Epsten, APC

Civil Code sections 4040, 4045 and 4050 control the methods of document delivery. Members may be sent notice of delivery via first class mail, postage prepaid, registered mail, express mail, or overnight delivery. In addition, members may receive their notices and deliveries via electronic means, such as email and facsimile, if they have consented in writing.

A Declarant is, typically, an individual or entity who establishes a residential or commercial project and creates an association to manage it. A Declarant will draft and record a set of CC&Rs against the property comprising the project and will usually reserve certain rights to itself as a Declarant including the right to appoint a majority of directors and make unilateral (i) amendments to the governing documents and (ii) annexations of additional property into an association. A Declarant may also exempt itself from certain provisions in the governing documents including architectural control. A Declarant may also be a homeowner-controlled association that restates its CC&Rs and/or bylaws (i.e., completely replaces its existing CC&Rs and/or bylaws with a new set). A Declarant may also be a developer.

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).

Under the Davis-Stirling Act, a “declaration” refers to the recorded statement of restrictions (“CC&Rs”) binding all owners within the common interest development. See also CC&Rs.

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.

“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.

The responsibility to paint, maintain, repair or replace an exterior door, the door frame and the door hardware is typically defined in the governing documents. In a typical airspace condominium, the door (except for the interior surface) is usually “common area,” which is normally the association’s responsibility, but the governing documents can modify this assignment.

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.

Due diligence is the reasonable care, investigation, and inquiry expected of a director of an association in making a business decisions on behalf of the association. This may include tasks such as investigating homeowner complaints, consulting with experts, or obtaining multiple bids for services related to the repair and maintenance of the common area.

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.