Defamation

“Defamation” is a false statement of “fact,” not privileged, to a third party, which causes injury to the person who is the subject of the statement. “Libel” is the written form of defamation, and “slander” is the oral form. In associations, many statements, though false, are “privileged” (that is, it is permissible to make the statement even though it is false.) However the privilege in association context is generally a “qualified” privilege, that is, the person making the statement must be ignorant of the falsity of the statement. Actions for defamation are generally countered by an “anti-SLAPP” motion. See Anti-SLAPP Motion.

Discrimination

The unlawful denial of rights or privileges of membership or occupancy, usually based on “suspect classification” (i.e., on the basis of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information).

Defects

A failure in a building or land and/or it components which causes the building or land, to suffer damage or not to function as intended. A defect can stem from improper construction, design workmanship and deficiencies in the products used in the construction. Examples of common defects include leaky roofs, improper drainage, defective pipe, improperly sloped pipes, slope failures, cracked foundations, and window leaks. The definition of a defect was further defined by the legislature when it enacted Civil Code Section 896 and 897 which is applicable to residential properties where the seller signed the purchase agreement on or after January 1, 2003.

Distributing Assets to Members

A member receiving cash or other distribution of assets from the association generally receives an adjustment in the member’s basis in the separate interest rather than taxable income. As association is not permitted to distribute its assets to its members when the association is dissolved – in this instance, an association must distribute its assets to another non-profit organization formed for religious, charitable or other public purpose.

Defibrillators

Automatic external defibrillation devices (“AEDs”) have been required for “health studios” for some years. An unanswered question is whether the private gym facilities of an association fall under that definition. (Health & Safety Code §104113) For covered health studios, the owner of the studio is required to have trained personnel onsite for operation of the AED.

Delegates

Delegate systems are found mostly in larger CIDs in which it may be difficult for an association to obtain quorums for annual meetings or the necessary votes to obtain approval of governing document amendments. Delegates typically represent a given geographical area encompassing specified separate interests. When there is a board election or document amendment vote planned, there may be meetings of the members from each delegate district in which the owners cast their votes to direct their delegate how to vote in the board election or on the document amendment. Depending on an association’s governing documents, the delegate will probably get to cast the votes of all the owners who reside in the delegate district. However, under some governing documents, the votes of the entire district are split in proportion to the way the votes were cast by the owners who actually voted. Under other governing documents, all the votes may be cast the way a majority of the owners cast their votes.

Dogs

Domesticated dogs are included within the definition of “pet” in Civil Code section 4715. Associations can adopt reasonable rules or CC&R amendments on the number, breed, behavior, and size of permissible dogs. Insurance companies typically have a list of aggressive dog breeds. Dog owners are liable for the behavior of their dogs and are subject to civil suit for bites and creating a nuisance (e.g., barking).

Derivative Actions

A lawsuit brought by a shareholder of a corporation on behalf of the corporation to enforce or defend a legal right or claim, which the corporation has failed to do. Derivative actions in the context of homeowners associations are lawsuits brought by a member of the association, typically against a member of the board of directors or the entire board of directors, to enforce a legal right of the members of the Association that the board has failed to do or for malfeasance against the board or board member. The person bringing the derivative action cannot allege or recover damages on behalf of him or herself.

Donations

Questions about donations arise in associations mostly in two areas. The first is whether an association may accept a donation from members or anyone else, either during the donor’s lifetime or as a bequest. The second is whether an association can make donations to particular organizations or causes. The answers to both questions are often dependent on what, if anything, the governing documents of the association happen to say the association must, may or may not do. In the first case, there may also be an issue of whether accepting the gift will trigger some obligation on the part of the association to pay taxes on the gift. In the second case, there may also be an effect on the association’s tax exempt status. In both cases, an association should consult both with its accountant about the tax implications and with its legal counsel about whether the action is permissible under its governing documents and the law.