Reader Questions - Do Off-Site Owners Have Rights?

Hi Kelly,

I live part-time outside the USA. I asked my (self-managed) HOA to send all available notices and disclosures to my secondary address, which I designated as my e-mail. They claim that they will not accept an e-mail as secondary address and insist on a post office box or a physical location. I refused to give it to them since I have suffered identity theft in the past and also I travel, so e-mail seems to be best. Can an e-mail address serve as secondary address or must it be only snail mail?

P.K., Hemet

Dear P.K.,

Under Civil Code 4041, the association is required to ask you each year to designate to which address to which you wish communications to be sent. Under Civil Code 4040(a)(2), you may designate an electronic mail address to the HOA as the legal address for notices. However, Civil 4041 does not specifically reference electronic addresses. When considering the option of owners under Civil 4040(a)(2) to choose e-mail, this looks like a conflict between the two statutes. I think the most reasonable way to harmonize these two different laws is to say that Civil 4041 was not intended to bar people from opting for electronic notices, so that the association (including yours) must respect the election of any owner to choose electronic notices instead of postal.

Using an electronic address saves the association money in postage and copy costs, as well as saves the management some labor in preparing mailings. Associations should not only accept electronic addresses but should encourage them. Why not use a method of communication which is cheaper, less work, and requested by the member?

I hope your HOA realizes they can save time and money here in cooperating with you. Forward-thinking homeowner associations can also save by encouraging all their members to authorize e-mail.

Best,
Kelly

Dear Mr. Richardson,

I own a house in a planned development with various amenities. Our HOA fees are to maintain the various recreational amenities. The owners on the grant deed have access to all facilities. If I rent the house and live out of the area, I can’t let my tenants use them even though I’m paying my share of the cost to maintain it all. The use is non-transferable. Is this legal? Am I stuck? Is there any recourse?

B.M., Desert Hot Springs

Dear B.M.,

Common area use rights, including amenities and community facilities, normally go with the right to use the home. So, if one rents the home to someone else, the tenant also automatically receives the right to enjoy the common facilities, and the landlord, in giving up (through rental) the right to use the residence also transfers the right to the common facilities.

Under the 1995 appellate decision of Liebler v. Point Loma Tennis Club, non-resident owners can be denied access to common area facilities. However, in your case, the HOA is doing the opposite – banning your tenants from common area. This may violate your property rights as well as the CC&Rs. Perhaps the HOA, or better its attorney, should take a look at this. When your tenant rents your property, the tenant normally receives all the rights of that property, including the common area use rights.

Hoping this helps,
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®.