Don't Act Alone

W hat do Electric Vehicle Charging Stations, Solar Installations, and Satellite Dishes Have in Common in a Homeowners Association?

ANSWER: You need good preparation, communications, policies, and recordable agreements to cope well.

Each year it seems, HOA Boards have yet another responsibility to pay attention to. Advocates for owner rights keep pushing and Boards push back and the final stages of each tug of war take place in Sacramento. Truth is something always gets through the sausage mill that is the stuff of "law making." Do you know why this is? I guess I've said it 100 times if I have said it once - some boards don't treat owners like human beings. Some boards see progress and change as budget blasters and pinch pennies until they squeak. Some boards are asleep at the wheel. Some "old guard" or "power hungry" boards simply ignore what is right, what is necessary, given governmental entitlements and edicts issued from on high ... whatever "high" is these days-it's hard to put politicians on any kind of pedestal after the dismal charade in the 2016 election coming from the top of the heap.

But I digress.

The purpose of this E-newsletter is to enlighten you on the what and why of learning how to live with change and added obligations, and how to protect the HOA, and how as Owners who want to take advantage of legislative marching orders will need to help bear the brunt. The better plan an HOA has going forward each time another layer of responsibility is added, the easier the job will be, and the less likely the necessity of doubling or tripling the legal cost line item budget for 2017.

Do I have your attention yet?? Good, I will tell you what all of the topics listed in the title of this newsletter have in common. Things will go more smoothly if the Board does not bury its head in the sand and leave the HOA's derriere exposed to the wrath of an angry homeowner who wants what they want and hey, guess what - they are entitled to it.

A proactive community board tackling ANY OR ALL of these subjects head on by communicating with owners and seeking solutions will minimize the possibility of upsetting owners, being the recipient of obnoxious criticism and rebellion, and will be more likely to avoid excessive legal costs that seem to occur when the two sides hire lawyers and the dispute is taken out of the hands or control of the Board. Did you know that if a party is known to be represented by counsel the other side's attorney has to communicate with the lawyer ONLY. It's a California ethical rule. So, if the dispute goes to the lawyers chances are you will spend a lot more money than if you do what I suggest in this newsletter.

A proactive board that investigates the best options for policy making and takes preventive measures at the earliest opportunity after each new requirement is added will be less likely to find themselves arguing with each other or owners over who has what rights and what limits on those rights. I also have said many times over the years on many topics, the glory of policy setting is that it is harder to argue with a piece of paper than a board president or manager.

A board that educates itself on the requirements for these items will be prepared for any know-it all owner or attorney who would actively seek out any opportunity to embarrass a board.

As to these items (EVCSs, solar, and satellite dishes) in HOAs - What Criteria is Important?

That the Board accept the new laws and requirements with grace. Guess what? If a board gracefully accepts it when the law changes to mandate some owner's right, it gets you started on the right foot. Nothing is more upsetting than to get into an argument with an owner or his or her attorney when it could have been avoided if the focus started out in a state of grace. Take satellite dishes for example. When laws were passed at the federal level requiring boards to allow owners to have satellite dishes, many boards went into a panic about the possibility of "dotting the landscape" with satellite dishes and said no. NIMBY they would clamor. Hence, when a normal person heard through the grapevine that the feds had said he or she could have their own satellite dish they assumed it was so and were abashed when their boards said "no". The same thing happened with solar installations and now with EVCSs. Why waste energy fighting something that promises to be a losing battle?

That the Board get a policy together and circulated to owners for comment. In order for a Board to set policy, it must educate itself on the parameters of the law. That is not always easy nor convenient. If all directors are too busy or burned out with life the goal needs to be to figure out who to listen to, who is the most qualified source for the information you need. To figure out what EVCS options, satellite dish placements, or solar installations are even possible the type of expertise you need is a reputable provider of these items. A lawyer can tell you whether and where you should not allow these improvements and what rights you have as to placement, screening, type, and what legal and insurance requirements are, but lawyers aren't the best source to determine whether the electrical systems can take on extra drain or the satellite dish wires can be hidden or which solar installation is suitable for your type of roofs or which could be effective sitting in the back yards.

The great thing about getting a policy together that is feasible, workable, and legally enforceable is that the owners have guidance when they decide to "shop" for these items. People are like sheep, most will follow instructions, and those that would challenge the board hoping to win will be less apt to find satisfaction or success if the Board knows more than they do - and this knowledge comes through the investigation that leads to the policy setting. And there's that "piece of paper" thing resolving many arguments before they even get off the ground. When you get out ahead of the curve with pragmatic handling of anything, you have a sturdier foundation and the luxury of support as you stand your ground.

For example, the EVCSs legal mandates include a host of obligations of owners, that they pay for the power, the installation, the insurance coverage, etc. But in order to make this happen, the Board needs to know what the options are to put these things in place without jeopardizing the HOA. Satellite dish mandates are the same, they provide many protections for the HOA. For example boards may control placement as long as the owner can still get a signal, so boards can protect roofs and roofing warranties by limiting placement to chimneys or eaves. With regard to solar, boards can consider policies that will assist them in avoiding approval of an installation that would prevent a like request from another owner because too much roof space was allotted to one owner. For all of these subjects there is different treatment in the law and practically with regard to rights in a planned development where the improvements can be installed on a Lot owned by an individual verses installation in a condo development where the buildings and common area are owned collectively. And although "impossibility" is a recognized legal defense to a demand that someone do or allow something to be done, boards tend to say or assume installations in these areas are impossible or improbable without the investigation of the possibilities (or lack thereof) to back the statement up.

That the Board beef up its architectural review process to deal with the requests in an appropriate and expeditious manner. Boards that have let the architectural review processes lag or dissipate over the years can as one way of dealing with laws like those for EVCSs, satellite dishes and solar installations beef up the processes. All three of these legislative mandates require architectural review and approval if the HOA documents provide for it. Most HOA documents do have (sometimes buried) the right to establish and enforce architectural review processes. All three of these subjects require expedited or timely review of plans that are submitted. The legislators have included these requirements to prevent boards from dragging their feet.

That the Board consider the benefits of requiring a recordable agreement for any or all of these improvements. How are you going to make sure that new owners understand any obligations that are imposed on the owner when any of these improvements are installed? How are you going to make sure that the HOA is protected beyond what the law provides? For example, the following things are important and are NOT written into the laws: requiring the owner who wants one or more of these improvements to accept complete responsibility for any losses the HOA suffers because of the improvement, to indemnify the HOA if the improvement causes harm or damage to person or property, to get a municipal permit if one is required in the locality, to use licensed and insured contractors for the installations, to remove the improvement if it is placed in an alternate location that has not been approved, or allowed to deteriorate, or to remove and reinstall at the owners expense if repair or maintenance is needed in the area where the improvement is installed, to cover all or a portion of the cost of the review process and any required recordable agreement and to inform any potential buyer or successor owner of the property of these obligations.

It is critical to accept a legislative mandate that says an HOA must allow an owner the right to have something when the lawmakers state a need to address a public or societal issue. . The law never speaks in terms that say: "if it's convenient" or "if you feel like it". The laws commonly allow some concessions like imposing placement restrictions, requiring screening, and addressing safety and other protections to balance the impact, and the laws generally allow for reasonable rules. But can you just say no? I believe you are playing with fire if you do, unless you have done the research and investigation and can substantiate from your findings, based on credible evidence, that the installation would either create a safety concern, impose an irrational burden on the community, or that allowing the installation would be impossible because of the configuration of the development.

Take a look at the new EVCS law - it doesn't say the HOA is fine and dandy if it has no extra parking spaces for EVCS stations, it says it can usurp a space already designated for exclusive use and can even create new parking spaces in the common area without going to the owners for approval.

HOAs have settled in and many have dealt either proactively (or effected change after a legal battle or egregious dispute with an owner) with solar and satellite dishes because those laws have now been in effect a few years or more. On the table currently are the laws requiring HOAs to find solutions for charging electric vehicles. According to many sources on the internet, the production of Electric Vehicles will show a surge of 67% this year, and one can only imagine where this is going over time into the future. Don't be the last holdout. Get going on your investigation of options, document your efforts, if you do say no be prepared to defend based on your findings (because your frustration in having to deal with requests will NOT serve as a defense), and if there are options, begin to implement them. Get a policy in place for the benefit of current and future board members, and for owners' benefit. Get a recordable agreement in place and some parameters from your attorney about who pays and how much for such an agreement. If owners know ahead of time that they may be paying a considerable amount of money for installation, power supplies, and insurance, they may not run out and buy that electric vehicle just because the salesperson (erroneously, or not, given the facts as to whether there are possibilities) says HOAs have to supply power.

You may or may not have been involved early debacles with the satellite dish laws. There was a lot of press and hipe in the news noting that owners in HOAs could have satellite dishes, and salesmen rode the wave, telling owners the HOA could not prohibit them. Boards that were not proactive found themselves dealing with lots of unapproved installations, breach of roof warranties, unacceptable placements, and excessive legal fees trying to get things back to square one. Don't be that HOA. Get the information you need also on what costs you can pass on to the owner legally. The solar and EVCS laws do speak to the issue of making the approval process so onerous that owners would have to spend an excessive amount of extra money to satisfy the HOA's requirements. The laws talk about what unreasonable excess costs are.

As for resources on the legal and practical aspects of having to consider approval of these improvements, you can arrange for legal services or a consultation and find lots of free information as well by visiting all areas of this website.

Check out the articles, and the blogs, as I have written on these topics prolifically. Check the E-news archives and get signed up for future E-newsletters so you can remain in the loop. As always this year I will be addressing new laws and cases in the coming months in the blogs and E-newsletters. I don't add articles as prolifically as I used to because the blogs and E-newsletters reach such a larger audience. This their archived items are a very good source for information on all of these and other topics as well.

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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 and navigate to the store directly. Check out the articles, E-news archives and blogs first to see if you can find what you need here at the website. When ready, go to the store and see that there are tabs for the Books, Primers, Forms and Guides.

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Be sure also to visit the website and sign up for the next free E-News now! It's never too late. And watch the blogs for the hottest topics! If you want to unsubscribe, please do so when you get the newsletter. Sending an email doesn't always work because I don't keep the list, Constant Contact does.

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".

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The information provided here is for advertising and informational use only and does not constitute legal advice or create an attorney-client relationship. Everyone should consult with legal counsel in all cases where legal representation or advice is desired.

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