How to Respond to Records Requests


When your association receives a records request under Civil Code Section 5200 et seq, the first thing to analyze is the timeline for inspection of the records requested. Section 5210 of the Civil Code outlines the various timeframes for delivery or inspection of the records requested, and each category of records has its own corresponding time period. Because a failure to timely and adequately respond to records requests carries a statutory penalty of up to $500 per request, the Association should work quickly to analyze its time to respond.

After analyzing the timeline, the Association should determine if there are any exceptions to the records request that may apply. For example, the attorney-client privilege exception that applies to nearly any communication, contract, and invoice between an association and its attorney. Other types of association vendors, even those that do collections for the association, may not be afforded that type of protection from disclosure of documents under Civil Code Section 5200 et seq.

The Association should recall the general rule of thumb that homeowners are only entitled to inspect individual information if it pertains directly to that homeowner’s property or assessment account. Homeowners have no right to inspect their neighbor’s assessment ledger or interior architectural applications. Some exceptions may be made for exterior architectural modifications, such as when a neighbor’s signature is required as part of the architectural application process.

Be aware that records other than minutes of regular meetings – which remain subject to inspection forever – association records requests only pertain to records from the current fiscal year and the previous two fiscal years. For an Association whose fiscal year begins July 1, it can exclude documents created prior to July 1, 2017.

Finally, the Association should consider what information may be redacted and advise the homeowner who made the request of the redaction costs. Associations may charge $10 per hour for redaction up to $200 total. Be careful not to exceed this total, lest the Association be accused of limiting access to documents and overcharging for this work.

Following these basic steps and understanding the Association’s obligations under Civil Code Section 5200 will save the Association quite a bit of headache in the long run. If your Association needs any assistance with responding to a records request, please do not hesitate to contact our office.

Garrett Wait

 

 

SOUTHERN CALIFORNIA SUPERIOR COURTS REOPENING


Southern California superior courts are beginning the process of reopening following COVID-19 pandemic closures. The reopening process differs from county to county. Courts are now accepting new filings and certain types of motions are being heard. New and pre-closure filings are being processed. However, given backlogs and reduced staffing, considerable delays are anticipated. Courts are encouraging parties to resolve lawsuits and discovery disputes informally to ease backlogs. In litigation matters, written discovery is still taking place. Depositions and mediations are being held remotely. However, it appears that civil jury trials are still a long way off.

The following paragraphs generally summarize the present status of Southern California courts serving Kriger Law Firm clients on civil matters based on a review of court-published information.

SAN DIEGO COUNTY

San Diego Superior Court has resumed services effective May 26, 2020, but only persons needing emergency services can enter the courthouse. Social distance and must wear a mask and be screened by temperature reading before entering any court facility Many of the court’s usual activities are being handled online, over the phone or through video conference. Emergency needs (temporary restraining orders, etc.) can still be handled in person.

Civil jury trials are presently not being scheduled. All scheduled jury trials have been suspended and are continued for a period of at least 60 days. Previously set hearings, including trials, have been vacated and must be rescheduled after “meeting and conferring” (remotely, of course) with the opposing party. All hearing dates in limited civil cases and small claims cases have been vacated and will be re-scheduled by the court. Parties will be notified of new hearing dates and times, including information on how to appear at the hearing. Ex parte hearings can be scheduled but are only held telephonically.

RIVERSIDE COUNTY

Face coverings and social distancing are required of all persons entering Riverside County Superior Court facilities. All non-essential functions are suspended; only specific limited emergency matters are presently being heard. Many court locations are closed or have limited hours through June 12, 2020. Court staff answering phones and monitoring e-mails are limited, so expect lengthy wait times and delays. Only certain documents relating to emergency and essential matters are being processed; all other documents submitted will not be reviewed or filed until the court resumes normal operations.

All unlimited civil jury and court trials set have been vacated; trial dates are replaced with trial setting conferences at the same time and department. Limited civil trials are suspended until July 20, 2020. Certain civil matters such as temporary civil restraining orders, requests to renew restraining orders, ex parte applications, and stipulations, are being accepted. All other civil matters and hearings, except for post-trial motions, are being continued. All small claims hearings are postponed for 90 days. Notice of new hearings will be mailed by the Court. The Court Clerk’s Offices for small claims matters are closed.

The Court plans to summon jurors for appearance dates beginning in mid-June for a limited number of criminal trials that may start at that time, using health and safety protocols developed with the Riverside County Public Health Officer. Counsel or self-represented parties will be notified when cases are set for a hearing and whether participants will be required to appear in-person or telephonically.

SAN BERNARDINO COUNTY

San Bernardino Superior Court started gradually reopening on May 29th with modified service hours. New hearing dates and notices are being sent to attorneys and parties. Face coverings and social distancing are required. Persons are not allowed to enter the courthouse unless their case is being heard or their filing is being accepted inside. Alternative filing options include outside service windows and drop box locations. Filing documents, making payments and other court business may be accomplished by mail or fax .

Civil restraining orders remain in effect until new hearing dates are rescheduled. Time-sensitive and essential ex parte civil matters are being heard telephonically.

LOS ANGELES COUNTY

An order closing Los Angeles Superior Court courtrooms and delaying trials and non-essential matters has been extended through June 10th.  All clerk’s offices are now slated to reopen on June 15th. At that time, the Court will offer telephonic and online options to conduct court business. To enforce social distancing, in-person services will require a prescheduled appointment.

When the Court reopens to the public on June 15, all persons will be required to wear face masks or facial coverings to enter any courthouse or courtroom. The only exceptions will be for a documented medical condition or excuse, or an ADA accommodation approved by the Court. Even then, persons entering may be restricted to a specific time of the day or be required to make an appointment.

Steven Banks, Esq.

 

Some Animals are More Assistive than Others: HUD Issues New Guidelines regarding Disability Accommodation Requests Involving Assistance Animals


It’s been almost a decade since the U.S. Department of Housing and Urban Development (“HUD”) last issued guidelines regarding assistance animals. Since then, use of assistance animals has increased considerably, as have efforts by some to exploit ambiguities, leading to news stories about emotional support peacocks and kangaroos. In the absence of clear guidance from HUD, HOAs have struggled with issues relating to accommodation requests involving assistive animals, such as the type and amount of documentation that can be required, particularly where a disability or a disability-related need for an animal isn’t clear. The issue has been a fertile ground for complaints and lawsuits. In fact, HUD says almost 60% of federal Fair Housing Act (“FHA”) complaints concern denial of reasonable accommodations and disability access. Of those, complaints regarding denial of assistance animal requests are among the most commonly received by HUD and are “significantly” increasing.

Fortunately, HUD has recently issued new guidelines for service animals and assistance animals under the FHA, which replace HUD’s prior 2013 guidelines. The new guidelines provide more clarity about acceptable assistance animals and about the application process through which requests for their use are reviewed. While the new guidelines do not modify present federal law or regulations, their use is “strongly” encouraged by HUD and will hopefully improve the application process for both applicants and HOAs. The new guidelines are broken into two sections: (1) “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act”; and (2) “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.”

The first section primarily sets forth best practices regarding determining if the animal in question qualifies as a “service animal” under federal law or is otherwise a support animal or other type of assistance animal that needs to be accommodated. The guidelines provide an outline of acceptable inquiries of applicants, depending on whether disabilities are readily observable. Details are also provided regarding when and in what manner accommodation requests can be made. Of note is HUD’s observation that in its experience, documentation (certificates, registrations, licensing documents, etc.) purchased from internet websites “is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.” The guidelines also differentiate between animals traditionally kept in households and “unique” animals. For approval of the latter, the requestor has the “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or the specific type of animal.” The guidelines helpfully point out that “reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.”

The second section is intended to help disabled individuals document their need for an assistance animal. This includes helping them explain to their health care professionals the type of information HOAs may need to evaluate their request, particularly when their disability or disability-related need for an accommodation is not readily observable. The section also notes that HOAs cannot require health care professionals to use a specific or notarized form, verify statements under penalty of perjury, or provide a diagnosis or other detailed information about the applicant.

Kriger Law Firm routinely assists its community association clients throughout Southern California on assistance animal issues. We encourage you to review the new HUD guidelines in detail. The new HUD guidelines are available online for download at:  https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

Steven Banks, Esq.

 

 

Smoking Ban Not a Reasonable Accommodation


In 2004, Phyllis Davis purchased a unit on the second floor of a four-unit building. She was a cancer survivor with a history of asthma and claimed that cigarette smoke from the unit below significantly impacted her ability to breathe comfortably. She requested help from the Association’s board of directors. The board made efforts to mitigate the transmission of secondhand smoke but had no power to ban smoking as it was not prohibited in the Association’s governing documents.

The efforts by the board to seal openings in cracks, doors and vents to prevent the transmission of smoke along with the installation of an air filter were insufficient to satisfy Ms. Davis. She requested a “reasonable accommodation” in the Association rules to implement a smoking ban in her building. The Association refused to institute a smoking ban based upon its understanding that it had no power to do so as smoking was permitted under the existing rules.

Davis sued the Association alleging that its refusal to ban smoking in her building discriminated against her because of her health issues and was in violation of the federal Fair Housing Act. The court sided with the Association and ruled that implementing a smoking ban would constitute a fundamental change in Association policy versus a moderate adjustment to a policy. This is the test applied when a request for a “reasonable accommodation” is made.  Implementation of the smoking ban was considered a fundamental change in policy because of the significant interference with the rights of other smoking residents in the building who relied on the existing rules that allowed smoking in their units at the time of purchase.

It is our opinion that the result in this case (Davis v. Echo Valley Condominium Association (2019) 945 F.3d 483) may have been different had the Association rules contained some limitation or power of the board to control the transmission of secondhand smoke. In general, we do not recommend clients impose a complete ban on smoking but instead address the issue of transmission of secondhand smoke by adopting CC&R provisions that empower the board to deal with these issues on a case-by-case basis, including the ability to require the residents of the offending unit to modify smoking behavior or cease smoking in the unit altogether if other alternatives have failed to resolve the problem.

Joel Kriger, Esq.