Epsten, APC

An association’s governing documents generally provide that every member of the association shall have a non-exclusive easement for use and enjoyment of the common area, including, but not limited to the clubhouse. Essentially this means that while every member of the association has equal access rights to the common area and clubhouse, they may not prevent other members from using these facilities simultaneously. An individual owner’s use of the common area and clubhouse may be regulated by an association. For example, the association’s governing documents may provide the association has the right to reasonably restrict the number of guests of owners using common area facilities. Further, governing documents generally provide an association has a right to establish rules and regulations pertaining to the use of common area facilities. If not already provided for in its governing documents, an association should consider including a requirement that individuals requesting to use the clubhouse facilities for a private event must enter into an indemnity agreement in order to help insulate the association from liability during this event.

The Davis-Stirling Act now includes a section pertaining to conflicts of interest involving both directors and committee members. (Civ. Code §5350) Specifically directors and committee members may not vote on: (1) their own discipline; (2) an assessment against themselves for damage to the common area or facilities; (3) their own request for a payment plan for overdue assessments; (4) a decision whether to foreclose on a lien on their own separate interest; (5) a review a proposed physical change to their own separate interest; or, (6) a grant of exclusive use common area to themselves.

While there is no statutory requirement for a director to execute a statement or agreement regarding ethics as a condition of serving on a board, many associations find such policies to be good general statements of what the board expects in terms of individual director performance. A code of conduct or code of ethics is something that could be used for both the board and members of an association’s volunteer committees. See Article, Rules of Procedure Codes of Conduct: Keeping it Civil & Getting Association Business Done.

Frequently, construction projects in associations are those new, repair or renovation projects involving larger sums of money, longer periods of time, and sometimes greater disruption of the residents. For these larger projects, the assistance of design professionals, construction managers or other professionals is recommended.

A statement of how the Board will deal with delinquencies. The Board must adopt such a statement and annually deliver it to members during the 30 to 90 day period preceding the beginning of the association’s fiscal year. (Civ. Code §5310(a)(7)) Additionally, the statement is sent with warning of lien letters. (Civ. Code §5660)

A failure in a building or land and/or its components which could be caused by design, workmanship and construction errors and/or deficiencies in the materials used in construction which may or may not result in damages. 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 executed the purchase agreement on or after January 1, 2003.

“A ‘commercial or industrial common interest development’ means a common interest development that is limited to industrial or commercial uses by law or by a declaration of covenants conditions and restrictions that has been recorded….” “[C]ommercial use” includes, but is not limited to, the operation of a business that provides facilities for the overnight stay of its customers, employees, or agents.” Civ. Code §6531. Effective January 1, 2013, such developments are governed by the Commercial and Industrial Common Interest Development Act (Civ. Code §§ 6500-6875) rather than the Davis-Stirling Common Interest Development Act.

The CPSC (www.cpsc.gov) is the independent federal agency regulating the manufacture and sale of thousands of consumer products ranging from barbecue grills to deck chairs to swimming pools. It also collects information on potential hazards associated with consumer products and has the power to order the recall of products already being sold.

In the context of common interest developments, the term refers to a use not consistent with single-family residential use, such as operation of a business involving onsite customer traffic or storage of goods fpr sale, or the renting of portions of a home. See Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156.

Associations should ensure that there is always a point of contact for members to reach out and express concerns, report emergencies and request repairs. Including this information in your annual disclosures, as well as in assessment statements, ensures clear open lines of communication. That being said, the board is not required to be the point of contact for an association as that is typically the role of a manager.