Reader Questions - Relocation Cost, A New/Old Architectural Rule?

Mr. Richardson,

I live in a townhouse complex. The HOA is planning on termite tenting the buildings. My boss who is also a lawyer and real estate broker told me that they have to compensate us for moving- they can’t force us to pay for other lodgings and our home payments at the same time. Is this true? How can it be legal to force people to move out and pump their homes full of poison?

Thank you so much for your time,

B.G., Tarzana

Dear B. G.,

Sorry, but your attorney boss is wrong. Civil Code 4775(b) says that, unless your CC&Rs say otherwise, if the HOA needs you to leave your home so the HOA can perform some repair or maintenance, the cost of temporary housing is your own. Civil Code 4785 requires the HOA to give you 15-30 days written advance notice before termite treatment. One of the HOA’s most basic responsibilities is the care of common area, and as long as the board operates within the Business Judgment Rule (including with reasonable expert input), the law will support it.

Thanks for your question,

Kelly

Dear Kelly,

I purchased my condo many years ago with the existing windows installed. I was never told that my condo was in violation regarding anything. I recently received a letter from the HOA’s attorney telling me that my condo is in violation due to the unapproved color of the window frames. I found out a rule regarding the window frame color was introduced just last year.

I think that new rules should not apply to me, since they were introduced long after the purchase of my condo. I told the HOA that the rules when I purchased the unit did not specify anything about window frame colors and that it is not right to apply the 2013 rule to my case. They said that I do not have all the rules in my booklet and the rule has been there since the 90’s. I asked them to provide me those rules, and they said the 90’s rules are somewhere in an archive room and I will have to pay $90 per hour to have them look for it.

C.P., Orange

Dear C.P.,

Rules, under Civil 4350, must be in writing to be enforceable. If the HOA did not notify you of the rule when you became a member, it may have great difficulty trying to enforce it.

If there is in fact a longstanding rule in place, under Civil 4530(a)(1) the HOA must give you a copy of all of the governing documents (including rules) within ten days of your written request, and under 4530(b) can only charge its actual reasonable cost to do so. However, if the HOA only has the rule in its old stored records, it probably never notified you in the first place.

Civil 4525(a)(5) (when you bought, it was Section 1368) required your seller to inform you of any notice of violation received from the HOA regarding the residence.

Boards should deal fairly with homeowners who are instantly in violation because of creating a new rule. Sometimes “grandfathering” such owners is reasonable, but if the violation is a serious matter, the rule may need to be enforced – the key is reasonableness and consideration of all factors.

Thanks,
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®.