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Orange County Real Estate Law Blog

Secondhand smoke sparking lawsuits over condo rules

Tenants and homeowners in California and across the United States are grappling with lawsuits over smoking in buildings and secondhand smoke. Some condo owners or tenants who are sick or particularly sensitive to secondhand cigarette smoke are pursuing lawsuits against management companies and other homeowners or tenants in an effort to enforce no-smoking orders on the entire building.

The buildings in question have no specific non-smoking condo association or HOA rules in place, and because the smoking is taking place inside a private home, laws related to public smoking like in restaurants, bars or communal buildings do not apply. However, in many apartment buildings and condo towers, residents share walls and a ventilation system, which can make it easier for secondhand smoke to circulate from one place to another.

Are your HOA restrictions too strict?

If you are looking at a California property governed by a homeowners association, the property manager may have offered you a document outlining the covenants, conditions and restrictions for living there. On the other hand, perhaps you have lived in your home for years and never bothered to read over the CC&R. Maybe there is some dispute among your neighbors that has brought this document to your attention.

In any case, the CC&R is essential to the orderly government of a planned community or condominium, and as a property owner, you are part of that government. Understanding your CC&R will allow you to participate fully in the decisions made about how you will co-exist with your neighbors.

Contention over American flag display

California residents dealing with a frustrating homeowners association might like to hear about a story involving one Florida veteran. When asked by his H.O.A. to remove an American flag wrap that covered his mailbox, he fought back. His fight with the Southwood Residential Community Association gained national attention.

The dispute started when a retired U.S. Navy officer received a letter from the H.O.A. requesting that he remove the flag from his mailbox. If he did not comply within 15 days, he faced fines and loss of community privileges. He likened the letter to bullying.

Understanding the Davis-Stirling Act and HOAs

California homeowner associations are required to comply with the Davis-Stirling Common Development Interest Act, a complex piece of state legislation that contains more than 100 statutes. When HOA disputes arise, the law provides some potential remedies to the parties while other statutes under the act provide no penalties for violations.

The Davis-Stirling Act gives HOA boards the power to increase their annual assessments by as much as 20 percent and to impose additional special assessments of up to 5 percent of their budgeted expenses. They can only do so if they first disclose these intended increases by distributing the budget at least 30 days before the start of its fiscal year. If the board fails to meet the disclosure requirements, the special assessments and the increases can only be imposed following a simple majority vote by the members.

Pending legislation would ensure homeowners have free speech

California property owners who are part of a homeowners association might be interested in proposed legislation that could affect their rights as part of a common interest development. The bill, written by state Senator Bob Wieckowski, would secure free speech rights to persons living in such a development, including the right to peaceful assembly, the right to free communication within the community and the right to distribute information or gather for educational, social or political reasons.

The bill prohibit homeowners associations in the state from restricting community members from sending flyers or pamphlets to other members of the community. It would also be illegal for them to prohibit individual property owners from holding meetings about social or political issues that concern them. Finally, the bill would ensure that community members are not forced to pay fees for their meetings or distribution of materials.

Bill targets HOA disputes over speech suppression

California residents subject to the rules of homeowner associations may soon see a significant change in non-solicitation policies. Those policies have allowed HOAs to block political efforts among their residents by imposing fines and issuing commands. Some residents may agree with these policies as they impact political speech, but others feel strongly about their free speech rights. Citizen testimony was one factor in the movement of legislation preventing HOA infringement of free speech rights through the Senate Judiciary Committee.

Several HOA disputes were discussed in front of the committee. One of the individual property owners strongly supported a mayoral candidate. His HOA informed him that approaching neighbors and organizing meetings in his home was against the rules. Also testifying was a woman who provided information door-to-door on legislation that would impact the voting rights of homeowners. She was fined and ordered to stop her efforts. The Center for California Homeowner Association Law was also present, and its president testified her support.

Avoid disputes by knowing what your HOA can and cannot do

Homeowners Associations, most commonly known as HOAs, are governing bodies that regulate and maintain certain aspects of a neighborhood. From neighborhood pools to keeping entrances looking nice, the power of your HOA depends largely on the bylaws adopted when the HOA formed. As a California homeowner, you may want to familiarize yourself with how your HOA works. 

When you know what your HOA can and cannot do, it is much easier to avoid disputes with this group. This knowledge also empowers you to be aware if the HOA oversteps its bounds, violates your property rights or infringes upon your ability to properly use and enjoy your home and land.

Relief not always possible in a neighbor dispute

When prospective homeowners are looking at Orange County properties, they might consider the views, the peacefulness of a neighborhood or the safety of surrounding streets. Unfortunately, land development and moving neighbors can result in the loss of these qualities, which can impact enjoyment of the property as well as reduce its value. A lawsuit may be capable of remedying a damage to property rights in some situations.

A homeowner dispute regarding loss of enjoyment of one's property without anyone taking, damaging or invading the property is referred to as a private nuisance. In one example, a buyer chooses a home next to a privately owned baseball field. The owner moves in and is kept up later than usual by bright lights and loud noises every weekend of the summer. A neighbor dispute against the owner is likely prohibited due to owner's prior knowledge before purchasing the home.

Remodeling condominiums could require association approval

Civil codes in California regulate the interactions between condominium owners and homeowner associations. One source of confusion for owners is the level of autonomy and privacy that they have when making changes or repairs inside their homes. The written Condominium Plan specific to each community designates exactly where common and personal spaces begin. In general, the unit owner has control of the space bounded by the surfaces of walls, floors and ceilings.

This designation, however, does not include the drywall and elements within load-bearing walls. Those building components are common areas and fall under the direction of association management. What happens within one wall of an attached unit could produce undesired results for a neighbor. For example, inferior plumbing or electrical work could cause damage for neighbors who had nothing to do with hiring an inexperienced or unlicensed contractor.

Unexpected bills can trigger bitter HOA disputes

Many California residents pay fees to homeowners associations each month, and they expect this money to be spent wisely. They also expect a certain degree of transparency from their HOAs, and unexpected bills or unannounced fee hikes can lead to bitter disputes and protracted litigation. Matters can become particularly thorny when the costs of improvement projects spiral out of control or work has to be halted due to budgetary constraints.

The Villa Portofino development in San Diego began installing wooden fences seven years ago, but the project was scrapped because of funding issues. Many of the fences that were installed have since fallen into disrepair, and the property's homeowners association has chosen to remedy the problem by installing synthetic wood fences that are better able to withstand long-term exposure to the elements. However, a group ofresidents has voiced displeasure over some of the costs associated with the synthetic fence project.