Cigarette smoke is deemed a health hazard by various governmental agencies, and cigarette smoke that emanates from one area of association property to another constitutes a nuisance. Associations are increasingly taking steps, whether by CC&R amendment or rule adoption, to prohibit or restrict smoking in common areas, exclusive use areas and even inside units. The laws establishing smoke-free environments are evolving to support smoke-free condominium associations (at least in common areas).
Condominium Plan
The condominium plan is the underlying document creating condominiums. It is often recorded even before the CC&Rs. The condominium plan should define the various components of an association including unit, common area, exclusive common area, balcony, yard, etc. These documents are often very illuminating when seeking to understand where the association’s maintenance responsibility ends and the owners’ begins. See Article, Condominium Plan: Understanding This Often Overlooked Document.
Davis-Stirling Act
The Davis-Stirling Act was originally passed into law in 1985 with the purpose of creating, governing and guiding homeowners associations. After 28 years of amendments and revisions, the entire Act was re-codified on January 1, 2014. The Act serves as one of the set of laws governing the day-to-day activities of associations. In addition to the Act, the Corporations Code, Civil Code and other miscellaneous statutes provide the framework within which these associations operate.
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.
Equitable Servitudes
When obligations and restrictions imposed in deeds and certain other written agreements meet strict statutory requirements, they are said to “run with the land” and bind successors to the original parties. Other deeds and written agreements that do not meet those statutory requirements are nevertheless enforced as “equitable servitudes” under certain circumstances. The CC&Rs of common interest developments are routinely enforced as equitable servitudes, because the Davis-Stirling Common Interest Act provides that the covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable.
Federal National Mortgage Association
Common known as Freddie Mac, this enterprise was established by Congress to compete with Fannie Mae and provide banks with federal money to finance home mortgages. Freddie Mac purchases loans from lenders. It does not make loans directly to home buyers. Freddie Mac loans requirements can differ from Fannie Mae requirements and are subject to change.
Harassment
An association may seek a civil harassment restraining order on behalf of a director, manager, or employee pursuant to Code of Civil Procedure §527.8, where there has been unlawful violence or where there is a credible threat of violence against the individual seeking the restraining order. See Article, Temporary Restraining Orders & Preliminary Injunctions at Associations.
Joint Ownership
An association’s governing documents will generally provide that if more than one person holds an ownership interest in a separate interest property within the association, each owner shall be a member of the association. However, the voting rights of that separate interest shall only be exercised by one owner at a time. Owners do not vote proportionately based on their ownership interest in the property. The governing documents may also limit the number of owners per separate interest that may simultaneously serve on the board.
Manager/Managing Agent
A manager of a common interest development is a person who “for compensation, or in expectation of compensation, provides or contracts to provide management or financial services, or represents himself or herself to act in the capacity” of providing these services (Bus. & Prof. Code §11501). A real estate license is not required to be community association manager.
Reciprocal Easement
As provided in Civil Code section 4095, a reciprocal easement can be considered “common area” in a planned development. An easement is considered a reciprocal easement if a group of owners have easements across each other’s property for a given purpose. A reciprocal easement would exist if a 30-foot wide road covered the front 15 feet of each owner’s property, and the road provided ingress and egress through an association across the other owners’ property. Another example would be a bridle trail or walking path that all owners have a right to use across the properties of their fellow owners. If a planned development must maintain or share in the cost of maintaining a reciprocal easement, then it can be considered common area in that association.