Epsten, APC

The branch of each county’s Superior Court established to hear claims for relatively small amounts of money damages. The court operates informally, and all parties appear without benefit of counsel. See Code of Civil Procedure §§116.110–116.950, and request a copy of our Small Claims Court Manual.

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.)

Smoke that drifts from one area of association property to another is a nuisance. This includes tobacco smoke, marijuana smoke, BBQ smoke, etc. Associations have a duty to enforce nuisance violations and should require the violating person to abate the nuisance. Developments in both case and statutory law support an association prohibiting or restricting smoking in common areas, exclusive use areas and even inside units.

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.

Because public policy favors the use of solar energy, associations may not prohibit the installation of solar systems on separate interest property, nor may they restrict the installation of such systems except as authorized by Civil Code sections 714 and 714.1. Associations may restrict the installation of solar systems in and on the common area.

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.

Under the Davis-Stirling Common Interest Development Act, an owner (though not the owner’s attorney) has a right to address the board during the period of time set aside by the board for owner comment. See SB Liberty LLC v. Isla Verde Ass’n., Inc. (2013) 217 Cal. App. 4th 272.

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.

A special assessment is an assessment levied in addition to the regular assessment. The board may not impose special assessments which in the aggregate exceed five percent of the budgeted gross expenses of the association for that fiscal year without owner approval, as more fully described in Civil Code section 5605. The limitations of the Civil Code do not, however, limit assessment increases necessary for emergency situations as further described and subject to specified procedural requirements of that section.

Check the Secretary of State’s website to verify the mailing address for the association. Amendments to Statements are not eligible for electronic filing at this time with the Secretary of State; an amendment must be filed either by mail or at the public counter in Sacramento. Statement of Information, P.O. Box 944230, Sacramento, CA 94244-2300. Visit the Secretary of State’s FAQ regarding annual and biennial requirements for a business entity. If you mail anything to the Secretary of State, be sure to mail it certified mail, return receipt for tracking purposes.