Articles: Community Association Law Archives

When In Doubt, Check It Out: Homeowners’ Rights to Inspect Association Records

Attorney

In California, homeowners and members of homeowners associations (HOAs) have specific rights to inspect and copy association records. These rights are established under various sections of the California Civil Code and the California Corporations Code.

Under California Civil Code Section 5205, association records must be made available for inspection and copying by any member or their designated representative. The records should be accessible at the association’s business office or another agreed-upon location within the common interest development. If no agreement is reached, the association can deliver copies of the records to the member. Cal. Civ. Code §5205.

However, like many things in life, the inspection of records comes at a cost. The association may charge for the direct and actual costs of copying and mailing the documents, and for the time involved in redacting certain information, up to specified limits (an amount not in excess of ten dollars ($10) per hour, and not to exceed two hundred dollars ($200) total per written request). Cal. Civ. Code §5205(g).

What Records Can Be Inspected?

Members have the right to inspect records for the current fiscal year and the previous two fiscal years. Cal. Civ. Code §5210(a)(1). Minutes of member and board meetings are permanently subject to inspection. Cal. Civ. Code §5210(a)(2).

Members also have the right to inspect and copy membership lists so long as a written demand is made upon the association to do so. Cal Corp Code § 8330. Membership lists are records maintained by the association which include names, property addresses, mailing addresses, and email addresses of members that have not opted out of providing such information. Cal. Civ. Code §5200(a)(9). Once the written demand to inspect the membership list has been made, the association then has five business days to make the membership list available for inspection and copying. Cal Corp. Code § 8330.

However, certain information may be withheld or redacted by the association. This includes information likely to lead to identity theft or fraud, privileged information, and records that compromise individual privacy. Cal. Civ. Code §5215. Rather than providing a requesting member a copy of the membership list, Corporations Code Section 8330(c) allows the association to provide the requesting member an alternative method of contacting other members. Additionally, the use of association records for commercial purposes or any purpose not related to a member’s interest is prohibited. Cal. Civ. Code §5230.

What If The Association Withholds Access To Records?

If an association unreasonably withholds access to records, the member can bring an action to enforce their rights. Courts may award reasonable costs and expenses, including reasonable attorney’s fees to the member, and may impose a civil penalty of up to $500 for each denied request. Cal. Civ. Code §5235(a).

Conclusion

In summary, California law provides robust rights for homeowners to inspect and copy HOA records, with specific provisions to ensure transparency while protecting sensitive information. These rights are enforceable through legal action if necessary, ensuring that members can access the information they need while maintaining privacy and security.

The Right to be Heard: A Timely Reminder of Civil Code Section 4515

By Karyn A. Larko, Esq.
Senior Attorney

On January 1, 2023, amended California Civil Code section 4515 went into effect. The intent of section 4515 is to ensure that owners and residents of common interest developments can peacefully assemble within the community and freely communicate with others regarding matters related to the association and common interest development living, as well as other social, political, and educational purposes (“Matters of Public Interest”).

Specifically, section 4515 gives members and residents of an association the following rights:

The right to peacefully assemble or meet with other members, residents, and invitees or guests to discuss during reasonable hours and in a reasonable manner Matters of Public Interest, including matters relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes;
The right to invite public officials, candidates for public office, and representatives of homeowner organizations to meet with members, residents, and their invitees or guests, and speak on Matters of Public Interest;
The right to use the common area, including any meeting room or clubhouse when available, or, with the consent of the owner, the owner’s lot or unit, for an assembly or meeting related to Matters of Public Interest. Of note, an association cannot require members and residents to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy in exchange for being able to use the common area for the assemblies and meetings listed in items 1 through 3 of this article;
The right to canvass and petition the members, the residents and board members regarding Matters of Public Interest, at reasonable hours and in a reasonable manner;
The right to distribute or circulate, without association permission, information on Matters of Public Interest at reasonable hours and in a reasonable manner; and
The right to use social media or other online resources to discuss any Matters of Public Interest even if the content is critical of the association or its governance.

Civil Code section 4515 does not require an association to allow members and residents to display signs, posters, banners, or flags in the common area, or use the association’s website to express their opinions on Matters of Public Interest. Nor does this law require an association to provide members and residents with social media or other online platforms where they can express their opinions on Matters of Public Interest.

It is important to note that if an association’s governing documents attempt to prohibit members and residents from exercising their rights under Civil Code section 4515, or if an association otherwise attempts to hinder members and residents from exercising these rights, the association could face liability, including a civil penalty of up to $500 for each violation.

^{PRACTICE TIPS:}

Establish a system for reserving the clubhouse, meeting room or other areas suitable for meetings, and keep track of when these areas are reserved so you can promptly respond to requests to use these areas.
If the association generally requires members and residents to pay a fee, pay a deposit or obtain liability insurance to reserve the use of common area, include on the reservation form an area for the reserving party to identify the planned use of the common area, so you know whether these requirements must be waived.
Never retaliate against a member or resident for exercising their rights under Civil Code section 4515, even if they were unfairly critical of the board or management.

You’ve Been Served – An Article to Supplement Epsten, APC’s Litigation Checklist

By Hannah I. Hughes, Esq.

“You’ve been served” are three little words that no one wants to hear. But what exactly does that mean and what should you do when you are served with a lawsuit?

Our firm has created a checklist for when you have been served with a lawsuit, which can be located here: https://www.epsten.com/youve-been-served-lawsuits-checklist/. This article is intended to serve as a supplemental article to that checklist.

If you are served with a lawsuit, it is important to note the time, date, and method of how the lawsuit was served on you. It is important to immediately provide this information to your legal counsel, along with copies of all documents that were served on you, so that they can determine first whether service was proper and second when a response to the lawsuit is due. For example, documents served in-person have a thirty (30) day deadline to file a response while documents served via mail will provide you with an additional two (2) days to respond. If the Association does not respond by the deadline, they may not be able to protect their interests in the lawsuit.

Once you have provided your legal counsel with a copy of the documents and a detailed explanation of the date, time, and method of service, you should also provide the same to your insurance carrier. Your insurance carrier is the only one that can determine whether there is insurance coverage for the claim. Among the benefits of tendering the lawsuit to your insurance carrier is that they could accept the claim and provide defense counsel for the Association. This means that the association’s legal fees and costs would be covered by your insurance carrier.

After providing your legal counsel and your insurance carrier with a copy of the documents that you were served with, along with a detailed explanation of the date, time, and method of service, it is important that you preserve potential evidence related to the lawsuit. The Board of Directors, the Community Association Manager, and any and all employees have a duty to preserve related evidence once a lawsuit is filed. This means that you cannot delete, remove, or otherwise destroy related evidence including, but not limited to, emails, Board Meeting Minutes, Invoices, letters, photographs, video, etc. Your attorney likely will send a letter to notify affected parties of their duty to preserve evidence.

In addition to preserving potential evidence, you must also preserve the attorney-client privilege. The attorney-client privilege serves to protect client communication to or from their attorney. This includes oral or written communications whether in person, over the phone, or via email. However, the privilege only applies if it is a communication to or from your attorney. That means you should not forward any emails, documents, or other correspondence from your attorney to anyone who is not the Community Association Manager or a member of the Board of Directors. Additionally, you should not discuss the case with anyone who is not a member of the Board of Directors or your Community Association Manager. Remember, the client holds the privilege; this means the client can waive that privilege by sharing information with a third party. It is important that you do not waive this privilege by including a third party who is not subject to the privilege.

Finally, some owners within the association may request notice or information regarding the lawsuit so that they can determine whether they need to inform or notify any potential buyers or other third parties. Although the association is not required to provide this information, your attorneys can prepare a letter to the membership regarding the litigation that is informative but does not waive the attorney-client privilege.

While the three little words “you’ve been served” may not be as sweet as “I love you”, they should be taken just as seriously. Be sure to utilize the checklist we have provided to assist you if you ever hear those three little words.

Election Process Timelines

Election by Acclamation Process Timeline Effective November 2024

Election Process Timeline Effective January 2025

Election by Acclamation Process Timeline
Formatted to print on ledger size, 11×17 paper.

Election Process Timeline
Formatted to print on legal size, 8.5×14 paper.

Reservation of Rights Letters Explained: How Should Your Association Respond?

By Lindsay J. Anderson, Esq.

Your Association gets sued by a homeowner. You reach out to your insurance company to let them know about the lawsuit then you sit back and relax because insurance is going to cover everything, right? Do not get too comfortable!

Insurance companies may not cover everything, or anything, that you believe they should. How do you know what the carrier is going to cover during the course of this particular lawsuit? Look no further than the reservation of rights (“ROR”) letter. Your insurance company is required by law to provide you, as its insured, with a reservation of rights letter detailing all possible limitations on coverage that the insurer may rely on in connection with adjusting the claim or suit.

Basic Definitions

Before we can understand what the insurance company is saying in its ROR letter, we need to understand the jargon that’s typically included in the letter. The following definitions provide the basics.

Duty to Defend: Used to describe an insurer’s obligation to provide you with a defense to claims made under an insurance policy. As a general rule, an insurer’s duty to defend you arises when there is potential for coverage under a policy.
Duty to Indemnify: Used to describe an insurer’s obligation to pay the claim, by funding a settlement or paying a judgment against the insured. Unlike the duty to defend, which is typically determined at the outset of the litigation, the duty to indemnify arises when the facts establish that there is a covered loss under the policy.
Tender: Under the terms of your insurance policy, you must give your insurance carrier notice of any claim or suit being made against the Association. Such notice includes a demand for defense (i.e., duty to defend) and indemnity (i.e., duty to indemnify) under the policy.
Trigger or Coverage Trigger: Refers to the event that must occur before a liability policy applies to a given loss.

What is a Reservation of Rights Letter?

The ROR letter will be a letter from your insurance company which notifies you of the carrier’s coverage position, including any limitations on coverage that may act as a complete or partial bar to coverage. The ROR letter also affords the insurer an opportunity to undertake a more thorough factual investigation into the claim without waiving its rights to deny or limit coverage at a later date.

ROR letters vary in form depending upon the insurance company but, in general, include a summary of the factual background surrounding the current claim, a detailed analysis of the applicable insuring agreement and applicable exclusions (i.e., intentional acts, breach of contract, no monetary damages being sought) and endorsements which may impact coverage, a reservation of rights, and, in some instances, a denial of coverage for some or all of the claims. Since ROR letters may be long and winding with insurance terms and phrases peppered throughout, they are difficult to understand.

What are the Insurance Company’s Duties (Refer to Definitions Above)?

The duties of an insurance company are set forth in the Insuring Agreement section of the policy. Typically, an insurer has two distinct duties – the “duty to defend” and the “duty to indemnify.” In California, the duty to defend is “triggered” when there is any possibility, no matter how remote, that the claim would be covered under the policy. Where your carrier defends an entire action where only a portion of the claims are covered, the carrier may seek reimbursement from you for any defense fees and costs incurred in defending the non-covered claims.

Under the typical scenario where an insured is faced with a third-party claim for monetary damages, the carrier is obligated to defend the action if, under the facts known, there is a possibility of coverage under the policy. Once a carrier’s defense obligations have been “triggered”, the carrier is obligated to hire counsel, retain experts, investigate the claim, pay defense costs, and defend the case through disposition.

The duty to indemnify is the insurance company’s duty to pay any monetary judgment (i.e., damages) rendered against an insured for a covered loss. A carrier’s indemnity obligations are limited by the terms of the insurance contract and should be detailed in the ROR letter.

Why is an ROR Letter Important?

California’s insurance regulations require an insurance company to provide you with a written response to a request for defense and/or indemnity. That response typically comes in the form of the ROR letter which puts you on notice of any limitations or exclusions to coverage. Knowing what is, and more importantly what is not, covered under the policy is crucial to making strategic decisions regarding the handling of the claim. By way of example, the ROR letter can assist the Association and its defense counsel in evaluating a settlement demand and determining whether or not it is in the Association’s best interests to settle a claim. However, it is worth noting that the decision to settle typically rests entirely with the insurance company.

The ROR letter is also how an insurance company reserves its rights to either deny or limit coverage under the policy and to recover defense fees and costs expended in connection with the defense or settlement of uncovered claims. Under California law, the carrier’s coverage defenses may be waived where the insured relies upon the carrier’s failure to specifically reserve its rights under the policy.

What Should You Do if Your Association Receives an ROR Letter?

Receiving an ROR letter from an insurance company may feel intimidating. However, knowing what to do and what to look for when you receive an ROR letter are crucial in getting a handle on the carrier’s coverage determination.

Your first step when you receive an ROR letter should be to share it with your attorney.
The next step is to carefully review the policy exclusions and endorsements and discuss them with your insurance professional so that you can work within your budget to buy the broadest coverage available.

Do Your Governing Documents Need a Refresh?

By Rhonda R. Goldblatt, Esq.

Boards of directors of community associations frequently wonder at what point they should restate their association’s Bylaws and CC&Rs. Many associations have older, outdated governing documents that could use a complete overhaul. Board should keep in mind that restating these documents typically requires membership approval. Restated documents should also be prepared by a qualified attorney, and must be approved in a confidential vote, so the project can be relatively costly. Below are some considerations for when to pursue a restatement:

When portions of the governing documents are unenforceable

Older documents may have been superseded since their adoption by subsequent case law and statutes, rendering certain provisions unenforceable. Boards may want to restate their governing documents to bring them current with existing law (and thereby making them enforceable once again).

When the documents no longer fit the community’s needs

Communities change over time. A set of CC&Rs recorded in the 1970s may no longer reflect the owners’ preferences with respect to parking arrangements, architectural styles and more. Older documents also may not address innovations like solar panels and electric vehicle charging stations. Further, the board may wish to amend the governing documents to empower the board to address a specific problem within the community.

When the documents include discriminatory provisions

Civil Code section 4225 requires boards to amend out any provisions in a governing document which discriminate on the basis of a protected status. Such an amendment does not require membership approval. However, once this has been accomplished, boards may want to consider pursuing a complete document overhaul (a restatement), which does require membership approval. Documents old enough to include discriminatory provisions are likely due for an update in many other respects as well.

When the documents are just confusing

Not all Bylaws and CC&Rs are made equal. Some are better written than others. If your documents create more confusion than clarity, because of inconsistent or vague language, it may be time for a refresh. This need may be especially pressing given that vague or inconsistent language can give rise to lawsuits, as homeowners insist on interpreting the documents in one manner, and the board another!

To better protect the association’s interests

Original governing documents are typically written by the community’s developer. As one might expect, these documents frequently protect the developer’s interests rather than the associations. The board may want to consider restating the documents to provide the board with more expansive authority, and/or insert provisions designed to minimize the association’s and individual directors’ potential liability.

No matter your association’s goals, boards should consult their community association counsel regarding the timing of and procedure for restating their governing documents. Everyone deserves a makeover sometimes!

Contractors Insurance: Basic Coverage Provisions to Consider Including in Contracts

By Jillian M. Wright, Esq.

Time after time we have seen associations receive a one-page form contract or proposal from a contractor for thousands of dollars in work or services. Even if the job seems quick and simple, there is risk when a party is doing work on association property. Appropriate insurance coverage is necessary to mitigate that risk. Unfortunately, the one-page contract or proposal usually does not typically require the contractor to maintain adequate insurance coverage. Or worse yet, might require the association to insure the contractor. Some associations are not sure what insurance coverage their contractor should have. If that includes you, the descriptions of various types of insurance coverage below can help determine whether the contractor has sufficient insurance.

Comprehensive general liability (“CGL”) Coverage
Requiring a contractor to have general liability insurance is a prudent measure for several reasons. Firstly, general liability insurance provides protection against potential construction defect litigation, which is typically complex and expensive. This type of insurance helps offset the cost of defending lawsuits where the general contractor’s liability is claimed to be derivative of their work, thus providing financial security and peace of mind to both the contractor and the association.

General liability coverage would ideally include the following:

Products and completed operations provision to cover claims related to bodily injury or property damage arising from the contractor’s completed work, essentially covering issues that occur after the construction project is finished and handed over to the association, like faulty workmanship or defective materials that cause damage. Ideally, the contract would require this coverage be maintained for ten (10) years, but at a minimum at least as long as the longest applicable statute of limitations for the contracted work so there is coverage down the road for such defective work.
Broad form property damage provision which protects a contractor from property damage caused by their subcontractors while working on a project.
Additional insured endorsement naming the association and their agents as additional insureds. Being listed as an additional insured is important to ensure the association is protected by the contractor’s insurance policy. It is unlikely that the association’s liability policy would cover damage resulting from a third party’s work so it’s important that the association is named under the contractor’s coverage. Additionally, being named an additional insured often allows an association to make claims directly to a contractor’s insurance carrier rather than having to wait for the contractor to make the claim.
Separation of Insureds clause which stipulates that the policy’s coverage is to apply separately to each insured against whom a claim is made. Severability of interests guarantees that the policy will respond to a suit brought against one insured by another insured. Practically, this means that the carrier will provide coverage to the contractor even if another insured – the association – sues, or vice versa.
Waiver of subrogation clause applied in favor of the association and their agents which prevents the carrier from recovering the money they’ve paid out on a claim arising from a negligent third party’s actions. This avoids lengthy and costly legal disputes, particularly if the association or its agent was in any way negligent.
Premises and operations coverage with no explosions, collapse, or underground damage exclusion. This coverage requires the carrier defend claims that arose while on the association’s premises.
A stipulation the contractor’s insurance is primary and any duplicate coverage the association has is secondary and only applies after the contractor’s coverage is exhausted.

Any general liability policy should not include an attached, residential or condominium project exclusion or an insured versus insured exclusion.

Workers’ Compensation Insurance
Workers’ compensation coverage is important because it provides benefits to injured workers and their dependents and holds employers liable for work-related injuries. Workers’ compensation provides benefits such as medical care, wage replacement, and disability benefits. Contractors are generally required to maintain certain amounts of coverage by law, even if it is not written into your contract. Prior to January 1, 2026, sole proprietors are not legally required to obtain workers compensation, unless they are engaged in high-risk activities like roofing. However, effective January 1, 2026, all active contractors must have workers’ compensation insurance, even sole proprietors, associations sometimes require it to protect themselves from potential liability if the contractor gets injured on the job and tries to sue for medical costs. Moreover, while someone may claim to be a sole proprietor, if you see they have another helping hand – be it a relative or good friend – then they technically have an employee and workers’ compensation insurance is required.

Automobile Liability
If the contractor is driving on your property, they need to be properly insured with owned, non-owned and hired motor vehicle insurance for themselves and their employees.

Professional Liability Insurance
This coverage is more typically seen for design professionals (or general contractors working on a design build project) and covers claims arising from the professional’s services, not just defective designs but potentially other mistakes like cost overruns and missed deadlines.

Property Insurance
It helps to require contractors and their subcontractors maintain property insurance coverage for physical damage of their property, supplies, and equipment (whether or not owned by them) that are not covered under builder’s risk insurance, if any.

Builder’s Risk Insurance
This coverage protects projects and materials while the work is ongoing. For example, once materials are installed, they are considered a fixture of the property and generally covered by an association’s general liability insurance. Builder’s risk insurance covers uninstalled materials which are not typically otherwise covered by property insurance so materials lost by a sudden occurrence, like a fire, would be a sunk cost. Builder’s risk insurance helps avoid the parties quibbling over who is responsible to replace any uninstalled materials.

Employment Practices Liability Insurance (“EPLI”)
EPLI insurance protects from claims arising from employment-related claims, like wrongful termination, discrimination, and harassment. It is unlikely that a contractor has this coverage so they may increase their cost estimates if the association requires it be obtained. However, this can be especially important for longer term contracts where the contractors may have more interface with the association’s agents or residents. If, for example, a resident claims they feel harassed by the contractor’s worker and the resident sues the association, this coverage will be necessary to help defend that claim.

Special Considerations
Your contracts should require the contractor to provide the association certificates of insurance and additional insured endorsements prior to the commencement of any work. The association should be notified at least thirty (30) days prior of any cancellation or nonrenewal of coverage. Subcontractors should also be required to maintain all the coverage the contractors do. Perhaps most important of all, the association’s insurance broker should review the contract insurance provision before it is signed. The association’s broker knows what coverage the association has and can identify any gaps in coverage which need to get closed before the contract is signed. You should also discuss what the amount of the policy limits should be with your insurance broker as that will vary based on what the project is.

This is just the tip of the iceberg! These are generally the types of coverage to look for, however, we are not insurance professionals. We strongly suggest you discuss all contracts with your insurance broker as the needs for your specific project may require different types or amounts of coverage. We also strongly suggest you an association have any contract reviewed by the association’s legal counsel.

Tiny but Mighty: Managing Legal Compliance for Small Community Associations

By Rhonda R. Goldblatt, Esq.

** This article was published on CAI-SD’s San Diego Community Insider Magazine – Fall 2024 Issue.

California community associations are subject to a myriad of regulations, on topics ranging from noticing meetings, conducting director elections, handling finances, performing common area maintenance, and more. Larger community associations with bigger budgets likely have more resources and management options to assist the board in complying with these regulations. By contrast, smaller community associations get the short end of the stick, so to speak. Smaller community associations are subject to the same legal standards – the law does not relax for or exempt smaller communities from compliance – with fewer resources on hand to meet those legal standards.

In that case, what is a smaller community to do? Failing to comply with applicable statutory and governing document requirements can lead to liability. At the same time, each association must work within the limits of its resources. Smaller community associations can therefore consider the following ideas to make compliance easier to achieve:

Governance – Smaller community associations can consider amending their governing documents to:
1. Lower quorum for membership meetings so members who choose not to participate cannot derail any action.
2. For very small associations, allow each separate interest to appoint a representative to serve on the board of directors, thereby avoiding costly elections.
3. Reduce the frequency of board meetings to every other month, or once a quarter.

Contracting – Smaller community associations may want to set up contracting protocols to automate retaining vendors to the extent possible, including creating:
1. Checklists of required provisions in vendor contracts (dispute resolution mechanisms, firm start and end dates for the work, etc.).
2. Written screening processes for vendors, including requiring proof of insurance, licensing and qualifications.

Finances – Smaller community associations may want to set themselves up for success in terms of financial management by:
1. Making association financials available online, for convenient director review.
2. Creating a simple budget template for annual distribution.

Conflict Resolution – Smaller community associations’ lack of compliance often ends up highlighted during individual homeowner conflicts. Therefore, smaller communities may want to consider heading off homeowner conflicts at the start by taking advantage of free community mediation programs, scheduling internal dispute resolution early on, and keeping all homeowners informed about the association’s operation to give them a sense of ownership in the community. Smaller community associations should also carefully consider if and when to retain an attorney to assist with resolving a dispute, before a heated conflict spirals into a lawsuit.
Insurance – Insurance coverage is key for associations with limited funds, in case of a catastrophic loss to the common area and/or an expensive lawsuit. Smaller community associations, just like larger associations, should strongly consider meeting with their insurance professionals once a year to ensure they have coverage in place as required by the law, the governing documents, and best practices.

https://www.yumpu.com/xx/document/read/68794739/san-diego-community-insider-magazine-fall-2024/22

City of Carlsbad Bans Smoking in Multiunit Residences – Including Some of Yours!

By Jacquelyn Quinn, Esq.

The City of Carlsbad recently approved a new ordinance that, beginning January 1, 2025, will ban all smoking and vaping of any kind anywhere on the premises of a multiunit residential development located within the City of Carlsbad, including inside private dwellings, on private balconies, decks, garages, patios and common areas of a common interest development.

While it is certainly a win for residential communities desiring a smoke free environment, the ordinance requires associations subject to the ordinance to take specific steps and impose certain enforcement measures to ensure a level of compliance with this ordinance on or before January 1, 2025.

Applies to Multiunit Residential Developments in Carlsbad Only

This new ordinance applies only to multiunit residential development associations located within the City of Carlsbad.

What is a multiunit residential development? A “multiunit residential development” includes a property containing three or more units, including condominium and planned development common interest developments. Exceptions include mobile home parks, single-family homes designed as free-standing units which are separate (detached) from any other unit, and most single-family homes with an accessory dwelling unit and/or junior accessory dwelling unit on the lot.

Therefore, if your association includes units or single-family homes that are attached in any way (i.e., shared walls), they are likely subject to this ordinance.

What Type of Smoking is Banned?

The ordinance defines “smoking” as inhaling, exhaling, or burning, any tobacco, nicotine, cannabis or plant product, or other substance, whether natural or synthetic; (2) carrying any lighted, heated or activated tobacco, nicotine, marijuana, or plant product, or other substance, whether natural or synthetic, intended for inhalation; or (3) using an “electronic smoking device.”

An “electronic smoking device” is defined to include any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.

Again, the ban is broad and appears to encompass all smoking and vaping of any kind.

Where is Smoking Banned?

In private dwellings and any associated exclusive-use area;
Private balconies;
Porches;
Decks;
Patios;
Common areas (except those designated as smoking areas).

Designated Smoking Areas

An association is not required to have or create designated smoking areas under this ordinance, but if it has, or wishes to create these areas, they must meet the following conditions:

An unenclosed area;
Be at least 25 feet away from any (1) doorway, window, opening or other vent into an enclosed area; (2) enclosed or unenclosed recreation area such as a tennis court, swimming pool and picnic area; or (3) enclosed or unenclosed area primarily used by children such as a playground;
Have a clearly marked perimeter;
Be identified by conspicuous signs showing it is a designated smoking area;
Have receptacles designed for and primarily used for disposal of smoking waste and that are maintained free of smoking-related litter, including cigarette butts; and
Must not overlap with any area in which smoking is otherwise prohibited by applicable law.

Actions for Associations to Take

Associations subject to this ordinance must do the following:

Notice: On or before January 1, 2025, provide written notice to all unit owners stating: (1) smoking is prohibited in units, including balconies, porches, decks or patios, as of January 1, 2025 and (2) smoking is prohibited in all common areas, expect in specifically designated smoking areas as of January 1, 2025.
Common Area Signage: On or before January 1, 2025, post and maintain clear and unambiguous “No Smoking” signs at entrances and exits of common areas, in sufficient numbers and locations, and in conspicuous places to make it obvious to a reasonable person that smoking is prohibited.
Violations: Beginning January 1, 2025, when an association has knowledge of a violation, it must take reasonable steps to investigate and enforce the regulation, including written notice to the resident of the violation, a request to cease and desist, potential action if the violation is not corrected (i.e., hearing, possible fines, enforcement of ordinance, etc.), and resources provided by the city to assist with nicotine dependence.
CC&R Amendments: Beginning January 1, 2025, any new or amended CC&Rs must include specific provisions prohibiting smoking in a unit or common areas, other than a designated smoking area. This does not create an obligation for an association to amend its CC&Rs, but any CC&Rs recorded, amended or restated by an association subject to this law after January 1, 2025 must include these provisions.
Ban Smoking Items in Common Areas: Beginning January 1, 2025, prohibit the presence of ashtrays, ashcans or other receptacles designed for or primarily used for disposal of smoking waste within the common area, unless area is designated as a smoking area.

It is also worth noting that unit owners who lease their unit have certain notice and lease requirements they must also comply with under this ordinance. However, the ordinance does not place any obligation on the association to ensure owners’ renting their units comply with these requirements.

Penalties for Failing to Comply

Some good news…if an association fully complies with the requirements placed on it under this ordinance, an owner or occupant will not have a private right of action against an association for any damages suffered due to another occupant’s breach of the smoking ban. The ordinance isn’t necessarily clear on what damages may be placed on an association that fails to comply with those requirements, but best not to find out.

If an occupant violates the ordinance, a court will award damages as follows:

Actual damages suffered based on proof (i.e., medical expenses, lost rent, loss of use, etc.); or
Statutory damages in the amount of $500 per each violation per day of a continuing violation.
A court may also award exemplary damages when the violator is found guilty of oppression, fraud, malice, retaliation or conscious disregard for public health.

The ordinance allows for private enforcement. Meaning an association, landlords and occupants may take legal action against violators on behalf of the general public and themselves. Due to limited resources, it was stated that the city’s Police Department and Code Enforcement will not be responsible for enforcement. Contact us for more information.

Dos and Don’ts When Regulating Political Campaign Signs

By Kieran J. Purcell, Esq.

As political races heat up, you may notice more political signs in the community, which leads to questions such as: Can homeowners display political signs? If so, where can they post them? Perhaps most importantly, how soon after the election can we make them take down their signs?

You may find answers to these questions in your association’s governing documents, the California Civil Code, and local ordinances. The bad news is that you may not like the answers.

News flash: An association has the authority to restrict the placement of political signs in the common areas, while owners are generally permitted to display them on their separate interest property. Typically, an association’s CC&Rs grant the board of directors exclusive control over the common areas, including the placement of signs. Some CC&Rs may state that no signs are allowed to be displayed in the common area without permission from the board.

Nevertheless, some CC&Rs allow specific signage. For example, placing one (1) sign that follows customary and reasonable dimensions promoting a condominium for sale or lease.

Consequently, does this mean a board has no say in determining whether an owner may put political signs in the common area? Additionally, if an owner does place a political sign in the common area but fails to remove it promptly the association can remove it, correct? The answer to the first question is NO, and the answer to the second question is YES. To learn more about this, read Civil Code Section 4710.

Summarizing Civil Code Section 4710 “in a nutshell,” a homeowner may post political sign(s) not larger than nine (9) square feet made of statutorily permitted materials in or on his or her separate interest property. However, Civil Code Section 4710 does not grant a homeowner the right to post signs in the common area.

Supplemental Read >> Learn more about political signs, implications, and what associations can do about it here!

How long can a political sign be displayed before and after an election?

While CC&Rs rarely address time limitations for signs, many cities and counties have ordinances that specify time ranges during which political signs may be posted; for example, ninety (90) days before and ten (10) days after an election. It would be reasonable for an association to adopt a rule with similar time limitations for owners to post political signs within their association. Civil Code Section 4710 permits an association to restrict posting noncommercial signs on an owner’s separate interest property if it violates any applicable laws. Therefore, if an association would like to impose time limitations, an association may want to consider adopting rules that align with the time limitations set out in local ordinances with the help of legal counsel.

Okay, we have to let someone post a political sign. But just one! Right?

Maybe. Civil Code Section 4710(a) says governing documents may not prohibit noncommercial signs, posters, flags, or banners, all plural. Unless prohibiting the sign(s) serve(s) to protect public health or safety or if the posting or display violates a local, state, or federal law. For instance, (a) if an owner were to display an excessive number of flags near the street, obstructing drivers’ view of other vehicles, (b) if the city mandates a permit for a flagpole of a specific height and the owner has no permit, or (c) if the city imposes restrictions on the number of signs allowed on private property at any given time.

Needless to say, it is essential to carefully review an association’s CC&Rs before drafting or revising rules governing signs’ displayed in your communities and properties. If we can assist you in this process, please do not hesitate to contact us.