Following Statutory Guidelines in Collection Matters

The Davis-Stirling Act gives homeowners associations some powerful tools to deal with delinquent homeowners, including the ability to foreclose on a delinquent owner’s home if necessary. However, associations and managers should be extremely cognizant of the statutory guidelines throughout the collections process in order to avoid successful challenges by delinquent owners. The first step is properly notifying the owner of the Association’s intent to record a lien and recording that lien in accordance with the statutory requirements.

In particular, Civil Code Section 5660 sets forth very strict language which must be included in any pre-lien letter sent to the delinquent owner at least 30 days prior to the recording of a lien. Furthermore, there are stringent statutory guidelines regarding the memorialization of the board’s decision to record the lien in CC 5673 and important requirements regarding the form of the lien itself in CC 5675. These must be followed to the letter to avoid any possible challenge by a delinquent homeowner under CC 5690 which, if sustained, could lead to a forced lien release even if the delinquency remains unpaid.

We recommend that management and the board of directors consult legal counsel prior to initiating collections attempts against any unit owner. Legal counsel can offer advice regarding required language, dates, and forms of notice required to properly record an assessment lien, and can often handle the entire process upon request.

Garrett Wait, Esq.

Update on Drones

On January 1, 2016, Civil Code Section 1708.8 was amended to provide that a person commits a physical invasion of privacy by entering into the air space above the land of another to photograph or record private events.

Also, Senate Bill 142 created a new Civil Code Section 1708.10 which states that use of a drone less than 350 feet above ground level without express authority is a trespass.  This makes it possible for drone operators to be subject to civil lawsuit if they fly at less than 350 feet above private property.

Jamie Handrick, Esq.





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.