Responsible

Some new laws took effect this year that have illustrated exactly what happens when boards take a hard line on the wrong side of important social and political issues like the drought, energy preservation, and low income families. The laws signed this year force boards to take a 180 degree about face with regard to fake grass and clotheslines. NIMBY didn't work for the HOA boards. NIMBY is an acronym for the phrase "Not In My Back Yard."

The term came about as a judgmental characterization of opposition by residents of a community of some kind to a proposal for some new development, business, or situation that threatens to move next door to them. Sometimes the residents even believe that the "situations" are an undeniable part of society - but that they should be someone else's problem. The opposing parties are sometimes called Nimbies. There were lots of Nimbies in the HOA world when it came to allowing fake grass and clotheslines.

History shows us that HOA directors who take strong positions to prohibit things they find offensive from occurring within their HOAs sometimes end up forced to change course whether they like it or not. As the times "are a changing" and societal and environmental pressures begin to weigh on the opposite side of a board's position, it's time to take a step back and get ahead of the curve. If you as a board are hearing rumbling in the association, rumors about what the more vocal owners are saying, or hear about legislative bills that relate to the drought, energy savings methods, or helping low income families, the last thing to do is to ignore these. They may well be "signs" of justifiable unrest and/or changing times. If you don't pay attention, the sparks can ignite a firestorm.

Hindsight is always more clear than foresight but in examining how you might get ahead of the curve, I'll take the recent clothesline law. When you first heard rumblings to allow clotheslines- which would allow owners to dry their clothes in their back yards and save money in their utility bills by retiring their clothes dryers, what was your reaction? If it was "no way, God made indoor dryers for a reason," think what may have occurred if you took a different approach with a more positive spin. Here's one possibility: "How might that work? Could we allow residents who want to conserve energy to use clotheslines without being really offensive to neighbors?" Here is another take on this: "What's the worst that can happen if residents are allowed to string a clothesline in their back yard or in their enclosed patio?"

To see what the members think, the board might have surveyed the membership. You could ask the members, "What would you think if we allowed residents to have clotheslines? If we were to consider this, what restrictions would you like to see imposed?" This would feel to the membership more like they might actually be able to contribute some constructive input, rather than feeling they might be shut out completely, or that the board would allow residents to go wild stringing up lines across their balconies for drying racks.

This would be responsible leadership. For the more ego-centric boards that are sure they know what's best for the community without asking, this would serve to gauge where the arrows are going to come from, and might even bring surprising results. A board is much better prepared to address any question that might lead to an emotional or political firestorm if it has gathered information from the community before proposing new rules or policy. And keeping a positive spin on the information gathering process leads to more useful responses. The same approach could have been used with regard to fake grass, or the right to have an electric car charger on premises, or a satellite dish, or neighborhood day care. Why am I bringing these things up? Because all of these things and many more have become the subject of forced policy for HOAs, due to resistance from the HOA communities to bend in the politically correct direction.

Let's take this year for starters [2015]. New laws require HOAs to allow clotheslines in exclusive use areas. The law is Civil Code Section 4750.10. As commonly happens from the HOA advocacy pushback, the law does allow HOAs to have reasonable restrictions. I will go into this in more depth in a concurrent blog which you can find at www.condolawguru.com. Legislative findings often accompany this kind of legislation and in this case, the legislative belief expressed in the record was that bans on clotheslines "prevent low-income families and energy-conscious persons from using a low-cost, low-technology energy conservation tool."

And also in 2015, through Civil Code Section 4735 HOA Boards have to accept some fake grass, again with reasonable restrictions. See the E-news archives here at for the September 2015 edition called "Do HOA Boards Have To Swallow Fake Grass? Click on http://www.californiacondoguru.com/CCNewsletter/CCNewsletters101.html.

Anyway, these two changes are just more of the same - laws that require boards to swallow their pride and accept the changing times.

Here is a sampling of some others I have written about (and which you can read more about in the E-news Archives) - HOA Boards ...

  • Must allow Owners to have agricultural gardens in exclusive use areas, with reasonable restrictions. May 20, 2015 E-news 98.

  • May not fine owners for letting grass die (i.e., failure to water) unless there is access to recycled water. May 20, 2015 E-news 98

  • Must allow owners to bring an attorney to an IDR meeting if desired. October 2014 E-news 91

  • Must allow Owners to have access to electric vehicle charging stations, with reasonable restrictions. March 2012 E-news 57, and August of 2011 E-news 32.

  • Must allow current Owners to lease their homes, with some exceptions for existing restrictions. June, 2008 E-news 12

The other things boards must do because of laws that were passed are not found in the E-news archives but here they are, along with the code references: HOA Boards ...

  • May not prohibit displays of the US flag, or exclusive use areas, with reasonable restrictions. CC 4705

  • May not prohibit display of certain signs on property or exclusive use areas, with reasonable restrictions CC 4710

  • Must allow Owners to have at least one pet, as defined. Civil Code Section 4715.

  • Must allow Owners in an HOA located within a very high fire severity zone, as designated by the Director of Forestry and Fire Protection or by a local agency the choice of at least one type of fire retardant roof covering material when reroofing. CC 4720

  • Must allow Owners in planned developments and exclusive use areas to have satellite dishes, with reasonable restrictions on placement and screening. FCC RULE 207

This following code section in the Davis Stirling Act addresses a plethora of subjects found in other areas of California Codes by pulling in the actual law by reference. See Civil Code Section 4700. HOA Boards ...

  • May not prohibit real estate signs, but allow reasonable restrictions CC SEC. 712 & 713

  • May not prohibit solar energy installations, but allow certain restrictions. CC SEC. 714 AND 714.1

  • May not prohibit modular homes, but allow certain restrictions CC SEC. 714.5

  • May not retain or enforce racial restrictions. CC SEC. 782, 782.5, & 6150 and GOV Code 12956.1

  • May not prohibit modifications of property to accommodate disabilities, with certain caveats. GOV Code 12927

  • May not prohibit residential day care facilities in HOAs, but allow certain restrictions HEALTH & SAFETY Code 1597.40

As you can see, the list is long. Some of these laws were passed either to codify existing case law and make it stronger, or to override existing case law to make it ineffective. In all cases, the new laws came out of complaints of disgruntled owners or strong advocacy groups standing up for constitutional rights and protections, environmentalists or drought protection advocates that were mad. And some of the laws touched on subjects appealing to legislators who found a common and popular cause that bolstered support at election time - legislators who did not sympathize with Boards in HOAs!

If there are strong disagreements between individuals and boards, there are informal meeting processes, and more formal processes like IDR and ADR including mediation. For community wide issues there are town hall meetings and surveys, open forum at board meetings and invitations to the community to provide feedback. Mediation for a group is just a process whereby a facilitator is brought in to lead a discussion to find out where there is common ground and how to bring a group or community into harmony, whichever side of the issue the majority settles on.

I am not suggesting that a board must give in to dissenters - however, there is benefit to avoiding butting heads as a strategy, or to end up having to do a 180 degree turn and end up with egg on face for having taken an unreasonably hard stance against change. Boards do well to listen to what is being said, and to avoid going to in the wrong direction on socially and politically correct matters, when there are ways to elicit information, facts and opinions sufficient to turn the tide in favor of what is good for the community in the long run.

Why let legislators set policy, when you have a choice to do some forward thinking in light of changing times? The choice I am talking about is finding out where the community stands on the matter and getting out ahead of the curve.

The January newsletter will focus on what the courts force upon HOAs and important cases from 2015.

Can you believe I passed to 100 mark on E-newsletters this fall when I was laid up with foot surgery. That's a lot of information, all of which is available to you at http://www.californiacondoguru.com/CCNewsletter/CCNframe.html

And at the same time I finished the Guide called THE SMALL HOA SURVIVAL GUIDE which is now available in the webstore under GUIDES here.

It is a new publication geared specifically to help small HOA boards but is filled with basic information on running an HOA and what is important. Many publications as well as the 2016 Davis-Stirling Act in Plain English which explains all of the laws discussed above are available in the Guru Webstore.

Just go to the webstore directly, or check out the articles, E-news archives and blogs first to see if you can find what you need. When ready, go to the store and see that there are tabs for the Books, Primers, Forms and Guides.

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WEBINAR SCHEDULE: I had planned to begin WEBINARS January 6th and the 20th but time got away from me, so look for the webinar schedule later in the spring. If you are signed up to receive this E-newsletter you will have plenty of notice about topics, dates and costs. Thanks for your patience! And patronage. Suggestions for webinar topics are welcome. I plan to have more than one track, for example, two each month for small HOAs, two for topics of homeowner interest specifically, and two for all boards, managers and owners generally.

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I am an attorney who serves homeowner associations and homeowners alike (not inthe same association of course). I am a frequent contributor to the Echo Journal and other similar publications in the State of California and also contribute articles on a national level. There are several publications written in plain English onmy website written specifically to help people who need information about California law as it relates to homeowner associations. There is a wealth of information here on the website. I like to do service and have been lucky enough to be named Author of the Year by CAI after my first book, and was named 2011 Volunteer of the Year by the Executive Council of Homeowners.

Check out the Main and Resource Pages at www.californiacondoguru.com

Check out the popular book called "THE CONDO OWNER'S ANSWER BOOK" and both blogs developed, one for everyone and one especially for homeowner questions: www.Condolawguru.com

Check out the webstore for helpful and affordable publications on various topics, including 3 books, 28 primers and 2 guides. Most popular subjects are THE DAVIS STIRLING ACT IN PLAIN ENGLISH (book), ENFORCEMENT, BOARD BASICS, ARCHITECTURAL AND LEASE LIMITATIONS series (primers) and the RECALL and INSPECTORS OF ELECTION guides.

I have a private law practice in Pleasant Hill, but serve homeowners association and homeowners throughout the State of California. My practice is in large part now web based and telephone consultations are available. I have clients all over the state and am a real "road warrior".

Copyright Beth A. Grimm, All Rights Reserved


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