Peters & Freedman, L.L.P.

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New Standard for Common Area Maintenance: Will it Survive Supreme Court Review?

(originally published in October 1998) Earlier this year, a California Appellate Court decided that an "objective test of reasonableness" should be used to decide whether a homeowners association has properly maintained the common areas, in the case of Lamden v. La Jolla Shores Clubdominium Homeowners Association. Before this case, the "Business Judgment Rule" was the [...]

By | May 25th, 2007|Cases & Laws, CID News, Maintenance|0 Comments

Time for a Change? Amendment of Your Governing Documents

- By Laurie F. Masotto, Esq. (originally published in October 1998) Are there provisions in your Association's CC&Rs that are too restrictive, outdated, developer-oriented, or are not detailed or clear so that they are difficult to interpret? Is there a provision regarding leasing, pets, or parking, that would better serve the Association if changed? Is [...]

By | May 25th, 2007|CID News, Enforcement|0 Comments

Dishes, Dishes Everywhere and Not a Bite to Eat!

- By James R. McCormick, Jr., Esq. (originally published in October 1998) What's round, less than a meter in diameter, and can be installed by an owner in a variety of places within the project with little or no Association regulation or interference? No, it's not the latest beanie baby, it's a satellite dish, or [...]

Prior Recorded Judgment Lien Prevails over a Later-Recorded IRS Tax Lien

- By Laurie F. Masotto, Esq. (originally published in July 1998) A recent U.S. Supreme Court decision could be helpful to homeowner associations in collecting judgments for delinquent assessments in cases where the Internal Revenue Service ("IRS") records a lien against the debtor's real property after an association's judgment lien. In U.S. v. Estate of [...]

By | May 25th, 2007|Assessments, Cases & Laws|0 Comments

Governing Documents and the Honor System

- By James R. McCormick, Jr., Esq. (originally published in July 1998) So you live in a common interest development. You've got your association's bylaws, CC&Rs and rules and regulations to contend with. You're up to your ears in do's and dont's, written mostly in legalese. So what do you do about it? Let me [...]

By | May 25th, 2007|Enforcement, Violations|0 Comments

Tips for Special Membership Meetings

(originally published in July, 1998) At a board meeting, a "happy homeowner" who routinely violates the CC&Rs delivers a petition signed by six out of 100 homeowners, stating they want to call a special meeting of the members for the purpose of recalling the Board. Questions frequently asked are: (1) do we have to schedule [...]

By | May 25th, 2007|Meetings|0 Comments

Judicial Partition of Common Areas is Necessary Before Conveying Destroyed Condominium Project

- By Laurie S. Poole, Esq. (originally Published in July, 1998) A recent California Appellate Court determined that after destruction of a condominium project, a legal partition action is necessary before the project can be conveyed to a third party. Under California law, "partition" is the procedure to terminate common interests in the same parcel [...]

By | May 25th, 2007|Cases & Laws, CID News, Maintenance|0 Comments

California Law has Changed Regarding Standards for Common Area Maintenance

- By David M. Peters, Esq. & Simon J. Freedman, Esq. (originally published in July, 1998) In April of this year, a California Appellate Court decided that an "objective test of reasonableness" should be used to decide whether a homeowners association has properly maintained the common areas. Before this decision, the traditional standard was the [...]

By | May 25th, 2007|Cases & Laws, Maintenance|0 Comments

Judment Obtained for HOA Assessments is not Avoidable in Bankruptcy

- By Laurie S. Poole, Esq. (originally published in April, 1998) A Florida bankruptcy court has ruled that a judgment obtained for delinquent homeowner association assessments is not the type of lien that can be "set aside" in a bankruptcy proceeding. Section 522(f) of the United States Bankruptcy Code provides that under certain circumstances, certain [...]

By | May 25th, 2007|Assessments, Cases & Laws|0 Comments

Thinking of Selling? You Might Have to Disclosre your Noisy Neighbors as a “Neighborhood Noise Problem”!

- By James R. McCormick, Jr., Esq. (originally published in April, 1998) In real estate sales transactions, if the seller knows of facts that would have a material affect on the value or desirability of the property, the seller is under a duty to disclose those facts to the buyer. Failure to disclose these facts [...]

By | May 25th, 2007|Cases & Laws, Violations|0 Comments

Stop! Don’t Touch that Record Button! Should Members be Permitted to Tape Record Meetings?

- By Jeffrey R. Pratt, Esq. (originally published in April, 1998) The question often arises whether a member should be allowed to tape record a meeting of the board of directors of a homeowners association. For the reasons discussed below, it is generally recommended that the board not allow the meetings to be tape recorded. [...]

By | May 25th, 2007|Meetings|0 Comments

Beyond Single Family Residences: Special Consideration for Certain types of “Businesses”

- By Susan K. Stewart, Esq. (originally published in April, 1998) Virtually every set of association governing documents contain provisions that prohibit or restrict business use of residences. The reason for these restrictions is straightforward: to prevent a neighborhood from becoming a mini-industrial park. Common sense tells us that in most instances business use and [...]

By | May 25th, 2007|Cases & Laws, Enforcement|0 Comments

Picking up Where the City Left Off – Are you Liable for Injuries on Adjacent Property?

- By Laurie F. Masotto, Esq. (originally published in January, 1998) It is not uncommon for a property owner or a homeowners association, in connection with main-taining their property, to keep the adjacent public sidewalk clean, such as by sweeping, removing leaves and other debris, to enhance the appearance of the neighborhood. Fortunately, a recent [...]

By | May 25th, 2007|Cases & Laws, Liability|0 Comments

Who’s to say what’s Aesthetically Pleasing: Homeowner Associations?

- By James R. McCormick, Jr., Esq. (originally published in January, 1998) A recent California case seems to say yes. The court in Kucera v. Lizza (1997) 97 D.A.R. 14787 recognized the ability of local municipalities to enact ordinances that are based purely on aesthetic consi-derations. While not directly applying to homeowners associations, other cases [...]

Summary of New Laws Effective on Januay 1, 1998

- By David M. Peters, Esq. (originally published in January, 1998) During the 1997 Session, the California Legislature was not nearly as prolific as it has been in previous years in enacting legislation that affects homeowners associations. However, the following is a summary of some of the pertinent laws that were passed regarding homeowners associations [...]

By | May 25th, 2007|Cases & Laws, CID News|0 Comments