Reader Questions - Complaint Information, Prescriptive Easements

Dear Mr. Richardson,

I received a notice from my homeowners association stating that I have a tree on my property that is too tall and should be cut in half or removed. Admittedly, it is a little tall (no taller than many others in the neighborhood ) and I don’t mind trimming it. Do I have the right to know who complained?

K. G., Lake Forest

Dear K.G.,

It is great you are cooperating with your association, for the benefit of your neighbors. You have substantial rights regarding association records, but complaint information is not among the records you have a right to see. Civil Code 1365.2 lists a wide variety of financial records members may review. I am also often asked if a member has a right to see disciplinary files regarding a complaint against them by a neighbor.

I always prefer neighbors to work together, and to express concerns directly to neighbors, but not everyone is comfortable doing so. Some are afraid of retaliation, and others are uncomfortable being the “bad guy”. Revealing complaint information is a bad idea.

In your instance, I am assuming you would like to know so you can apologize to the complainer, and assure them you are handling the issue. Perhaps you could ask the association board or management to relay it to the complainer for you. If the complainer wants to reach out to you, then it is their choice.

Thanks for your question,
Kelly

Dear Mr. Richardson,

I enjoy your newspaper articles and just went on line to view your other articles hoping to find an answer to this question I need an answer ASAP.

The president of our Association wants to extend the fence and replace the present security gate and lock, that closes off the existing opening that the people in the adjacent building have been using for many years.

My biggest concern is, after all these years, the people in the adjacent building have had the access to use that gate, Would this be considered an easement, and could the association be liable for closing it off?

P.M.G., Los Alamitos

Dear PMG,

Managing the common area is a normal board function. I hope your association president is not pursuing this unilaterally, because such a decision is normally outside the very limited powers of the common interest development president, and would require a board decision in an open meeting. The board would consider cost, appearance, impact upon members in the community, and, here, how the action could impact adjacent neighbors.

Under the right circumstances, it is possible that cutting off a neighbor’s longstanding (five years or more) access route through your association property could violate what the law calls a “prescriptive easement”. A prescriptive easement is an access or use right which arises not from an express agreement but from a longstanding use of the property without permission of the owner.

To determine if your association is at risk in this area, you may want to consult your association attorney or a real estate attorney in your area. The answer depends upon a number of factors.

Another approach might be to contact the neighboring property owner and find out if they have an objection to the change in the access.

Hope it works out,
Kelly

Reader tip: Is your manager credentialed? They should be – ask them.

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®.