Sep 30
I previously reported that Tina Rasnow had proposed legislation that would void CC&R restrictions against clotheslines. She believed that forcing condominium associations to use clotheslines would reduce average household energy consumption by 10%, thereby reducing greenhouse gases and global warming.
The Conference of Delegates of California Bar Associations took up the issue and recommended disapproval of the resolution. Following are their comments:
LOS ANGELES COUNTY BAR ASSOCIATION. The existing definition of solar energy system set forth in Civil Code 714 sufficiently captures qualified solar devices. Furthermore, the vast majority of people do not want to use clotheslines instead of mechanical clothes dryers and most people do not want to have their yards or their neighbor’s yards strewn with clothes lines and clothes. This change will create protection for a public eyesore which has the very real possibility of detracting from property values. Furthermore, this could potentially interfere with municipalities’ ability to enforce certain codes relating to nuisances. This resolution should be disapproved.
ORANGE COUNTY BAR ASSOCIATION. The intent of this resolution is to declare void covenants, conditions and restrictions in deeds to real property prohibiting clotheslines on said property in the guise of creating an easement by Civil Code Section 714(a). The easement provided for Section 714(a) should NOT be expanded to include clotheslines as “passive solar devices†incorporating by reference Civil Code Section 801.5 a)(2) and (3) because the intent of Section 714(a) was to apply only to SPECIFIC “solar energy systems†and NOT to “passive solar devices.†In addition, California’s overriding interest in a “green†environment would not be advanced by the hanging of laundry on residential or commercial property.
SAN DIEGO COUNTY BAR ASSOCIATION. The San Diego County Bar Association encourages the development of a set of laws designed to promote the use of solar power. However, this resolution, as drafted, is troublesome insofar as it appears overly broad and undefined. As written, it would sweepingly invalidate potentially important provisions in community governing documents. Community associations have a legitimate interest in regulating improvements within their jurisdiction. Homeowners in planned communities should not have the unfettered ability to construct any mechanism in their yard and call it a passive solar device.
You can find the resolution and comments at: California Bar Delegates
Adrian Adams
Sep 22
QUESTION: If associations can no longer prohibit pets, can they restrict them to goldfish only?
ANSWER: No. As provided for in Civil Code §1360.5, boards cannot restrict pets to fish only. They must allow at least one bird, cat, dog, or aquatic animal. Owners can pick which one, not boards. However, boards can restrict size, number and breeds of the animals.
QUESTION: Our CC&Rs state “two usual and ordinary household pets…” I have one domesticated pet rat (lives in a cage). Usual and ordinary is subjective and not clearly defined. Rats, hamsters, gerbils, ferrets are common everywhere. Could there be any issue with the type of pet I have?
ANSWER: You are right about it being a bit subjective. Boards are allowed to make reasonable interpretations of “usual and ordinary” household pets. As provided for in Civil Code §1360.5, allowable pets include any other animal as agreed to between the association and the homeowner. This could include rats, hamsters and gerbils.
QUESTION: When for years a blind eye has been turned, can the board arbitrarily start to enforce the rules? Specifically, one pet is allowed per unit, many have more than two or more. Can the board demand that everyone go back to one pet?
ANSWER: The board could reestablish enforcement against new violations, but old violations are generally grandfathered. The board must give notice to everyone that it will not allow any further violations before it starts enforcement. The board should talk to legal counsel about how best to restart enforcement.
Adrian Adams
Sep 16
In a December 2006 newsletter, I concluded that election rules mandated by the newly enacted Civil Code §1363.03 voided pet prohibitions throughout the state. The Office of Legislative Counsel for the State of California has adopted the same position.
Background. Earlier this year, an owner living in a community that prohibited pets brought a dog into the complex. Reportedly, the board received an opinion from legal counsel that its pet prohibition had been voided by the adoption of election rules. The board disagreed with their attorney and changed law firms. The association then undertook disciplinary action against the pet-owner. The owner contacted Senator Kuehl, who asked the Office of Legislative Counsel for an opinion on the matter.
Opinion of Legislative Counsel. The Office of Legislative Counsel reviewed the underlying statutes affecting pets. It reviewed Civil Code §1360.5 and concluded that the Legislature’s broad intent was to give all owners the right to have pets. Counsel then reviewed Civil Code §1363.03, a law enacted last year that requires homeowner associations to adopt election rules. The Office of Legislative Counsel further concluded that election rules mandated by the Legislature had the effect of modified governing documents as defined by Civil Code §1360.5(e), thereby voiding pet prohibitions throughout the state. The opinion letter concluded with:
. . . it is our opinion that, under Section 1360.5 of the Civil Code, the adoption of a rule by a common interest development to comply with the election requirements of Section 1363.03 of the Civil Code renders unenforceable a provision of the governing documents of that development that prohibits the keeping of at least one pet.
RECOMMENDATION. Although the opinion of Legislative Counsel does not have the force of an Appellate Court decision, it will certainly be taken into account when judges rule on pet disputes. In my opinion, judges will likely conclude that associations pet prohibitions must now allow pets. Accordingly, boards should seriously consider amending their CC&Rs to limit the number, size and breeds of pets in their developments. If they do not, pet ownership in their associations could be unrestricted.
Adrian Adams
Sep 09
New rules issued by the Department of Homeland Security will have a ripple effect on all associations by driving up their operating expenses. It will also have a direct impact on associations with employees.
Undocumented Workers. Under federal law, it is illegal to knowingly employ an undocumented worker or to continue to employ any worker who is not eligible to work in the United States. Effective September 14, 2007, employers must fire workers who cannot verify their work eligibility.
No-Match Letters. Workers who provide false social security numbers on their W-2 forms to qualify for a job will result in a mismatch in Social Security Administration records. Under the new crackdown, the Agency is expected to send out “no-match” letters affecting more than eight million workers.
Penalties. Employers who receive a no-match letter will have 90 days to resolve discrepancies. If the discrepancies cannot be resolved, the employee must be fired. Employers who continue to employ workers with mismatching numbers could face criminal prosecution and fines up to $11,000 per worker.
Budgetary Impact. The enforcement of immigration laws will likely result in a smaller pool of employees for security guards, valet, landscapers, painters, janitorial workers, maintenance personnel, etc. As a result, associations and their vendors will be forced to pay higher wages to attract employees. This means associations should plan for increases in their budgets in coming years.
RECOMMENDATION: Employers must check work eligibility for every new hire, not just immigrants. If after completing the Form I-9 the employee’s information cannot be verified, employers must fire the newly hired employee. Associations with employees that receive a “no-match letter” for existing employees should consult legal counsel on how to avoid liability. The Social Security Administration provides a way for employers to verify Social Security numbers online.