A FEW MORE FREQUENTLY ASKED QUESTIONS & ANSWERS ABOUT CALIFORNIA HOAs
Q: Our HOA used to have a problem with board members who had served 10, 15, or even 20 years on the board. About 5 years ago, after a few of those legacy board members moved or died off, we finally gathered enough votes to amended the bylaws to institute term limits. In 2020, however, we were told that the Davis-Stirling Act banned all term limits. We just hired a new management company, and they told us that the 2020 legislation banning term limits was revoked and that they were legal again. Is this true?
A: Yes. The legislature reversed the ban on HOA term limits in 2022.
Q: I live in an association consisting of large single-family homes, all of which have good-sized yards. Some of the yards don’t have a lot of privacy, meaning that neighbors can see into each other’s yards, but most of them do. For example, my yard is surrounded by thick plants that block all visible access into my yard from either of my neighbors (I have a steep slope on my rear property line, so someone would have to trudge through a lot plants and up a long, steep hill to view into my yard). My HOA has just announced a new rule that bans us from being nude in our yards. My wife and I frequently skinny dip together, and we don’t think such a ban is legal. Is it?
A: Taking your description of the new rule at face value—i.e., the rule bans nudity itself and not the public display of nudity—the rule is unreasonably overbroad and thus probably not enforceable. You’re probably already aware that it’s illegal to stand in your window and display yourself to passersby. (Penal Code §§ 314, 647.) In fact, several people in California have been prosecuted for doing just that, especially when children were involved. In the case of your HOA, if the rule were limited to a ban on the public display of nudity—such as in the cases of the neighbors who don’t have the privacy that your property affords you and your wife—then I wouldn’t see a problem. But a ban on your being nude in your yard, when nobody could possibly see you unless they were actively attempting to invade your privacy, such a rule makes no sense. If were you, I’d use the comment period to write a thoughtful letter to the board of directors explaining that the rule should be amended slightly to ban what they probably intended to ban—the public display of nudity.
Q: I live in condominium in Marin County, and recently, my neighbor’s tub leaked so badly that it caused water to leak from my ceiling and all over the living room. While it should be relatively easy to patch and repaint my ceiling, I’m starting to worry about mold. I’ve read horror stories about the damage that mold can cause, both to a person’s body and their property, and I’m concerned because it took almost a week for my neighbor to get someone out to inspect the damage. That company estimated that remediation and repairs to both units would cost a good deal of money, and now my neighbor is saying that he wants to check with his insurance company to determine whether he’s liable for my repairs. I reached out to my HOA’s property manager, and she told me that since the HOA wasn’t responsible for the damage that occurred, the board didn’t want to get involved. Meanwhile, it now looks like it’s going to be weeks before any remediation occurs. I have two questions. First, is there any way that my neighbor won’t be liable for repairing my ceiling and removing any mold that might be located where the leak occurred? And second, does my HOA have any responsibility here?
A: As to your first question, I can’t think of any instance where your neighbor won’t be 100% liable for all costs of repairs to your unit, including remediation of any resulting mold. In fact, not only is your neighbor going to be responsible for the repairs and remediation of your unit, but if any of your personal property suffered damage as a result of the leak (and you didn’t say either way), if you could prove that the leak resulted from your neighbor’s negligence (e.g., if the tub leaked because the neighbor negligently overfilled it), your neighbor would also be responsible for that damage as well. With respect to your second question, your HOA is almost certainly required to intervene. First, when it comes to condominiums and other forms of connected housing, a leak between units certainly involves the travel of water over or through common areas. That alone makes the HOA a necessary participant in the dispute. More importantly, HOAs have a duty to enforce the governing documents, and leaks from one unit into another almost always involves a homeowner’s negligence or commission of a nuisance. In any event, if you end up having to initiate legal action against your neighbor, be sure to include your HOA as well. I would also make a formal written demand on both your neighbor and HOA to immediately get a remediation company out to perform the remediation and repairs. It is not reasonable to delay while trying to figure out who’s going to pay for what. In the meantime, you should also contact your insurance company and ask them what you should do.
Q: I just turned 20 years old. My grandmother lived in a 55+ community in South Orange County. When she died recently, I discovered that she left her property to both my sister and me as tenants in common. Although I probably can’t live in the community because of my age, someone told me that I could actually run for the board of directors and serve as a director. Is that true?
A: Almost certainly, yes. I say “almost certainly” because while I can’t think of an instance where an HOA could legally bar such a thing, I’m allowing for the possibility that I’ve missed something. While age restrictions regarding residency are enforceable in communities who meet the requirements established under California law, those restrictions don’t extend to who can own a unit in a 55+ community. And since such owners are, by definition, members, and age is not among the permissible disqualifications for HOA membership, I can’t think of a reason why the HOA would be able to stop your running for and/or serving on the board. [Let us know if you run and win.]
If you’re interested in learning more about HOAs in California, including questions and answers to a variety of relevant issues, check out this article.