Is Your Association at Risk of Liability for Violations of the Federal Fair Debt Collection Act?

“No cost” collection service can come with a serious cost.

Gena Hanson was a member of the Vineyard Terrace Homeowners Association. In 2013, she was hospitalized for three months while undergoing chemotherapy and fell behind on her assessment payments. The Association hired Pro Solutions to collect Hanson’s outstanding debt. Pro Solutions, a debt collection company, agreed to represent the association on a “no cost” collection basis. Under this model, Pro Solution charged the delinquent owner directly for the collection costs and fees, while the Association assumed no liability for the costs whatsoever. Various “collection fees” and “management costs” were added to Hanson’s ledger, but the Association was not responsible for paying those costs to Pro Solution.

Hanson made several payments to Pro Solutions, but Pro Solutions applied her payments to the costs it was charging, rather than to the assessments. Hanson decided to sue. The crux of her complaint alleged that Pro Solutions charged her for fees the association never incurred, in violation of Civil Code Sections 5650(b)(1) and 5600(b). She claimed that this conduct violated the Fair Debt Collection Act, seeking monetary penalties and attorneys’ fees.

The United States Federal District Court agreed with Hanson and criticized Pro Solution’s practice. It stated:

“It is clear that the fees of Pro Solutions are not allowable claims of the HOA under [§ 5650(b)] because they were not costs incurred by the HOA in collecting the delinquent assessment. They are also not allowable under [§ 5600(b)] because they exceed the amount necessary to defray the HOA’s costs; they are not costs of the HOA at all. To find otherwise opens the door to all sorts of mischief, as an HOA has no incentive whatsoever to question costs for which it is not liable and no incentive to search for services charging more reasonable costs.”

It therefore allowed Hanson to proceed to trial with its claims against Pro Solutions.

So what does that mean for your association’s future collection efforts? It means you have to be careful. Based on this decision, associations should stay away from collection companies that offer a “no cost” collection service—this type of service is usually going to be prohibited. While only Pro Solutions was named as a Defendant in Hanson’s complaint, a homeowner could easily name the Association as a Defendant to a similar claim, because a collection agency merely acts as the agent of the association.

The savings in using a “no cost” collection service can prove worthless when facing the costs of litigation. Silldorf & Levine can ensure that you are not engaged in a collection activity that is putting your association at risk of liability. Our firm offers the benefits of a “no cost” collection without the risks presented by the Hanson case. Our firm provides a “fee advancement” model where the association incurs the costs, but is not responsible for paying them until we successfully recover the debt from the delinquent owner. With the “fee advancement” model, the association’s cash-flow is not affected, and the board does not have to worry about the monthly legal fees and collection costs being incurred. When the debt is collected, the Association pays Silldorf & Levine the fees and costs it had incurred, but can do so from the surplus it recovered.

Hanson v. JQD, LLC, No. 13-05377 RS, 2014 WL 644469, at *1 (N.D. Cal. Feb. 19, 2014)

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Payment Plans: Getting Paid While Getting Leverage

Payment plan agreements play an instrumental part in associations’ struggle to minimize delinquencies. In fact, payment plans are so important that the California legislature made sure to require boards to consider them in a meeting when a delinquent owner makes a request1. Civil Code Section 5665 compels boards to meet with a delinquent owner, in executive session, within 45 days of a written request to discuss a payment plan, but many times the circumstances surrounding the request make it disadvantageous for the board to entertain.

Consider the following: a repeat rule-violator has been delinquent for two years. The board retained a collection attorney to initiate legal action, and litigation is already underway. The debt nears $5,000, not counting the $1,500 – $2,500 the board had to pay the attorney to get to this point. At the 90th hour, the board receives a written request to meet and discuss a payment plan. The board must comply and the directors are unhappy.
Why should they allow a payment plan after spending $2,000 in attorneys’ fees and costs?

Why should they settle after spending over a year chasing the delinquent owner?

How can they trust an owner who has proved to be a problem to not default on the payment plan?

How can they ensure that, if the owner defaults, they’re not back to square one—minus $2,000 in expenses and over a year wasted?

Those are not uncommon questions. Payment plans are only effective when done right. This article attempts to provide some answers and solutions.

We’ll start with the why. Why should boards ever entertain a long-term payment plan when they have a legal right to collect the money immediately in its entirety? The answer requires a deeper look into the efforts traditional collection methods demand.

The alternatives to a payment plan include legal action and foreclosure; both are effective collection tools that come at a cost. The average legal action (assuming no real opposition by the delinquent owner) will cost the association between $2,000 and $3,000 in attorneys’ fees and costs. The cost of non-judicial foreclosure falls in the same range. Of course, those costs are almost always pushed back to the delinquent owner, but collection is never guaranteed and those expenses may not be recovered. Next, a legal action, on average, takes six to nine months to conclude with a judgment. Even then, the association can expect at least two to three months before assets are located and collected (if any exist). Non-judicial foreclosure, again, falls in the same range. Depending on whether the foreclosed property has any equity, foreclosure may or may not lead to actual recovery, however. Without taking anything away from the effectiveness of those methods, the board must be prepared to spend money and stay patient.

Payment plans require less patience and almost no monetary expense. The cost of drafting a good payment plan, even when utilizing an experienced attorney, is minimal, and can be incorporated into the settlement amount. In fact, many management companies and collection firms charge a “payment plan fee” intended to cover that exact cost. Once the payment plan is executed, the association does not have to wait to see the money; the cash-flow is immediate. The $5,000 debt may not be paid right away, but at least parts of it will start flowing into the association’s bank account in a matter of days or weeks. Finally, and this is especially true with respect to debtors who are current owners and residents of the association, a board’s willingness to work with a delinquent owner is perceived positively by the membership and can go a long way in improving the popularity of the board members with their neighbors.

So how do we make sure we do it right?

1. Put it in writing.

Often times when agreeing to a payment plan with a delinquent owner at a meeting, boards decide to, in the spirit of cooperation, forgo the formalities of a written agreement, and instead rely on the oral promises exchanged at the meeting, or the recorded minutes reflecting the agreement. While a good spirit of cooperation is encouraged, forgoing the written agreement is a bad idea. As agreeable and understanding as the owner may seem at the meeting, if he or she ever defaults on the payment, a dispute will inevitably arise. The terms you thought were so clear will come into question, and recollection of the details will be challenged. In these situations, even the minutes will be insufficient. For example, the difference between a 3-day grace period and a 10-day grace period can be the difference between compliance and default, but without a written agreement addressing the issue specifically, a dispute over the grace period could end up in court. The evidentiary issues created by the lack of a written memorialization of the parties’ agreement are well recognized by the courts as well. Thus, a party seeking to enforce a written agreement that has been breached must do so within four years of the breach2. On the other hand, a party seeking to enforce an oral agreement that has been breached must do so within only two years of the breach,3 presumably to ensure that not too much time has passed so as to diminish the parties’ recollection of the terms of the agreement. This can be important if the association finds itself in a situation where legal action is required to enforce the payment plan agreement.

2. Demand financial information.

The key in achieving a successful payment plan is leverage. When agreeing to a payment plan, the association, no doubt, is compromising. To be enforceable, the agreement must also require the owner to make sacrifices. It must give the owner something to lose, so as to incentivize him or her to maintain compliance.

One way to gain leverage is by requiring the delinquent owner’s financial information as a condition to entering into the payment plan. Information regarding the delinquent owner’s employment and bank accounts is essential for multiple reasons. If spouses and adult-children are also involved, their information should also be demanded. Don’t be shy! You should ask for the identity of the employers and the monthly income earned, as well as the bank account numbers and balances as of the date of the payment plan.

The first reason we want this information is to ensure the delinquent owner is entering into an arrangement he or she can actually afford. An owner with $300 in monthly disposable income should not enter into a plan requiring him or her to pay $750 per month because it’s unlikely he or she is going to be able to comply. That agreement will surely fail. This reason should be disclosed to the owner, as an explanation for the association’s request.

The second, and probably more important, reason we want this information is to develop a record on the owner’s assets, so that in the event of a breach, we know where to find the money. Getting a judgment against a debtor is difficult enough; locating the debtor’s assets (employment, bank accounts, etc.) after the judgment was awarded is usually even harder. With the information being provided by the owner as a condition to entering into the payment plan agreement, the association can save time and money locating the owner’s assets if the agreement is breached and the association is forced to resume collection efforts. Most owners understand this concept, and are thereby encouraged to maintain compliance with the payment plan. In other words, it creates leverage.

Some sophisticated debtors may resist, and the association can still enter into the agreement without the information. However, if this requirement is included in the association’s collection policy as a necessary condition to every payment plan, the debtor will be hard-pressed not to comply, especially when facing aggressive collection efforts by the association otherwise.

3. Incorporate a Stipulated Judgment.

As already mentioned above, leverage is key. Another way to gain leverage is by requiring a stipulation for a judgment as part of the payment plan agreement. A stipulation for a judgment is a legal document, drafted on pleading paper, executed by both the association and the delinquent debtor. By executing this document, the owner agrees to have a judgment entered against him or her in the event of default on the payment plan. In other words, if the association is required to enforce the payment plan agreement in court after default, it may simply be able to submit to the court the stipulation for a judgment signed by the owner, and circumvent the usual legal requirements necessitating proof by the association that the money is actually owed. In short, it means the association can get a judgment without having to prove its case for six to nine months.
The benefit in a stipulated judgment is twofold. First, if legal action becomes necessary, it will be significantly less time-consuming and less expensive. Second, it projects the seriousness of the matter and the extent of the association’s wiliness to pursue potential defaults onto the delinquent owner. With a signed document where he or she agreed to have a judgment entered in favor of the association, the owner will think more than twice before defaulting on the plan. He or she will be incentivized to comply. In other words, it creates leverage.
With a stipulated judgment and financial information on the debtor, defaulting on a payment plan with the association carries serious consequences for the owner, and that is exactly what we want.

4. Consider Probationary Periods.
Another tool in the association’s arsenal is the probationary period. Probationary periods are important when the association agrees, as part of the payment plan agreement, to waive some of the amount owed. When dealing with a repeat offender, or an owner who has been delinquent for multiple years, but still demands that some fees or charges be waived, the collection policy should expressly require a probationary period. That probationary period can require a delinquent owner to remain current on his or her monthly dues for a specified period of time (one or two years) even after successfully completing the payment plan. If the owner falls into arrears again during the probationary period, the money the association previously agreed to waive as part of the payment plan can be retroactively add back as a penalty.

By using a probationary period, the association not only creates an incentive to comply with the payment plan agreement, but also an incentive to remain current on the payment of monthly dues after the payment plan agreement is complete. The penalty in adding back the previously waived charges creates leverage.

5. Keep the Lien.

Finally, no matter how short the plan is, or how small the debt is, the association should always require an assessment lien be recorded (or remain recorded) against the subject property for the entire duration of the payment plan. Most associations record a lien against a delinquent owner within three or four months of the delinquency. Accordingly, when an owner requests to enter into a payment plan, the association probably already recorded a lien against that owner’s property. The assessment lien is a powerful tool that creates strong security for the debt owed to the association. The benefits associated with liens can be addressed in another article. But suffice it to say, the lien should stay recorded until the debt is paid in full.

In summary, the benefits of payment plans are indisputable, and boards should always consider an owner’s request to settle in that manner. When done wrong, payment plans can result in a disaster – but when done right, however, payment plans can prove to be the long-term solution to an association’s delinquency problems.

  1. California Civil Code Section 5665 

  2. SOL 

  3. SOL 

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Dog Variance Done Right

It’s widely known that CC&Rs must allow at least one pet and must be enforced uniformly and in good faith. What happens, however, when an association that has a “one dog only” pet restriction has not enforced the restriction for some time and then one year decides to enforce it from that point forward? The answer will depend on how the board addresses the situation.

The Villas in Whispering Palms is an association with a “one dog only” pet restriction.1 It did not enforce this restriction for a long time, but in 2003 the board realized that many homeowners had two dogs.2 It decided it was time to enforce the restriction.3 To be fair, it provided, pursuant to its CC&Rs, variances to all current homeowners with two dogs such that they could keep the second dog until it passed away. Homeowners were not allowed to replace the deceased second dog.4 By 2005, the board again learned many homeowners had two dogs.5 A survey was conducted to establish the desire of the membership to keep the one dog restriction.6 The majority still wanted the restriction, so the board, again, chose to enforce the restriction and provide variances to current owners with two dogs.7 The board, however, made it very clear and informed the homeowners that “from that point forward the pet restriction would be strictly enforced.”8

In 2010, Richard Tempkin moved into the complex with a friend who had a dog.9 They brought a second dog to the unit in 2011.10 The board sought to enforce the restriction.11 Tempkin argued, however, that the enforcement of the restriction against him was arbitrary and capricious and that he too, like past owners, should be provided a variance.12

The court found in favor of the association.13 The association did, in fact, uniformly enforce the restriction following its 2005 notice to do so.14 The only variance provided after 2005 was due to a medical need where a second dog was required as a service dog.15 Furthermore, the manner in which the board enforced the restriction, including notice of violation and hearing with the imposition of fines and legal action, was the same manner of enforcement used on other offenders.16

Thus, the association had uniformly enforced the restriction beginning in 2005. And, the court noted, “the fact the board took no action to enforce the rule for many years before 2004 is not an indication of selective or arbitrary enforcement” in light of the fact “that the board investigated the community’s opinion and reassessed its desire for the pet restriction in 2005 so as to decide whether Villas should retain the rule, and thereafter notified all homeowners the rule would be strictly enforced from that point forward.”17 The Court further concluded that “this was a reasonable and informed decision of the board entitled to judicial deference.”18 The enforcement against Tempkin, therefore, was reasonable and was not arbitrary or capricious.

The moral of the story: associations absolutely must enforce their restrictions uniformly and evenly against all members. If a rule or restriction has gone to the wayside, the board should either change the rule or policy to conform to its current practice, or reinstate the rule and make it clear to all homeowners of the intent to do so. The rule must then be enforced uniformly. The decision, whether it is to adopt a new rule or policy or to enforce the old rule or policy, should be one that is informed and done in the best interest of the association and its members. Depending on the nature of the rule, the Board may consider grandfathering in those homeowners who were in violation of the rule prior to its renewed enforcement.

  1. Villas in Whispering Palms v. Tempkin (Cal. App. 2015) 2015 WL 2395151 *1 (unpublished). 

  2. Id. 

  3. Id. 

  4. Id. 

  5. Id. 

  6. Id. 

  7. Id. 

  8. Id. 

  9. Id. at *2. 

  10. Id. 

  11. Id. 

  12. Id. at *2-3. 

  13. Id. at *4-*9. 

  14. Id. at *8. 

  15. Id. at *4. 

  16. Id. at *8. 

  17. Id. at *9. 

  18. Id. 

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Q&A: Is My Neighbor Allowed to Own a Snake?!

Q: My association has a pet restriction that permits owners to only have one common household pet. My neighbor has a pet snake. While it has not hurt me in any way or made excessive noises, it absolutely terrifies me. Is he allowed to have the snake for a pet?

A: The California Civil Code § 4715 requires associations to permit homeowners to have at least one pet. The association may, however, have reasonable rules and regulations regarding the pet. Section 4715(b) defines pet as “any domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed to between the association and the homeowner.” Thus, an association must permit at least one bird, cat, dog, or aquatic animal.

The definition supplied for the term pet under section 4715 does not use or define the term “common household pet.” This term is vague and open to interpretation. While it clearly encompasses birds, cats, dogs, and fish, it is not clear what reptiles or other types of animals are included in the definition of “common household pet.” A common household pet could include rodents such as hamsters and rabbits. If the snake is not an illegal species of snake and is easily purchased though a breeder or pet store, unfortunately for you, it is arguably a common household pet.

For this reason, it is important for associations to tailor their pet restrictions to be more specific as to the types of animals permitted within a unit subject to Civil Code § 4715. When amending CC&Rs or rules and regulations regarding pets, association should seek the advice of their legal counsel.

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April 2015 Legislative Update!

Many associations face the problem of delinquency, as members that fail to pay their assessments can cause great financial burden for the associations. Many times the delinquency can only be cured by seeking legal action including foreclosure of the property. The Civil Code explicitly provides for the procedures in which an association must undertake to foreclose on the member’s property.

It currently requires the board to personally serve the homeowner with notice of its intent to foreclose on the member’s separate interest. This requires the notice to be directly and personally delivered to the homeowner. Currently, Senate Bill 290 proposes to change this. SB 290 seeks to permit associations to serve the notice on the homeowner by personal service or substitute service. Substitute service would allow associations to provide notice indirectly to the homeowner. For example, the notice could be delivered to the homeowner’s place of work and left with an adult who appears to be in charge.

If this bill passes, associations should be pleased. Personal service is more difficult to achieve, and homeowners who are aware of the impending foreclosure may attempt to evade such service. This can cause the process to take more time and add to the legal fees as counsel continues attempt service. Allowing substitute service can prevent these issues and, therefore, expedite the process and prevent increased legal fees.

With the legislature having been on a streak of bills that are more beneficial to homeowner rights, it is refreshing to see a bill that provides the association with more tools to maintain its vitality and continued financial security.

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Director Compensation? Just Say No!

Participating in your association as a director of the board is an important role that comes with many responsibilities. Directors owe a fiduciary duty to the association and must act in the best interest of the association. It is a voluntary position that comes with no compensation.

Generally, the director is not entitled to compensation for his or her services.1 There are, however, some exceptions to this general rule. A director can be paid either when: (1) the board agrees to pay the director for a specific service before he or she performs the service, or (2) the director performs an extraordinary service, one that is not within the scope of his or her usual duties, and where it is intended he or she be paid for the rendered work.2

For those of you who have served on a board or are serving on a board, this might sound wonderful as your responsibilities are great indeed. Adding compensation to service can, however, complicate matters potentially creating not only conflicts of interest, but also a legal mess. Briskin v. Oceanside Marina Towers Association is a prime example of how just the discussion of director compensation can lead to unwanted legal battles.

Jules Briskin was the board director of the Oceanside Marina Towers Association.3 The Association leased the land on which the development was built.4 The city owned the land and the Association only owned the improvements. While he was director, Briskin began negotiating for the purchase of the land from the city.5 The negotiations began in 2003 and continued through 2008 when the city agreed to sell the land to the Association.6

During this time, Briskin asked for compensation for his work in the land sale negotiations.7 He claimed other board members individually told him he should be compensated for his work, and a committee was formed to address the matter.8 The committee recommended the board compensate Briskin, but the board never took action on the issue.9 After the city agreed to sell the land, Briskin resigned from the board, and the board formally decided not to compensate Briskin for his work.10

Briskin responded by filing a law suit against the Association for compensation.11 Briskin claimed there was an implied contract and that the Association intended to pay him.12 The Association argued there was no intent that he be compensated.13

The Association cited its governing documents, which provided, “Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by resolution of the board.”14 The court said this provision, which requires the board to agree to pay a director for his work by board resolution was not dispositive of the issue.15 The question of what the parties intended had to be resolved in trial, and the result in trial is still unknown.

This is a scary outcome. The board did not follow the governing documents and is now not protected by the governing documents. If it is shown that (1) the negotiation of the land sale was an extraordinary service performed by Briskin and (2) that the parties intended Briskin be paid regardless of what the governing documents require, the Association will have to compensate Briskin.

This could have been avoided if the Board followed proper procedures and if board members had abstained from individually discussing the matter, outside of board meetings, with Briskin.

This case should serve as a reminder to all associations: The procedures within the governing documents should always be followed. If you serve on the board of directors, remember it is something you do for your community and neighborhood, without the expectation of compensation.

  1. Briskin v. Oceanside Marina Towers Association (Cal. Ct. App. 2015) 2015 WL 1307204, *3. 

  2. Id. 

  3. Id. at *1. 

  4. Id. 

  5. Id. 

  6. Id. *1-*2. 

  7. Id. at *1. 

  8. Id. 

  9. Id. at *2. 

  10. Id. 

  11. Id. 

  12. Id. at *3-*4. 

  13. Id. at *4. 

  14. Id. 

  15. Id. 

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Legislative Update: What changes can you expect to see in your community?

Going green: Solar energy is a hot topic with the legislation having already amended Civil Code § 714 to make it easier and more cost effective for homeowners to have and install solar energy systems.1 Brace yourself; more changes are on their way! The legislature has introduced a bill that would effectively make clotheslines solar energy systems.2 This bill will amend Civil Code § 714(a) to provide:

Any covenant, restriction, or condition contained in any rental agreement, lease, deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system, including a clothesline, is void and unenforceable.

Should this bill pass, associations will have to allow homeowners line-dry their clothes with little regard to the impact the clotheslines have on the aesthetic appeal of the community.

Adding to the Annual Budget Report: We are all familiar with the annual budget report and the extent to which associations are required to provide homeowners with an abundance of information as enumerated in the Civil Code § 5300 and possibly the CC&Rs. The list of information to be provided is growing, as the legislature has introduced an assembly bill that would require Associations to also inform the homeowners of the Association’s FHA status.3

This bill will amend the Civil Code § 5300 to include subsection (10), which will require associations to include the following in their annual budget report, “[a] statement describing the status of the common interest development as a Federal Housing Administration (FHA)-approved condominium project pursuant to FHA guidelines, including whether the common interest development is an FHA-approved condominium project.”

Additionally, Civil Code § 5810 will be amended to require Associations to provide the homeowners notice of any changes to the FHA status as soon as is practical.

These bills are currently pending, and have not become law yet. Our office will monitor and continue to update you once the bills are voted on.

  1. See AB 2188. 

  2. See AB 1448. 

  3. See AB 596. 

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Introducing Rachael!

We’re excited for you to get to know Rachael a little better! Rachael began working as a law clerk at Silldorf & Levine while attending the California Western School of Law, and now holds the title of the firm’s newest attorney. One of the aspects of community association law that appealed to Rachael is that since HOAs can face so many problems, no day of work is ever the same!

“I knew [while in law school] that I liked general counsel and transactional work and focused most of my education in related areas. HOA law provides me with a wonderful opportunity to do both! I get to help associations resolve disputes and answer legal questions. I get to review contracts and CC&Rs, something I am particularly interested in. I also love that no day is the same. HOAs face all sorts of problems. There is more to HOA law than CC&Rs and the Davis-Stirling Act. HOAs face matters including, just to name a few: issues pertaining to landlord tenant relations, real property, safety and liability, employment, construction, and liens other than assessment liens. It is a wonderful area of law to practice.”

Rachael grew up sailing, learning the day she could hold a tiller. Sailing classes started at the age of seven and by eight years old, she was racing sailboats out of Southwestern Yacht Club. Racing quickly became a passion, providing Rachael with the opportunity to travel the country; she also lived on a sailboat for five years to learn more about the community and boating lifestyle. Although she is no longer racing, Rachael remains an active member of the Southwestern Yacht Club. Serendipitously, sailing class at the Yacht Club was also where she met her husband Ross.

You’ll be seeing more and more of Rachael as she continues to attend events on behalf of Silldorf & Levine for the Community Associations Institute, California Association of Community Managers, and other industry organizations.

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The Great Hardwood vs. Carpet Debate!

Living within a condominium complex has its benefits and disadvantages. One of the benefits includes an association that generally cares for and maintains the landscape, roofing, and other common areas. One particular disadvantage, however, is the noise that can result from high density living spaces with shared walls, floors, and ceilings. People are, of course, inherently different and enjoy different things that may or may not create more noise than desired by others.

For example, some residents have an innate love for plush carpeting, while others couldn’t live without hardwood floors. Does it really make a difference as long as you have the flooring you desire in your own living space? Add to the mix a pair of stiletto heels or a clumsy individual who has a horrible habit of dropping everything he or she comes into contact with and yes, it will make a difference.

Whatever the reason is for your love of hardwood floors, the neighbor that lives below you will thank you if you include area rugs in your interior design plan, as well as invest in slippers! Hardwood floors can cause much more noise than carpeting. In fact, associations may have specific CC&R provisions addressing the type of flooring that can be installed, and the good news is that these provisions, within reason, are enforceable.

Ryland Mews Homeowners Association found itself in this exact dispute. Ruben Munoz, the homeowner residing on the second story, installed hardwood floors.1 His wife had severe allergies and could not live with carpet2. Mr. Munoz, however, did not seek approval from the association for his flooring decision.3 The neighbors that shared their ceiling with Mr. Munoz’s floors were inundated with noise that they considered “‘greatly amplified’ and ‘intolerable.’”4

The CC&Rs for this association specifically restricted homeowners from altering units in “any manner that would increase sound transmission to any adjoining or other Unit, including, but not limited to, the replacement or modification of any flooring or floor covering that increases sound transmission to any lower Unit.’”5 Written approval from the association was also required before modifying or replacing flooring if the new flooring could result in increased noise.6 The CC&Rs also spelled out – as CC&Rs tend to do! – that homeowners could not cause a nuisance.7

A California Court of Appeal determined the flooring caused a “‘great nuisance’” to the neighbors.8 Rather than force the immediate removal and replacement of the flooring, the court was fair and required area rugs to be utilized until the association design review committee could agree on plans to modify the flooring so that it conformed with the CC&Rs.

Living in a condominium complex requires a balancing of interests and compromise as exemplified in the Ryland Mews Homeowners Assn. v. Munoz case. This case does not ban hardwood flooring; however, it does allow associations to have restrictions on flooring that could cause a nuisance, which is beneficial for associations and homeowners. Associations, within reason, have more authority to control the interior of a unit in order to provide for every homeowner’s quiet enjoyment of his or her home.

  1. Ryland Mews Homeowners Assn. v. Munoz (2015) 2015 WL 394513, 1. 

  2. Id. 

  3. Id. 

  4. Id. 

  5. Id. at 4. 

  6. Id. 

  7. Id. 

  8. Id. at 5. 

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Enforcing the Right Documents!

The CC&Rs are the central ingredient of what makes a Common Interest Development tick. Homeowners and associations alike use the CC&Rs as both a sword and a shield. If you have ever asked, “can Jon Doe or Mary Anne do this,” the CC&Rs were likely the first place you went in search of the answer!

The CC&Rs have an additional function that makes them that much more powerful: the prevailing party of a legal action taken to enforce the CC&Rs may be awarded attorneys’ fees. This particular prowess comes not from the CC&Rs, but from the Civil Code.1 Essentially, it means all those invoices from your attorney will be paid for by the party that lost.

There are three requirements that must be met to be awarded attorneys’ fees:

(1) the action taken must be to enforce governing documents;
(2) the governing documents must be for a Common Interest Development; and
(3) the party seeking attorneys’ fees must be the prevailing party.2

Sounds easy, right?

In the 2015 case of Patterson v. Sherwood Valley Homeowners Association, we learn, however, that it is not always so cut and dry. In this case, the development happened to be located next to a park, and both the development and the park had their own sets of CC&Rs.3 The association was given authority to manage both the park and the development, and in doing so, the association planted trees that eventually obstructed Patterson’s view of the lake.4 Patterson sought to have the CC&Rs enforced, and alleged, among other things, that the association created a nuisance by “‘extensively over-planting’” the park “‘with a variety of rapidly growing trees.’”5 The trial court eventually determined that Patterson “did not have a right to an unobstructed view of the lake,” and that she could not actually seek to enforce the park CC&Rs.6 The association, therefore, prevailed in the action and sought attorneys’ fees.7

The association was not, however, awarded the attorneys’ fees, which may seem to go against what has been stated above. So, why did this happen?

The answer: the park, while it had CC&Rs, was not a Common Interest Development as defined by the Civil Code, and the plaintiff sought enforcement of the park’s CC&Rs, not the development’s CC&Rs. Therefore, there was:

(1) an action to enforce governing documents; and
(3) a prevailing party;
but there were no (2) governing documents from a Common Interest Development being enforced, since the CC&Rs being referenced were that of the park.
Thus, while requirements 1 and 3 were met, requirement 2 was not and the prevailing party could not, therefore, be awarded attorneys’ fees.8

Associations should take caution to ensure that the documents being enforced are those of the Common Interest Development and not a different neighboring entity. While the association may still have to enforce the neighboring entity’s governing documents as in Patterson, it should be aware that there may not be a right to recover attorneys’ fees.

  1. See Civil Code § 5975. 

  2. Civil Code § 5975(c); Patterson v. Sherwood Valley Homeowners Association (2015) 2015 WL 81914 (unpublished). 

  3. Patterson, 2015 WL at 1. 

  4. Id. 

  5. Id. at 1-2 (quoting the original complaint). 

  6. Id. at 2. 

  7. Id. 

  8. Id. at 2-5. 

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