Reader Questions - Children, Reserve Study Updates

Dear Kelly,

I was reading your column today and have a question I am hoping you can assist. I live in a condominium complex and we have several owners that have small children who play outside and make noise. There are now owners trying to eliminate the children from playing in and around the complex. They are calling them obnoxious and nuisances under a CC&R’s rule. They want to limit where and times when they can play. Can they do this as I don’t see children as being obnoxious or nuisances when they are merely playing.

Thank you, 

K.W., San Diego

Dear K.W.,

Rules cracking down on children are not only a bad idea; they violate state and federal Fair Housing Laws. “Familial status” discrimination includes restricting children, and is illegal.

Question for your association – would it be OK if adults pursued the same activities and made the same noise? Probably not- so if a rule is needed, it should be focusing upon the behavior and not the age of the person engaging in the behavior.

Except where very specific safety considerations are involved – such as the pool area, the recreation building or the gym- rules mentioning kids are most likely going to violate the Fair Housing laws. For more information, visit the California Department of Fair Employment and Housing at www.DFEH.ca.gov or the federal department of Housing and Urban Development at www.HUD.gov.

Thanks and good luck to your association,
Kelly

Dear Kelly,

I know an association is required to have a full onsite reserve study prepared every three years by a third party, but is an association legally required to hire a third party to complete the reserve study updates which the Board is required to “review” annually in between the every third years full study?

Can the Board update it themselves based on the last onsite study conducted by the third party?

A.B, Rancho Mirage

Dear A.B.,

Civil Code 5550 requires most common interest developments to have a “reserve study” every three years, examining the major components which the association maintains and repairs. The statute does not specifically state that the study must be prepared by a professional, but the requirements of the statute are such that it is a rare association board which would be justified in trying to prepare such a study “in-house” with volunteers. The study must include replacement cost estimations, and an assessment of the current condition and expected remaining life of common area components, so it is difficult to imagine a volunteer who is both qualified and willing to take on the responsibility.

The statute also says the “board shall review this study, or cause it to be reviewed, annually…” to see if any adjustments need to be made. This certainly would indicate that the annual reviews could be performed either by the Board or by a qualified professional. Ask your reserve study preparer to help train the board how to conduct the annual reviews, unless the cost is sufficiently modest that it is acceptable.

In California, reserve study preparers are not regulated. However, the Community Associations Institute has the “Reserve Specialist” credential – confirm your reserve study preparer has it. Also, for free general information, visit CAI’s Research Foundation at www.CAIRF.org and download its free “Best Practices” report on reserve studies.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. 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 [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.