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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

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.

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

Karyn A. Larko, Esq.

Senior Attorney 

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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.

When In Doubt, Check It Out: Homeowners’ Rights to Inspect Association Records

Victoria R. Minor, Esq.

Attorney

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Practices: Community Association Counsel 

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In California, homeowners and members of homeowners associations (HOAs) have specific rights to inspect and copy association records. These rights are established under various sections of the California Civil Code and the California Corporations Code.

Under California Civil Code Section 5205, association records must be made available for inspection and copying by any member or their designated representative.  The records should be accessible at the association’s business office or another agreed-upon location within the common interest development.  If no agreement is reached, the association can deliver copies of the records to the member. Cal. Civ. Code §5205.

However, like many things in life, the inspection of records comes at a cost.  The association may charge for the direct and actual costs of copying and mailing the documents, and for the time involved in redacting certain information, up to specified limits (an amount not in excess of ten dollars ($10) per hour, and not to exceed two hundred dollars ($200) total per written request).  Cal. Civ. Code §5205(g).

 

What Records Can Be Inspected?

Members have the right to inspect records for the current fiscal year and the previous two fiscal years. Cal. Civ. Code §5210(a)(1).  Minutes of member and board meetings are permanently subject to inspection. Cal. Civ. Code §5210(a)(2).

Members also have the right to inspect and copy membership lists so long as a written demand is made upon the association to do so.  Cal Corp Code § 8330.  Membership lists are records maintained by the association which include names, property addresses, mailing addresses, and email addresses of members that have not opted out of providing such information.  Cal. Civ. Code §5200(a)(9).  Once the written demand to inspect the membership list has been made, the association then has five business days to make the membership list available for inspection and copying.  Cal Corp. Code § 8330. 

However, certain information may be withheld or redacted by the association. This includes information likely to lead to identity theft or fraud, privileged information, and records that compromise individual privacy. Cal. Civ. Code §5215.  Rather than providing a requesting member a copy of the membership list, Corporations Code Section 8330(c) allows the association to provide the requesting member an alternative method of contacting other members.  Additionally, the use of association records for commercial purposes or any purpose not related to a member’s interest is prohibited. Cal. Civ. Code §5230.

 

What If The Association Withholds Access To Records?

If an association unreasonably withholds access to records, the member can bring an action to enforce their rights.  Courts may award reasonable costs and expenses, including reasonable attorney’s fees to the member, and may impose a civil penalty of up to $500 for each denied request.  Cal. Civ. Code §5235(a).

 

Conclusion  

In summary, California law provides robust rights for homeowners to inspect and copy HOA records, with specific provisions to ensure transparency while protecting sensitive information. These rights are enforceable through legal action if necessary, ensuring that members can access the information they need while maintaining privacy and security.

The Right to be Heard: A Timely Reminder of Civil Code Section 4515

Karyn A. Larko, Esq.

Senior Attorney 

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Practices: Community Association Counsel 

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On January 1, 2023, amended California Civil Code section 4515 went into effect. The intent of section 4515 is to ensure that owners and residents of common interest developments can peacefully assemble within the community and freely communicate with others regarding matters related to the association and common interest development living, as well as other social, political, and educational purposes (“Matters of Public Interest”).

Specifically, section 4515 gives members and residents of an association the following rights:

        • The right to peacefully assemble or meet with other members, residents, and invitees or guests to discuss during reasonable hours and in a reasonable manner Matters of Public Interest, including matters relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes;
        • The right to invite public officials, candidates for public office, and representatives of homeowner organizations to meet with members, residents, and their invitees or guests, and speak on Matters of Public Interest;
        • The right to use the common area, including any meeting room or clubhouse when available, or, with the consent of the owner, the owner’s lot or unit, for an assembly or meeting related to Matters of Public Interest. Of note, an association cannot require members and residents to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy in exchange for being able to use the common area for the assemblies and meetings listed in items 1 through 3 of this article;
        • The right to canvass and petition the members, the residents and board members regarding Matters of Public Interest, at reasonable hours and in a reasonable manner;
        • The right to distribute or circulate, without association permission, information on Matters of Public Interest at reasonable hours and in a reasonable manner; and
        • The right to use social media or other online resources to discuss any Matters of Public Interest even if the content is critical of the association or its governance.

Civil Code section 4515 does not require an association to allow members and residents to display signs, posters, banners, or flags in the common area, or use the association’s website to express their opinions on Matters of Public Interest. Nor does this law require an association to provide members and residents with social media or other online platforms where they can express their opinions on Matters of Public Interest.

It is important to note that if an association’s governing documents attempt to prohibit members and residents from exercising their rights under Civil Code section 4515, or if an association otherwise attempts to hinder members and residents from exercising these rights, the association could face liability, including a civil penalty of up to $500 for each violation.

 

PRACTICE TIPS:

        • Establish a system for reserving the clubhouse, meeting room or other areas suitable for meetings, and keep track of when these areas are reserved so you can promptly respond to requests to use these areas.
        • If the association generally requires members and residents to pay a fee, pay a deposit or obtain liability insurance to reserve the use of common area, include on the reservation form an area for the reserving party to identify the planned use of the common area, so you know whether these requirements must be waived.
        • Never retaliate against a member or resident for exercising their rights under Civil Code section 4515, even if they were unfairly critical of the board or management.

 

 

Reservation of Rights Letters Explained: How Should Your Association Respond?

Your Association gets sued by a homeowner. You reach out to your insurance company to let them know about the lawsuit then you sit back and relax because insurance is going to cover everything, right? Do not get too comfortable!

Insurance companies may not cover everything, or anything, that you believe they should. How do you know what the carrier is going to cover during the course of this particular lawsuit? Look no further than the reservation of rights (“ROR”) letter. Your insurance company is required by law to provide you, as its insured, with a reservation of rights letter detailing all possible limitations on coverage that the insurer may rely on in connection with adjusting the claim or suit.

Basic Definitions

Before we can understand what the insurance company is saying in its ROR letter, we need to understand the jargon that’s typically included in the letter. The following definitions provide the basics.

        • Duty to Defend: Used to describe an insurer’s obligation to provide you with a defense to claims made under an insurance policy. As a general rule, an insurer’s duty to defend you arises when there is potential for coverage under a policy.
        • Duty to Indemnify: Used to describe an insurer’s obligation to pay the claim, by funding a settlement or paying a judgment against the insured. Unlike the duty to defend, which is typically determined at the outset of the litigation, the duty to indemnify arises when the facts establish that there is a covered loss under the policy.
        • Tender: Under the terms of your insurance policy, you must give your insurance carrier notice of any claim or suit being made against the Association. Such notice includes a demand for defense (i.e., duty to defend) and indemnity (i.e., duty to indemnify) under the policy.
        • Trigger or Coverage Trigger: Refers to the event that must occur before a liability policy applies to a given loss.

What is a Reservation of Rights Letter?

The ROR letter will be a letter from your insurance company which notifies you of the carrier’s coverage position, including any limitations on coverage that may act as a complete or partial bar to coverage. The ROR letter also affords the insurer an opportunity to undertake a more thorough factual investigation into the claim without waiving its rights to deny or limit coverage at a later date.

ROR letters vary in form depending upon the insurance company but, in general, include a summary of the factual background surrounding the current claim, a detailed analysis of the applicable insuring agreement and applicable exclusions (i.e., intentional acts, breach of contract, no monetary damages being sought) and endorsements which may impact coverage, a reservation of rights, and, in some instances, a denial of coverage for some or all of the claims. Since ROR letters may be long and winding with insurance terms and phrases peppered throughout, they are difficult to understand.

What are the Insurance Company’s Duties (Refer to Definitions Above)?

The duties of an insurance company are set forth in the Insuring Agreement section of the policy. Typically, an insurer has two distinct duties – the “duty to defend” and the “duty to indemnify.” In California, the duty to defend is “triggered” when there is any possibility, no matter how remote, that the claim would be covered under the policy. Where your carrier defends an entire action where only a portion of the claims are covered, the carrier may seek reimbursement from you for any defense fees and costs incurred in defending the non-covered claims.

Under the typical scenario where an insured is faced with a third-party claim for monetary damages, the carrier is obligated to defend the action if, under the facts known, there is a possibility of coverage under the policy. Once a carrier’s defense obligations have been “triggered”, the carrier is obligated to hire counsel, retain experts, investigate the claim, pay defense costs, and defend the case through disposition.

The duty to indemnify is the insurance company’s duty to pay any monetary judgment (i.e., damages) rendered against an insured for a covered loss. A carrier’s indemnity obligations are limited by the terms of the insurance contract and should be detailed in the ROR letter.

Why is an ROR Letter Important?

California’s insurance regulations require an insurance company to provide you with a written response to a request for defense and/or indemnity. That response typically comes in the form of the ROR letter which puts you on notice of any limitations or exclusions to coverage. Knowing what is, and more importantly what is not, covered under the policy is crucial to making strategic decisions regarding the handling of the claim. By way of example, the ROR letter can assist the Association and its defense counsel in evaluating a settlement demand and determining whether or not it is in the Association’s best interests to settle a claim. However, it is worth noting that the decision to settle typically rests entirely with the insurance company.

The ROR letter is also how an insurance company reserves its rights to either deny or limit coverage under the policy and to recover defense fees and costs expended in connection with the defense or settlement of uncovered claims. Under California law, the carrier’s coverage defenses may be waived where the insured relies upon the carrier’s failure to specifically reserve its rights under the policy.

What Should You Do if Your Association Receives an ROR Letter?

Receiving an ROR letter from an insurance company may feel intimidating. However, knowing what to do and what to look for when you receive an ROR letter are crucial in getting a handle on the carrier’s coverage determination.

      1. Your first step when you receive an ROR letter should be to share it with your attorney.
      2. The next step is to carefully review the policy exclusions and endorsements and discuss them with your insurance professional so that you can work within your budget to buy the broadest coverage available.

Do Your Governing Documents Need a Refresh?

Rhonda R. Goldblatt, Esq.

Senior Attorney

858.527.0111
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Practice: Community Association Counsel

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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.  Board should keep in mind that restating these documents typically requires membership approval. Restated documents should also be prepared by a qualified attorney, and must be approved in a confidential vote, so the project can be relatively costly.  Below are some considerations 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 within 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 associations. 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 of and procedure for restating their governing documents. Everyone deserves a makeover sometimes!

 

Tiny but Mighty: Managing Legal Compliance for Small Community Associations

Rhonda R. Goldblatt, Esq.

Senior Attorney

858.527.0111
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Practice: Community Association Counsel

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** This article was published on CAI-SD’s San Diego Community Insider Magazine – Fall 2024 Issue.

 

California community associations are subject to a myriad of regulations, on topics ranging from noticing meetings, conducting director elections, handling finances, performing common area maintenance, and more.  Larger community associations with bigger budgets likely have more resources and management options to assist the board in complying with these regulations.  By contrast, smaller community associations get the short end of the stick, so to speak.  Smaller community associations are subject to the same legal standards – the law does not relax for or exempt smaller communities from compliance – with fewer resources on hand to meet those legal standards.

In that case, what is a smaller community to do?  Failing to comply with applicable statutory and governing document requirements can lead to liability.  At the same time, each association must work within the limits of its resources.  Smaller community associations can therefore consider the following ideas to make compliance easier to achieve:

  1. Governance – Smaller community associations can consider amending their governing documents to:
    1. Lower quorum for membership meetings so members who choose not to participate cannot derail any action.
    2. For very small associations, allow each separate interest to appoint a representative to serve on the board of directors, thereby avoiding costly elections.
    3. Reduce the frequency of board meetings to every other month, or once a quarter.
  1. Contracting – Smaller community associations may want to set up contracting protocols to automate retaining vendors to the extent possible, including creating:
    1. Checklists of required provisions in vendor contracts (dispute resolution mechanisms, firm start and end dates for the work, etc.).
    2. Written screening processes for vendors, including requiring proof of insurance, licensing and qualifications.
  1. Finances – Smaller community associations may want to set themselves up for success in terms of financial management by:
    1. Making association financials available online, for convenient director review.
    2. Creating a simple budget template for annual distribution.
  1. Conflict Resolution – Smaller community associations’ lack of compliance often ends up highlighted during individual homeowner conflicts. Therefore, smaller communities may want to consider heading off homeowner conflicts at the start by taking advantage of free community mediation programs, scheduling internal dispute resolution early on, and keeping all homeowners informed about the association’s operation to give them a sense of ownership in the community.  Smaller community associations should also carefully consider if and when to retain an attorney to assist with resolving a dispute, before a heated conflict spirals into a lawsuit.
  2. Insurance – Insurance coverage is key for associations with limited funds, in case of a catastrophic loss to the common area and/or an expensive lawsuit. Smaller community associations, just like larger associations, should strongly consider meeting with their insurance professionals once a year to ensure they have coverage in place as required by the law, the governing documents, and best practices.

City of Carlsbad Bans Smoking in Multiunit Residences – Including Some of Yours!

Jacquelyn E. Quinn, Esq.

Senior Attorney

858.527.0111
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Practices: Community Association Counsel | Commercial CID

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The City of Carlsbad recently approved a new ordinance that, beginning January 1, 2025, will ban all smoking and vaping of any kind anywhere on the premises of a multiunit residential development located within the City of Carlsbad, including inside private dwellings, on private balconies, decks, garages, patios and common areas of a common interest development.

While it is certainly a win for residential communities desiring a smoke free environment, the ordinance requires associations subject to the ordinance to take specific steps and impose certain enforcement measures to ensure a level of compliance with this ordinance on or before January 1, 2025.

Applies to Multiunit Residential Developments in Carlsbad Only

This new ordinance applies only to multiunit residential development associations located within the City of Carlsbad.

What is a multiunit residential development? A “multiunit residential development” includes a property containing three or more units, including condominium and planned development common interest developments. Exceptions include mobile home parks, single-family homes designed as free-standing units which are separate (detached) from any other unit, and most single-family homes with an accessory dwelling unit and/or junior accessory dwelling unit on the lot.

Therefore, if your association includes units or single-family homes that are attached in any way (i.e., shared walls), they are likely subject to this ordinance.

What Type of Smoking is Banned?

The ordinance defines “smoking” as inhaling, exhaling, or burning, any tobacco, nicotine, cannabis or plant product, or other substance, whether natural or synthetic; (2) carrying any lighted, heated or activated tobacco, nicotine, marijuana, or plant product, or other substance, whether natural or synthetic, intended for inhalation; or (3) using an “electronic smoking device.”

An “electronic smoking device” is defined to include any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.

Again, the ban is broad and appears to encompass all smoking and vaping of any kind.

Where is Smoking Banned?

      • In private dwellings and any associated exclusive-use area;
      • Private balconies;
      • Porches;
      • Decks;
      • Patios;
      • Common areas (except those designated as smoking areas).

Designated Smoking Areas

An association is not required to have or create designated smoking areas under this ordinance, but if it has, or wishes to create these areas, they must meet the following conditions:

      • An unenclosed area;
      • Be at least 25 feet away from any (1) doorway, window, opening or other vent into an enclosed area; (2) enclosed or unenclosed recreation area such as a tennis court, swimming pool and picnic area; or (3) enclosed or unenclosed area primarily used by children such as a playground;
      • Have a clearly marked perimeter;
      • Be identified by conspicuous signs showing it is a designated smoking area;
      • Have receptacles designed for and primarily used for disposal of smoking waste and that are maintained free of smoking-related litter, including cigarette butts; and
      • Must not overlap with any area in which smoking is otherwise prohibited by applicable law.

Actions for Associations to Take

Associations subject to this ordinance must do the following:

      • Notice: On or before January 1, 2025, provide written notice to all unit owners stating: (1) smoking is prohibited in units, including balconies, porches, decks or patios, as of January 1, 2025 and (2) smoking is prohibited in all common areas, expect in specifically designated smoking areas as of January 1, 2025.
      • Common Area Signage: On or before January 1, 2025, post and maintain clear and unambiguous “No Smoking” signs at entrances and exits of common areas, in sufficient numbers and locations, and in conspicuous places to make it obvious to a reasonable person that smoking is prohibited.
      • Violations: Beginning January 1, 2025, when an association has knowledge of a violation, it must take reasonable steps to investigate and enforce the regulation, including written notice to the resident of the violation, a request to cease and desist, potential action if the violation is not corrected (i.e., hearing, possible fines, enforcement of ordinance, etc.), and resources provided by the city to assist with nicotine dependence.
      • CC&R Amendments: Beginning January 1, 2025, any new or amended CC&Rs must include specific provisions prohibiting smoking in a unit or common areas, other than a designated smoking area. This does not create an obligation for an association to amend its CC&Rs, but any CC&Rs recorded, amended or restated by an association subject to this law after January 1, 2025 must include these provisions.
      • Ban Smoking Items in Common Areas: Beginning January 1, 2025, prohibit the presence of ashtrays, ashcans or other receptacles designed for or primarily used for disposal of smoking waste within the common area, unless area is designated as a smoking area.

It is also worth noting that unit owners who lease their unit have certain notice and lease requirements they must also comply with under this ordinance. However, the ordinance does not place any obligation on the association to ensure owners’ renting their units comply with these requirements.

Penalties for Failing to Comply

Some good news…if an association fully complies with the requirements placed on it under this ordinance, an owner or occupant will not have a private right of action against an association for any damages suffered due to another occupant’s breach of the smoking ban. The ordinance isn’t necessarily clear on what damages may be placed on an association that fails to comply with those requirements, but best not to find out.

If an occupant violates the ordinance, a court will award damages as follows:

        • Actual damages suffered based on proof (i.e., medical expenses, lost rent, loss of use, etc.); or
        • Statutory damages in the amount of $500 per each violation per day of a continuing violation.
        • A court may also award exemplary damages when the violator is found guilty of oppression, fraud, malice, retaliation or conscious disregard for public health.

The ordinance allows for private enforcement. Meaning an association, landlords and occupants may take legal action against violators on behalf of the general public and themselves.  Due to limited resources, it was stated that the city’s Police Department and Code Enforcement will not be responsible for enforcement. Contact us for more information.