Tag: HOA Dispute Attorney Los Angeles; Los Angeles HOA Dispute Attorney; HOA Dispute Lawyer

Cal. Civ. Code § 4740 states the rules governing an owner’s ability to rent or lease his/her separate interest property. Section 4740(a) states that “An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to his or her separate interest.”

Thus, owners seeking to rent their separate interest unit should first consult with their CC&Rs and governing rules and ensure the rental of the unit does not violate any CC&R provisions or association rules assuming that said rules were in place prior to the owner taking title. If an owner seeking to rent the separate interest unit acquired title prior to an HOA adopting plans governing rentals, then the owner will not be subject to those rules adopted after title was acquired.

The Davis-Stirling Common Interest Development Act, which provides for the rules regarding common interest developments, now commences with Cal. Civ. Code § 4000. The former code sections commencing with Cal. Civ. Code § 1350 have been repealed. Essentially, the code sections have changed but substantively, the rules remain intact.

If you are a homeowner subject to an HOA and CC&Rs and have a dispute with your HOA, contact one of our HOA Dispute Attorneys in Los Angeles today for a free consultation and case evaluation.

In Ekstrom v. Marquesa at Monarch Beach Homeowners Ass’n (2008) 168 Cal. App. 4th 1111, the Court of Appeal upheld a homeowner’s injunction against the HOA to enforce certain tree trimming provisions to protect the plaintiff homeowner’s view.  Id. at 1114.  The HOA appealed the injunctive and declaratory relief ordering the HOA to enforce the CC&Rs and preserve plaintiff’s views, claiming that the injunction was overbroad and vague and because the order did not specify a course of action and because plaintiff did not join as defendants individual homeowners. Id.  The Court of Appeal rejected the HOA’s arguments and affirmed the trial court’s judgment.  Id. at 1127.  In rejecting the HOA’s arguments, the Ekstrom Court held that “a directive that it [the HOA] utilize all enforcement mechanisms available is necessary to ensure the Association does not simply now make a token effort.” Id. at 1125.  In affirming the trial court’s order that the HOA do everything within its power to enforce the CC&Rs, the Ekstrom Court further held that “The Association cannot feign ignorance of what it should do—it has apparently had no difficulty figuring out how to carry out its responsibilities as to other trees species and has in the past required homeowners to trim or remove such trees.” Id. at 1126.  With respect to the HOA’s assertion that plaintiff failed to join individual homeowners, the Ekstrom Court relied on Cal. Civ. Code § 5980 which provides that an association may defend litigation concerning enforcement of CC&Rs without joining the individual homeowners in the association. Id. at 1126.    Thus, under well-settled California law, Courts have broad discretion to compel HOAs to take all measures necessary to enforce their rules.   If you are a member of a condominium association and have a dispute with your HOA, contact one of our HOA Dispute Attorneys in Los Angeles for a free consultation and case evaluation.

Many of our HOA Dispute cases consist of an association member (i.e., homeowner) seeking to compel an HOA Board to enforce its own rules as against another homeowner. If the dispute cannot be resolved through mediation and litigation ensues, one option for the homeowner seeking to enforce rules is to move the court for a preliminary injunction order compelling the HOA to enforce its own rules. California courts have upheld injunctions requiring HOAs to utilize every enforcement mechanism available to it under the CC&Rs and the law in order to obtain the relief sought. See Ekstrom v. Marquesa at Monarch Beach Homeowners Ass’n (2008) 168 Cal. App. 4th 1111, 1125.

In the Ekstrom case, a homeowner sought an injunction to compel the HOA to essentially enforce its rules regarding a particular nuisance complained of. The trial court issued an injunction directing the HOA to utilize all enforcement mechanisms available to it under the CC&Rs. The HOA argued on appeal that such an injunction is vague and ambiguous and therefore unenforceable and also that the injunction impermissibly interferes with its discretion to determine how to enforce the CC&Rs. Id. The California Court of Appeals disagreed and upheld the trial court’s directives in the injunction issued. The Court of Appeal held that the judgment was “sufficiently clear as to what the Association must do. It must comply with its obligations by exercising its discretion ‘in good faith…’” Thus, injunctions directing an HOA to do everything in its power to enforce its own rules, can issue and would seemingly be upheld by California courts.

If you have an HOA dispute, contact one of our HOA Dispute Attorneys in Los Angeles for a free consultation and case evaluation.

Recently, our HOA Dispute Attorneys have been asked to analyze whether a waiver of rights conferred upon an individual pursuant to Cal. Civ. Code § 5655(a) is valid if the waiver was part of a HOA assessment repayment plan agreed to by a homeowner behind on HOA dues. Cal. Civ. Code §5655(a) expressly provides that “any payments toward that debt shall first be applied to the assessments owed, and only after the principal owed is paid in full shall the payments be applied to interest or collection expenses.” Thus, 1367(a) instructs an HOA on how a delinquent payment must be applied.

Often times, HOAs and their collection agents request and/or insist that a homeowner behind on HOA dues, waive his/her rights under 5655(a) so that the HOA may apply late payments any way they choose, including deferring payments toward principal owed and instead paying down attorney fees, collection costs and other “non-principal” amounts accrued.

The question then becomes whether a homeowner, behind on payments, may waive his/her rights under 1367(a). Cal. Civ. Code § 3513 allows for an individual to waive the advantage of a law intended solely for his benefit but a law established for a public reasons cannot be waived. A homeowner’s rights conferred under 1367(a) could presumably be waived since it is not established for a public reason. The next question then becomes, what makes a waiver effective.

Under California law, “Waiver of a right conferred by law must be voluntary, knowing and done with adequate awareness of the relevant circumstances and likely consequences. A waiver is not effective unless the party executing it is fully informed of: (1) the existence of the right being waived; (2) the meaning of the waiver; (3) the effect of the waiver; and (4) a full understanding of the explanation of the waiver. The burden is on the party claiming a waiver to prove it by clear and convincing evidence. Doubtful cases will be decided against the existence of waiver, especially when the right alleged to be waived is one that is favored by law.” See Andrew Smith Co. v. Paul’s Pak, Inc., 754 F. Supp. 2d 1120, 1131 (N.D. Cal. 2010.) See also Record v. Indemnity Ins. Co. of North America, (1951) 103 Cal. App. 2d 434, 445 (“primary essentials of a waiver are knowledge and intent. Before one may be deemed to have waived a right granted by statute he must be shown to have knowledge of the right and an intent to waive or forgo it.”)

Thus, under California law, before a waiver of rights is deemed effective, the person waiving his/her right must have knowledge of the right waived and intent to waive said right and the party seeking to enforce the waiver carries the burden to prove an effective waiver.

If you have a question regarding the effectiveness of a contractual waiver, or a related litigation question, contact our Los Angeles Litigation Attorneys for a free consultation and case evaluation.

Our HOA Dispute Attorneys in Los Angeles successfully opposed a demurrer brought by an HOA against our client claiming that our client’s lawsuit against the HOA should be dismissed because our client did not certify that alternative dispute resolution (ADR) was attempted before filing the action pursuant to Cal. Civ. Code § 1369.520. The court denied the dismissal attempt by the HOA and held that Davis Stirling does not require an ADR certificate to be filed along with the complaint wherein the damages exceed $10,000. This ruling is entirely consistent with the code section which reads as follows:

This section applies only to an enforcement action that is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of the jurisdictional limits stated in Sections 116.220 and 116.221 of the Code of Civil Procedure.

Thus, if you have an HOA dispute and it either arises out of an assessment dispute or you claim monetary damages in excess of $10,000, then you need not comply with the ADR certification as required under Davis Stirling.

If you have an HOA Dispute, contact one of our Los Angeles Attorneys today for a free case evaluation and consultation.

Often times, HOA disputes arise from issues and matters that are documented or arise from financial documents, contracts or other writings, fiscal or otherwise. Cal. Civ. Code § 5200 et seq. provides the statutory obligation of an association to provide certain “Association records” upon request.

“Association Records” means all of the following: (A) Any financial document required to be provided to a member; (B) Any financial document or statement required to be provided by Davis Stirling; (C) Interim financial statements, periodic or as compiled, containing any of the following: (i) Balance sheet; (ii) Income and expense statement; (iii) Budget comparison; (iv) General ledger; (D) Executed contracts not otherwise privileged under law; (E) Written board approval of vendor or contractor proposals or invoices; (F) State and federal tax returns; (G) Reserve account balances and records of payments made from reserve accounts; (H) Agendas and minutes of meetings of the members; (I)(i) Membership lists; and (J) Check registers.

Should an association refuse to provide requested documents, it must provide the legal basis for denying such a request. Section 5200 et seq. provides members a right to enforce the availability and production of Association Records.

If you have an HOA Dispute, contact one of our HOA Dispute Attorneys in Los Angeles.

Cal. Civ. Code § 5975 authorizes a homeowner subject to particular CC&Rs, to bring an enforcement action against another HOA member or the HOA to enforce a covenant, condition or restriction. Often times, such an enforcement action warrants injunctive relief as well. When our HOA Dispute Attorneys endeavor to seek a preliminary injunction, the question then becomes, what action is necessary to seek enjoinment of, or is it necessary to seek to compel the association to enforce CC&R provisions.

These questions are critical since an action seeking enforcement of CC&Rs as against an HOA will usually be met with the argument that the HOA alone has the discretion to determine how to enforce its CC&Rs. However, California courts have held that when an association refuses to enforce its CC&Rs, a homeowner may seek injunctive relief compelling it to do so. See Lamden v. La Jolla Shores Clubdominium Homeowners Assn., (1999) 21 Cal. 4th 249, 268.

Thus, an injunction directing an HOA utilize all enforcement mechanisms available to it necessary to enforce the CC&Rs can issue, and has been upheld in California courts. See Ekstrom v. Marquesa at Monarch Beach Homeowners Ass’n, (2008) 168 Cal. App. 4th 1111, 1125.

It is well settled California law that constructive notice of a document affecting real property is conclusively presumed where said document is recorded as prescribed by law or indexed in the public records.  See Cal. Civ. Code § 1213; see also First Bank v. East West Bank, (2011) 199 Cal. App. 4th 1309, 1314.  Generally, CC&Rs are recorded instruments indexed in the public record.  Thus, violation of a covenant or restriction affecting real property subject to the CC&Rs, is not excused or otherwise permissible if the violating property owner claims ignorance or lack of awareness or knowledge of the CC&R rules.  As a matter of California law, a property owner is charged with actual knowledge of recorded documents affecting real property which he/she holds title to.

California Civil Code § 1354 allows an HOA or homeowners subject to an HOA’s CC&Rs to enforce provisions of the CC&Rs when those provisions are being violated by an HOA member. In an enforcement action, the party seeking enforcement has the burden to demonstrate that the particular provision to be enforced is not unreasonable. Thus, the question then becomes, what is the legal standard in determining the reasonableness of a CC&R provision. California cases have held that arbitrary provisions would be deemed unreasonable and thus unenforceable. See Dolan-King v. Rancho Santa Fe Assn., (2000) 81 Cal. App. 4th 965, 976 (A restriction is unreasonable or arbitrary when it bears no rational relationship to the protection, purpose or preservation of the affected land.).

However, whether a provision is arbitrary or unreasonable is not determined by its application to a specific homeowner affected, but rather by reference to the common interest development as a whole. See Nahrstedt v. Lakeside Village Condominium Assn., (1994) 8 Cal. 4th 361, 386 (“Under the holding we adopt today, the reasonableness or unreasonableness of a condominium use restriction that the Legislature has made subject to section 1354 is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole.”)