ASSOCIATION ISN’T HANDLING COMMON AREA
Our deck, which is the HOA’S responsibility, has been rotted and deemed dangerous to walk on for over two years. The association claims they are fixing the decks one by one as they get the money. We are finding it hard to rent the unit because of the unavailability of the deck. Does the association have to levy a special assessment, or do we just have to wait?
The obligation to maintain common area normally arises from the CC&RS and Civil Code 4775. The statute does not allow for a financial hardship exception. Associations should pursue common area repairs with reasonable diligence, and that sometimes can require a special assessment or bank loan. Under Civil Code 5551, new in 2020, HOAS are required to inspect a sampling of “exterior elevated elements” every nine years, with the first inspection completed by 2025. The statute also does not contain a financial hardship excuse. A safe building is a paramount concern. If someone is hurt by a known unsafe condition, it may not be a sufficiently strong defense to say “but we didn’t have the money for repairs.”
When I moved into my home many years ago, the CC&RS stated that if a neighbor’s trees were growing above the roof line we should send a letter to our association and they in turn would send a letter to the offending homeowner requesting the trees be trimmed. I sent a letter to my association asking that they notify my neighbor as to the trees that were blocking my view. They responded that from that point forward we would have to correspond directly with said neighbor. I would like to know if the association can change the rules without a vote from the homeowners. If so, what authority would allow them to do so? Needless to say, this is causing animosity within our neighborhood.
The story you relate sounds similar to a case decided in 2008 called Ekstrom v. Marquesa Beach HOA. In that case, the HOA had a restriction limiting tree height to the roof line. Some palm trees violated that restriction, and the board decided to interpret the provision as not applying to palm trees (since cutting off their tops would effectively kill them). The appellate court said that the normal discretion accorded HOA boards did not extend to ignoring clear language in the CC&RS. The great discretion given to HOA boards by precedents such as Lambden v. La Jolla Shores Clubdominium is not unlimited, and such discretion still must be accompanied by compliance with the Business Judgment Rule. A common mistake by HOA boards is to simply invoke their discretion without first meeting the Business Judgment Rule requirements of acting in good faith, in the best interests of the community as a whole, and upon reasonable inquiry (aka “due diligence”). The Ekstrom case is a reminder that the Business Judgment Rule does not override the CC&RS. As to amending the CC&RS, no, that takes a vote of the homeowners except for three narrow circumstances. The board can amend rules, but not CC&RS.
Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | Denichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.hoahomefront.com.