Emails Between Board Members Discussing Potential or Existing Litigation

Board members must be very careful with email communications between themselves and management regarding potential or existing litigation. These emails are all discoverable. This means that the opposition can obtain copies of them, and use the emails to either advance or defend their position in the litigation. Comments contained in these emails can be very damaging to the association’s interests.  There are two ways to protect the association from damaging emails. First, do not communicate via email regarding the facts or merits of any potential or existing litigation. These matters may be discussed in executive session, but the substance of the discussions should not be recorded in the minutes. Second, when it is necessary to discuss litigation matters via email make sure that counsel for the Association is included. When counsel is included the emails are protected by the “attorney-client privilege”, and therefore not available to the opposition.

Joel Kriger, Esq.


Reinstituting Neglected Restrictions

It is important for associations to consistently enforce the key provisions in their Governing Documents. This does not always happen and some restrictions may be ignored for years without any negative effects on the community. Suddenly, new leadership is elected, and it is felt that these restrictions now need to be enforced. In extreme cases, where the restrictions have been ignored for years and violations are prevalent throughout the community, it may be impossible to revive these restrictions. In other cases, it is possible to revive the restrictions. The best process to follow is providing notice to the community that restrictions will now be enforced. A grace period should be provided where no fines are imposed for violations but only warnings. Once the grace period ends then consistent and uniform enforcement must follow. Owners who have detrimentally relied on the failure of previous leadership to enforce the restriction should be handled on a case-by-case basis. For example, if the Association had a weight limit on pets and the owner purchased a large dog, the individual should not be required to remove the pet from the community.

Joel M. Kriger, Esq.




New Law on Clotheslines

Civil Code section 4750.10 will become effective in 2016 and makes unenforceable any provision of the governing documents that effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or drying rack in the owner’s backyard.  Restrictions of this nature are common in CCR’s. The following is typical language contained in such a restriction:

 No laundry shall be dried and no exterior clotheslines, cloths poles, or the like, shall be erected or maintained by any owner except within the interior of such owner’s respective condominium unit or appurtenant courtyard, provided further, that in no event shall any clothesline be erected or maintain where such clothesline is visible from any other unit, or from any other portion of the project.

 Commencing in 2016 provisions of this nature will be void and unenforceable. The new law still allows provisions that impose reasonable restrictions on an owner’s backyard for the use of a clothesline or drying rack. Reasonable restrictions are those that do not significantly increase the cost of using a clothesline or drying rack. The section applies only to backyards that are designed for the exclusive use of the owner. Clotheslines and drying racks may still be prohibited in other portions of the project.

Joel M. Kriger, Esq.



Insurance Claims Should Be Tendered Promptly

In California, homeowner associations generally have a duty to purchase and maintain insurance policies to protect against a variety of risks. Most if not all insurance policies require their insureds to give prompt notice of a potential or actual claim. The language of the insurance policy typically places a contractual obligation on the homeowner association to “immediately” or “promptly” notify the insurance carrier. The concern is that if a potential or actual claim is not promptly tendered that the homeowner association will face a risk of loss of coverage under the insurance policy. As a general rule, it is the best practice to tender potential and actual claims as soon as possible.

However, it is also important to note that a failure to promptly notify an insurance carrier of a potential or actual claim is not necessarily fatal to obtaining coverage. Moreover, the meaning typically given to “immediate” or “prompt” notification is that notice must be given within a reasonable amount of time under the circumstances. In addition, if the insurance policy is an “occurrence” or a “claims-made” policy, then California courts have generally required the insurance carrier to demonstrate that they have suffered actual prejudice in order to avoid their contractual duties under the insurance policy.

If your homeowner association is facing a potential or actual claim triggering insurance, then we recommend consulting with the homeowner association’s legal counsel and insurance broker (or agent) promptly to assist in tendering the claim.

Bradley Schuber, Esq.