Secondhand Smoke

Second hand smoke is a health hazard, and smoke that emanates from one area of association property to another constitutes a nuisance. Boards can require smokers to abate the nuisance by smoking in designated areas, installing HEPA filters, sealing wall penetrations, closing windows, etc. An association should amend its CC&Rs to prohibit or restrict smoking in common areas, exclusive use areas and even inside units. (Birke v. Oakwood Worldwide et al. (2009) 169 Cal.App.4th 1540.)

Signature, Reserve Account

Civil Code section 5510 requires the signatures of at least two persons on each withdrawal from the association’s reserves. These two individuals may be either 1) members of the association’s board of directors, or 2) one officer who is not a member of the board of directors and a member of the board of directors. These signature requirements are in place to prevent potential theft and embezzlement.

Standing to Sue

Pursuant to Civil Code section 5980 an association has standing to institute, defend, settle or otherwise intervene in litigation, arbitration, mediation, or administrative proceedings in its own name, without joining its members individually, in matters involving enforcement of the governing documents, damage to the common area, damage to separate interest that the association is obligated to maintain or repair, or damage to separate interest that arises out of or is integrally related to damage to the common area or separate interest the association is obligated to maintain or repair.

Secret Ballots

Certain votes must be conducted by secret ballots, such as elections regarding assessments legally requiring a vote, election and removal of members of the association board of directors, and amendments to the governing documents. Unless an exception applies, the grant of exclusive use of the common area shall also be held by secret ballot. Secret ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member at least 30 days prior to the deadline for voting. The ballot itself must not be signed, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed and signed. The secret ballot must be returned in the two envelopes to the inspector(s) of elections. Members may request receipt for delivery. See California Civil Code section 5115.

Signs

The display of noncommercial signs, posters and flags is subject to reasonable rules and regulations established by the board of directors. Boards may not prohibit noncommercial signs and posters that are less than 9 square feet in size. Keep in mind that the first amendment protects free speech and courts are traditionally protective of individuals’ rights to express themselves. See Flags for a discussion of the U.S. Flag.

Statute of Limitations

The time in which a lawsuit must be brought. Different claims have different statutes of limitations. For example, a lawsuit for personal injury must be brought within two years of the date of the event causing the injury while a lawsuit for breach of a written contract must be brought within four years of the date of the breach. Most of the statutes of limitation in California are found in Code of Civil Procedure, sections 335 through 349.4, but are also found in other code sections. Failure to bring a lawsuit within the time specified in the applicable statute of limitations will act as a complete bar to the lawsuit.

Security

An association has a duty akin to that of a landlord to take reasonable precautions to protect residents from crime in the common areas, especially if there have been prior instances of crime in the community. While failure to take such precautions can lead to liability for an association, certain actions designed to enhance security also have the potential to increase the risk of liability, including the use of security cameras.

Skateboarders

Associations, excepting qualified senior communities, may not be able to prohibit the use of skateboards in the common area without risking a claim of familial status or age discrimination in violation of the Fair Housing Act (“FHA”) and Unruh Act (“Unruh”) respectively. Further, many rules restricting the usage of skateboards may also run afoul of FHA and Unruh – even if they are intended to protect skateboarders.

Stock Cooperative

A condominium project is one of the four types of CIDs that are considered common interest developments in Civil Code section 4100. Under Civil Code section 4190, a stock cooperative is a CID in which an association holds or a leasehold interest in or title to improved real property, and the shareholders in the corporation receive an exclusive right to occupy a portion of the property. The owner’s interest is considered an interest in a common interest development. However lenders often consider that an owner’s interest is not an interest in real property that would entitle an owner to obtain a loan and give a mortgage or deed of trust to secure the loan.

Security Cameras

These devices can be used to help discourage crime and identify perpetrators. An association should only use cameras in portions of the common area where residents have no reasonable expectation of privacy. Prior to installing security cameras, an association should adopt a comprehensive policy regarding the use of the equipment to prevent claims of improper use and minimize potential liability. Signage should be clearly posted by each camera. The association should notify residents on a periodic basis that these devices cannot guarantee their safety, and that they should also take reasonable safety precautions.