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Prohibiting Certain Fines on Members during a Drought.

December 15, 2014 Leave a comment

A homeowners association or HOA is no longer allowed to impose fines against members who reduce or even eliminate watering their lawns during a declared state of emergency due to drought, despite any provision in the association’s governing documents to the contrary. Recent bills have amended Civil Code Section 4735 of the Davis-Stirling Common Interest Development Act, which originally prohibited an association’s regulation of low-water using plants as a group and water-efficient landscaping. The latest change is in a subsection (subsection (c)), which prohibits an association from imposing fines against members who reduce or eliminate watering of vegetation and lawns during any period for which the Governor or a local government has declared a state of emergency due to drought. Section 4735 can be found below, with the amended subsection in Bold. As this drought continues and we are under a declared state of emergency statewide, Boards of Directors and property managers should think twice before fining members who stop watering their lawns or landscaping.

Civil Code Section 4735:

(a) Notwithstanding any other law, a provision of the governing documents or architectural or landscaping guidelines or policies shall be void and unenforceable if it does any of the following:

(1) Prohibits, or includes conditions that have the effect of prohibiting, the use of low water-using plants as a group or as a replacement of existing turf.

(2) Has the effect of prohibiting or restricting compliance with either of the following:

(A) A water-efficient landscape ordinance adopted or in effect pursuant to subdivision (c) of Section 65595 of the Government Code.

(B) Any regulation or restriction on the use of water adopted pursuant to Section 353 or 375 of the Water Code.

(b) This section shall not prohibit an association from applying landscaping rules established in the governing documents, to the extent the rules fully conform with subdivision (a).

(c) Notwithstanding any other provision of this part, an association, except an association that uses recycled water, as defined in Section 13050 of the Water Code, for landscaping irrigation, shall not impose a fine or assessment against an owner of a separate interest for reducing or eliminating the watering of vegetation or lawns during any period for which either of the following have occurred:

(1) The Governor has declared a state of emergency due to drought pursuant to subdivision (b) of Section 8558 of the Government Code.

(2) A local government has declared a local emergency due to drought pursuant to subdivision (c) of Section 8558 of the Government Code.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

HOA’s Should Not Fine for Water Conservation!

September 26, 2014 Leave a comment

In another year of severe drought, California faces a historic water shortage and wildfire danger. Matters are expected to worsen, as California’s rainfall and water supply has been dwindling. In response Governor Brown signed an Emergency Drought Proclamation in January 2014 declaring a state of emergency and calling upon all Californians to voluntarily reduce their water usage by 20 percent. Some residents of homeowners associations (“HOAs”) began responding to the Governor’s plea by reducing their irrigation, only to find themselves subject to HOA fines for failure to maintain their yards.

In partial response, in April Governor Jerry Brown signed an Executive Order which effectively prohibits HOAs from fining, or threatening to fine, homeowners “who comply with water conservation measures.” The Order further provides that “any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive.” One of these water-saving measures is to limit outdoor watering to no more than twice per week. The California Legislature has also considered various bills to address the drought conditions and HOAs, and we will report on each of these bills in future law blog updates. For now, AB 2100 (Campos) would prohibit HOAs from imposing a fine or assessment against a member for reducing or eliminating watering of vegetation or lawns during a Governor-declared state of emergency, or a local government-declared emergency, due to drought.  AB 2100 was approved by the Governor on July 21, 2014 and is effective immediately, and has amended Civil Code Section 4735 accordingly.  If you are involved in an HOA and have a legal issue, please feel free to contact us for a consultation.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

Architects owe a Duty of Care to Future Homeowners

July 7, 2014 Leave a comment

In Beacon Residential Community Assoc. v. Skidmore, Owings & Merrill (No. S208173), the California Supreme Court expanded the potential liability of architects who are the primary designers of a residential building, typically a condominium development.  The Supreme Court held that an architect owes a duty of care to future homeowners in the design of a residential building where, the architect is a principal architect on the project, that is, the architect, in providing professional design services, is not subordinate to other design professionals. The duty of care extends to such architects even when they do not actually build the project or exercise ultimate control over construction.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

Smoke Detector Compliance Law Change

January 30, 2014 Leave a comment

Commencing July 1, 2014 under SB-745, all smoke alarms including combination smoke alarms, that are solely battery powered shall contain a nonreplaceable, nonremovable battery that is capable of powering the smoke alarm for at least 10 years. This is a slight extension as this change was going to be effective on January 1, 2014. There are also EXCEPTIONS: This section shall not apply to any smoke alarm or combination smoke alarm that has been ordered by, or are in the inventory of, an owner, managing agent, contractor, wholesaler, or retailer on or before July 1, 2014, until July 1, 2015. The amended law is in Health and Safety Code Section 13114.

- All Rights Reserved © 2014 by Michael L. Mau, Esq. and The Mau Law Firm

San Miguel v. State Farm finds No Duty to Defend Non-monetary Claims

October 22, 2013 Leave a comment

In the recently published case of San Miguel Community Assn. v. State Farm General Ins. Co. (October 1, 2013) (Cal.App.4th, No. G047738. Fourth Dist., Div. Three.), a Court of Appeals ruled that when an insurance company issues a liability policy, agreeing to indemnify its insured against a third party claim for damages covered under the policy, and to defend the insured against any such claim, the insurer does not have a duty to defend the insured against a third party lawsuit seeking only injunctive relief but no compensatory damages.  The insurer’s defense obligation requires it to provide the insured with a defense against a claim seeking damages potentially payable under the policy, not to defend the insured’s honor or otherwise assist it in resolving a non-monetary dispute which a claim for pure injunctive relief was.  It is important when tendering claims to your insurance carrier, to check that the claim has potential coverage and to engage experienced business and insurance law counsel to assist.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

MacDonald v. State affirms employees must exhaust Administrative Remedies before Suing

August 28, 2013 Leave a comment

In MacDonald v. State of California [No. C069646. Third Dist. Aug. 27, 2013] as just published, a Judgment for defendant-employer on plaintiff’s claim for retaliatory discharge was affirmed. The appeals court held an employee must exhaust the administrative remedy set forth in Labor Code section 98.7 before filing suit in superior court for retaliatory discharge in violation of sections 1102.5 and 6310. Labor Code Section 1102.5 is a whistle-blower statute, the purpose of which is to encourage workplace whistle-blowers to report unlawful acts without fearing retaliation. Though this whistle-blower statute does not itself have an administrative remedy, Labor Code Section 98.7 does reference one and the appeals court held that must be exhausted first, and prior to, filing a lawsuit for retaliatory termination.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

Cal. Supreme Court Enforces Public Records Act

July 9, 2013 Leave a comment

In Sierra Club v. Superior Court (No. S194708), the California Supreme Court just issued its ruling enforcing a Public Records Act Request under Government Code Section 6250, et seq. The Supreme Court ruled, that the lower court had improperly denied the Sierra Club’s petition for writ of mandate to compel a defendant-county to provide the Orange County Landbase, a geographic information system (GIS) database in a GIS file format as a public record for a fee covering only the direct cost of duplication. The Supreme Court held that 1) although GIS mapping software falls within the ambit of the computer software exclusion under the California Public Records Act, a GIS-formatted database like the OC Landbase at issue here does not; and 2) accordingly, such databases are public records that, unless otherwise exempt, must be produced upon request at the actual cost of duplication. Key to the ruling it seems, was the principle that the Public Records Act and the California Constitution provide the public with a right of access to government information, and that “Openness in government is essential to the functioning of a democracy.” (Citations omitted). Ultimately, the Supreme Court sided with the public’s right to access of such public government records.

- All Rights Reserved © 2013 by Michael L. Mau, Esq. and The Mau Law Firm

 

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