BRIAN D. MORENO LAW CORPORATION APC offers hourly and retainer-structured fee agreements.
In addition, Moreno Law offers multiple flat fee programs for various transactional matters. We are sensitive to the fact that associations have limited funding and therefore find flat fees arrangements that cap the total amount of legal fees for a project attractive.
Fine and Enforcement Policy
Community associations often have outdated and/or ineffective fine policies that may have limited impact on owners that violate the governing documents. Associations may consider updating their fine policies to, among other things, increase fine amounts, include authority to impose reimbursement assessments (unless prohibited by the CC&Rs/Bylaws), and/or enhance protections and limit liability of the association, its directors and management.
A collection policy is mandatory based on the Davis-Stirling Act. In addition, the Davis-Stirling Act has enacted numerous changes affecting an association’s ability to collect assessments. The association’s collection policy should be brought up to date to comply with all applicable laws and maximize the association’s available remedies for pursuing assessment collection.
CC&Rs/Bylaws Restatement and Amendment
Community associations – especially ones with outdated governing documents – can benefit from a complete restatement project that is billed on a flat fee basis. We offer several price-points depending on the anticipated level of involvement. Benefits of restating governing documents can include:
1. Bringing the documents up to date with current and applicable law.
2. Eliminating unnecessary legalese that can be confusing and difficult to interpret.
3. Eliminating developer-drafted provisions that were intended originally to only benefit the developer.
4. Incorporating specific provisions that protect associations, directors, and managers from potential liability.
5. Clarifying maintenance, repair, and replacement responsibilities.
6. Incorporating provisions that expand the remedies available to association for purposes of enforcing governing documents.
7. Strengthening associations’ rights and remedies in the event an owner decides to pursue litigation.
Harassment and neighbor claims can be challenging for board members attempting to determine whether and how to respond to the particular complaint and allegations. Associations confronted with such disputes are stuck in the middle and will benefit from having an Anti-Harassment Policy that – among other things – defines what “harassment” is, provides a protocol and procedure for responding to complaints, imposes penalties and remedies for noncompliance, and set out an investigation procedure that will guard against potential claims.
Code of Conduct
A Code of Conduct can be prepared for the benefit of directors that seek guidance on particular challenging issues. A Code of Conduct explains the various fiduciary duties owed by directors, imposes professional guidelines regarding how directors should treat each other and residents, requires confidentiality with regard to information that directors learn during executive session meetings and otherwise, and includes enforcement tools for the association in the event a director violates his or her duties.
Associations struggle with outstanding violations that are not corrected prior to the property being transferred to a third party. Associations can benefit from an Escrow Policy that provides procedures and remedies for associations where an owner attempts to transfer his or her property to a third party with pending violations that need to be corrected.
Association Meeting Policy
Associations that are struggling with excessively long meetings, meetings that are being disrupted, and/or owners that are being unprofessional or obstructing board members’ ability to conduct business during association meetings should consider adopting an Association Meeting Policy that imposes restrictions and standards for meetings. Certain provisions can be included that keep meetings moving forward without interruption and impose reasonable restrictions on meeting participants, including restrictions for open forum.
Solar Energy Systems Policy
Associations should be proactive by enacting a Solar Energy Systems Policy so that if a request to install a SES, the association has established a framework for responding to the request and the various conditions needed to protect the association.
Synthetic Turf Policy
In California, synthetic turf requests have become more popular. In this regard, associations should have a synthetic turf policy so that reasonable restrictions can be established, including aesthetic standards, quality of the turf, maintenance standards, etc.
Whether the association is installing cameras in common areas, or the owners seek to install cameras, the association should have a camera policy that establishes standards for the type, location, and installation of the particular camera. The policy should include restrictions that preserve privacy rights of neighbors, preserve the aesthetic integrity of the building, and provide indemnification rights in favor of the association in the event the installed camera results in a lawsuit against the association (or any of its agents, board members, managers, etc.)
Oftentimes, older CC&Rs fail to articulate the maintenance and repair responsibilities for components that may cause damage. Rather than obtaining separate legal opinions for each component that may fail, many associations benefit from a responsibility matrix that describes the relative maintenance and repair responsibilities for all of the various components in the development. Responsibility can be easily identified for each component.
Associations may find it difficult to enforce their governing documents against tenants that commit violations. Indeed, the governing documents generally may only be enforced against the record title owner. Associations may find it helpful to adopt leasing restrictions that require an owner-landlord and the tenant to sign a lease addendum that, among other things, holds the tenant personally liable for fines imposed, allows the association to pursue enforcement directly against the tenant, and allows the association to charge the owner-landlord for any fees, costs, and expenses incurred by the association in having to pursue enforcement against the tenant.
Water intrusion and Mold Policy
Many older associations that experience water intrusion claims should enact a policy that establishes a protocol for the reporting and repair of the component that fails and causes water intrusion. The policy would also address responsibility for the damage caused by the water intrusion as well as insurance responsibilities, including owner insurance and the deductible. The association can limit liability and reduce its loss-claim history by ensuring prompt reporting of water losses, additional insurance for the loss, and shifting responsibility for preventative maintenance and repair of components within the owner’s control.