hotel, apartment house, boarding or lodging house, tenement, or other building, refuses or willfully neglects, when requested . . . to furnish the names of the occupants . . . or to give free ingress thereto and egress therefrom to any duly accredited [census taker] . . . shall be fined not more than $500.

An association is required to cooperate with census takers and cannot deny access into the community or giving the names of the occupants of the premises to any census taker who has shown proper identification. Failure to grant access to the community or furnish names of occupants requested by a census taker may result in substantial fines. The association may utilize whatever security measures it has in place (e.g., call resident and announce visitor). It will be up to an individual resident if they choose to open their door or not.

Associations can and should require evidence that the person is an official census taker. All census takers will be issued a census badge, which includes their name, photograph, Department of Commerce watermark, and an expiration date. Community Association Managers, patrol staff, or homeowners may ask to see a census taker’s badge. When in doubt, contact the nearest Regional Census Center to verify a census taker’s status. https://www.census.gov/about/regions/los-angeles/contact/identify.html

In order to comply with federal regulations, make sure your Community Association Managers, patrol staff, and gate and lobby attendants (if any) understand that access must be granted to census takers. They are allowed to knock on doors, ring doorbells, use call boxes, etc. Also, census takers are within their rights to ask associations to verify occupancy information (e.g., name and address). While you’re not expected to supply the information immediately, you should provide the requested name and address within a reasonable amount of time.

Please be aware that there is no requirement to provide any information to a census taker over the phone. If the association receives a phone call from a person claiming to be a census taker requesting occupancy information the association should not provide such information over the phone.

ADUs and Community Associations

By Jacquelyn E. Quinn, Esq.

Can my association prohibit Accessory Dwelling Units (“ADU”) or Junior Accessory Dwelling Units (“JADU”) construction?

If your association is a planned development, no.

If your association is a condominium project, for now, yes.

On January 1, 2020, Civil Code section 4751 took effect and prohibits planned development associations from effectively prohibiting or “unreasonably” restricting the construction or use of an ADU or JADU on a lot zoned for single-family residential use. By contrast, condominium associations are permitted to prohibit the construction of an ADU or JADU.

Therefore, any restriction in the CC&Rs, rules and regulations, or any other governing document, of a planned development is superseded by Section 4751. For example, a requirement that garages must be used solely to park vehicles and may not be kept in a manner that interferes with the ability to park vehicles no longer provides grounds for prohibiting the conversion of a garage to an ADU.

The newest Civil Code section addressing ADUs and JADUs is Section 714.3, effective January 1, 2022, which also prohibits a non-CID planned development association from enforcing or imposing any provision in its governing documents that effectively prohibits or unreasonably restricts the construction or use of a properly-permitted ADU or JADU on a single family lot, including garage conversions. This appears to clean-up what was likely an oversight when Civil Code section 4751 was signed.

If you have any questions concerning whether your association is a planned development please contact your legal counsel.

What is an ADU?

An ADU is defined by California Government Code section 65852.2(j)(1) as an attached or detached residential dwelling unit located on the same legal lot as the proposed or existing single-family residence, which provides complete independent living facilities for one or more persons. An ADU must have permanent provisions for living, sleeping, eating, cooking, and sanitation.

A detached ADU is most commonly a separately constructed structure in a back or side yard. An attached ADU is often times an addition to the primary dwelling. Garages, carports or existing accessory structures (e.g., pool houses or work sheds) located on the same legal lot as a single-family residence may also be converted to an ADU. In addition, an efficiency unit and a manufactured home (i.e., mobile home) are also included in the definition of an ADU.

What is a JADU?

A JADU is defined by California Government Code section 65852.22 as a unit that is contained entirely within a proposed or existing primary single-family structure. A JADU must not exceed five hundred (500) square feet. In addition, a JADU must include a separate entrance from the main entrance to the primary dwelling.

A JADU must include an efficiency kitchen, including a cooking facility with appliances and food preparation counter and storage cabinets that are of reasonable size in relation to the size of the JADU. A JADU may include separate sanitation facilities (i.e., a bathroom), or may share sanitation facilities with the primary dwelling.

What sorts of restrictions can a Board enforce against ADU construction?

Civil Code section 4751 allows an association to place “reasonable restrictions” on ADUs and JADUs. For purposes of section 4751, a “reasonable restriction” is one that does not unreasonably increase the cost to construct an ADU or JADU, or effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU or JADU consistent with Government Code sections 65852.2 or 65852.22.

Civil Code section 4751 offers little guidance as to what sort of restrictions are “reasonable,” but the law does not require an association to follow the same exact standards that the city or county has adopted concerning ADUs or junior ADUs. In our view, that leaves open the option for an association to adopt its own “reasonable restrictions” that may differ from or be more restrictive than those of local agencies.

Such “reasonable restrictions” may include requirements related to aesthetics and design of the new unit, submitting and receiving approval of an architectural application, size of the new unit, use of shared facilities in the community, and parking.

Can ADUs and JADUs be rented?

Yes. The Legislature’s stated intent when adopting Section 4751 was to permit the rental of ADUs for a period of more than 30 days (e.g., no short-term rentals). Civil Code section 4741 also prohibits associations from prohibiting or unreasonably restricting the rental or leasing of any ADU or JADU. Associations with rental restrictions in its CC&Rs may impose the same rental restrictions on ADUs as long as those restrictions comply with section 4741.

Also, effective January 1, 2020, local agencies may no longer impose a requirement that an ADU or primary dwelling be owner-occupied. Therefore, a situation may arise where both the primary dwelling and ADU are occupied by non-owner residents. However, a requirement that either the primary dwelling or JADU be owner-occupied is still permitted.

Can ADUs be sold separately from the primary dwelling?

Generally, no. Under the vast majority of circumstances, an ADU must never be sold separately from the primary dwelling. However, under a new law effective January 1, 2022, local agencies must allow ADUs to be sold separately from the primary residence if the ADU or the primary dwelling was built or developed by a qualified non-profit corporation to be sold to qualified low-income families who participate in a special no-interest loan program. As a condition of the sale, the buyers of both dwellings must enter into a recorded tenancy in common agreement with provisions that ensure the property will be preserved as low-income housing and will be owner-occupied. This very limited exemption should not impact established communities.

What kind of size restrictions can be imposed on ADUs?

Local agencies may establish minimum and maximum unit size requirements for both attached and detached ADUs. However, beginning January 1, 2020, local agencies may not establish a minimum square footage requirement that prohibits an efficiency unit or a maximum square footage requirement that is less than eight hundred and fifty (850) square feet, or one-thousand (1,000) square feet for an ADU that provides more than one (1) bedroom.

In addition, any other size requirement set by a local agency, (or size based up on a percentage of the primary dwelling, floor area ratio, open space, and minimum lot size) must allow for at least an eight hundred (800) square foot ADU that is at least sixteen (16) feet in height with four (4) foot side and rear year setbacks.

By definition, JADUs must not exceed five hundred (500) square feet.

What parking requirements may be imposed on ADUs?

Parking is a challenge for many associations even without ADU construction and may require specific inquires to determine the best solutions.

Local agencies are permitted to require one off-street parking space per ADU or per bedroom, whichever is less. These spaces may be provided as tandem parking on a driveway.

However, a local agency may not impose parking requirements for an ADU when (1) the ADU is located with one-half mile walking distance of public transit; (2) the ADU is located within an architecturally and historically significant historic district; (3) the ADU is part of the primary residence or a permitted accessory structure; (4) on-street parking permits are required but not offered to the ADU occupant; and (5) a car share vehicle is located within one block of the ADU.

In addition, effective January 1, 2020, a local agency may not require that off-street parking lost by conversion of a garage or carport to an ADU or JADU be replaced.

If your association is located within the coastal zone it is possible the city’s local coastal program land use plan specifies parking requirements that differ from the government code and may require replacement of off-street parking lost by conversion of a garage or carport to ensure compliance with the provisions of the California Coast Act of 1976. Please review your city’s local ADU and JADU ordinances.

What are the next steps to manage ADU and JADU requests?

Section 4751 allows associations to adopt “reasonable restrictions” concerning ADU and JADU construction. If your association is a planned development, we recommend you contact your legal counsel to discuss options and prepare ADU guidelines. Once ADU guidelines have been prepared the Board will need to provide general notice of the proposed guidelines and allow for member comment pursuant to Civil Code section 4360.

AB 670: Accessory Dwelling Units (ADUs)

By Jacquelyn E. Quinn, Esq.

In recent years, the California Legislature has enacted several laws aimed at limiting the authority of local agencies to restrict accessory dwelling units (“ADUs”) and junior ADUs and streamlining the construction of ADUs and junior ADUs. Up until now, state law hasn’t addressed private restrictions on ADUs, such as in an association’s CC&Rs.

However, effective January 1, 2020, AB 670 adds section 4751 to the Common Interest Development Act that will prohibit associations from “unreasonably” restricting the construction of an ADU or junior ADU on a lot zoned for single-family residential use. (An association’s governing documents may continue to prohibit the construction of an ADU on a lot zoned for multi-family residential use. ) The intent of the Legislature in passing this bill is to encourage the construction of ADUs or junior ADUs that are either owner-occupied or are used for rentals for longer than thirty (30) days.

An ADU, sometimes referred to as mother-in-law units or granny flats, is a dwelling unit designed to serve as independent living quarters for at least one person. These dwelling units can be both attached and detached from the primary dwelling unit. A junior ADU is simply a unit that is 500 square feet in size or less, attached to the home, and has entrances from within the primary dwelling unit as well as from outside. A garage, carport or covered parking structure on the lot may also be converted to an ADU or junior ADU.

AB 670 makes any governing document void and unenforceable to the extent that it prohibits, or effectively prohibits, the construction or use of ADUs or junior ADUs. However, AB 670 does allow an association to place “reasonable restrictions” on ADUs and junior ADUs in common interest developments, as long as the restrictions do not discourage or effectively prohibit ADU or junior ADU construction or unreasonably increase the cost to construct them.

Although the new law does not define what sort of restrictions are “reasonable,” the law does not require an association to follow the same exact standards that the city or county has adopted concerning ADUs or junior ADUs, leaving open the option for an association to adopt its own “reasonable restrictions” that may differ from those of local agencies. Such “reasonable restrictions” may include requirements related to aesthetics and design of the new unit, submitting and receiving approval of an architectural application, size of the new unit, use of shared facilities in the community, and parking.

There are bound to be disagreements over what constitutes a “reasonable restriction.” What constitutes a “reasonable restriction” for one association may not qualify as “reasonable” for another. Therefore, it is important for associations to conduct a diligent inquiry into what restrictions are truly reasonable for their community and members before adopting ADU guidelines for members to follow.

With respect to new provisions that local agencies must follow, sections 65852.2 and 65852.22 of the Government Code set forth specific standards that local agencies must follow in adopting local ordinances related to ADUs and junior ADUs. For instance, local ordinances cannot establish a maximum square footage requirement for an ADU that is less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom. The local ordinance also cannot require a property owner who built an ADU to occupy the primary home on the property or the ADU. In addition, a local ordinance may not impose a requirement to replace lost parking spaces somewhere else on the property when converting a garage to an ADU. While an association may adopt ADU restrictions that differ from local regulations, it is important and helpful for associations to be aware of their city’s or county’s local ordinances concerning ADUs and the ways in which the association’s restrictions vary, as residents are bound to raise comparisons.

Q&A. Can an association be responsible for damage to owner-maintained driveways and walkways caused by tree roots located on the owner’s lot but maintained by the association as part of its common maintenance responsibilities?

A: The association may be liable for damage caused to an owner’s property by the roots of the tree under a theory of negligence. However, the association would not normally be liable under a claim of negligence unless it was on notice that the tree roots were causing damage and thereafter the association failed to timely remedy the problem. Negligence occurs when an association, through its board of directors, knows or should know there is a risk of property damage and fails to take reasonable action to prevent such damage. To prevail on a negligence claim, the owner would have to prove the tree roots caused damage to his or her property and the association was negligent in maintaining its roots. The relevant inquiry, therefore, is whether the association as acted reasonably in maintaining the trees and corresponding roots. An association that has landscaping responsibilities should consult a licensed landscape contractor and make regular inspections of the association maintained trees, and when appropriate consult with an arborist. If the association regularly adheres to the recommendations of its licensed landscape contractor and arborist with regard to maintenance and upkeep of the trees and roots it will be difficult to argue the association was negligent in its maintenance. – Jacquelyn E. Quinn, Esq.

Welcome Jacquelyn Quinn!

Please join us in welcoming Jacquelyn Quinn as an Associate Attorney in our San Diego office Transactional Department.

Jacquelyn obtained her J.D. from Boston University School of Law in 2016 and has a B.A. in Psychology with a Minor in Human Development from U.C. Davis. She is experienced in handling complex transactional and litigation cases and is excited to join our EG&H team.