Where CC&R provisions governing the maintenance/repair responsibilities for common areas are unclear, Civil Code Section 4775(a) sets forth a default structure. However, there is an ambiguity within the language of Section 4775 with regard to exclusive use common area. While Section 4775 addresses the maintenance of exclusive use common area, it fails to state exactly who is responsible for "repairing" or "replacing" the exclusive use common area (the homeowner or the HOA). This ambiguity is often problematic for condominium developments that may have numerous exclusive use common areas, such as windows, reserved parking spaces, patios, balconies, etc. 

Industry practice has held that the homeowner is only responsible for the basic upkeep/maintenance of the exclusive use common area's usable surfaces, while the HOA would be responsible for any major or structural repairs or replacements. AB 968, effective January 1, 2017, will serve to codify industry practice by amending Section 4775 to state that HOAs are indeed responsible for the repair and replacement of exclusive use common areas absent provisions in their governing documents to the contrary. 

**For more information, click here to read our blog post on AB 968.

Existing law prohibits HOAs from prohibiting or restricting the use of solar energy systems (i.e., solar panels).  However, HOAs do have the authority to place "reasonable restrictions" on the use of a solar energy system. "Reasonable restrictions" are those which do not "significantly increase the costs of the system or significantly decrease its efficiency or specified performance."  The thresholds of what constituted a "significant" cost increase or performance decrease were previously set by statute at $2,000 or 20%, respectively.  

AB 2188, effective January 1, 2015, cuts these thresholds in half to now be $1,000 and 10%. AB 2188 will therefore serve to reduce HOAs' already limited authority to regulate the installation of solar energy systems in their communities. 

**For more information, click here to read our blog post on AB 2188.

AB 2104, effective January 1, 2015 will expand upon the limitations placed upon HOAs in their efforts to regulate "low water-using plants," as well as incorporate an Executive Order signed by Governor Brown in April of 2014 that prohibits HOAs from fining homeowners for reducing/eliminating the watering of lawns during declared drought periods.  

Section 4735 of the California Civil Code previously stated that any provision of a HOA's governing documents is void and unenforceable to the extent that it "prohibits, or includes conditions that have the effect of prohibiting, the use of low-water using plants as a group." AB 2104 will expand on this language by also voiding any governing document provision (including those contained in a HOA's architectural or landscaping guidelines) that "prohibits, or includes conditions that have the effect of prohibiting, the use of low-water using plants as a group or as a replacement for existing turf." (Emphasis added.) Additionally, the inability for HOAs to fine homeowners for failing to adequately water vegetation or lawns during state or local government declared drought periods will be codified under new subpart (c) to Section 4735.
 

**For more information, click here to read our blog post on AB 2104.

Related to AB 2104 is SB 992. SB 992, effective January 1, 2015, still allows HOAs to fine homeowners for failing to water during drought periods where the HOA uses "recycled water" for "landscape irrigation." The language used in allowing this exception is vague and questions have surfaced regarding the amount of recycled water the HOA must use in order to qualify for the exception. SB 992 also renders void and unenforceable any provision of a HOA's governing documents that requires a homeowner to pressure wash the exterior of his unit or exclusive use common area during state or local government declared drought periods. 

Existing law sets forth the responsibility of HOAs to provide copies of governing documents, financial disclosures and other documents to a homeowner (or a homeowner's authorized agent) within ten (10) days of a receipt of a request for those documents. This applies in the context of a sale of a property (a unit or lot) within a HOA. The documents to be produced are identified in Civil Code Section 4525, and are commonly known as "Transfer Disclosure Documents."  

Civil Code Section 4530 does provide a HOA with the right to "collect a reasonable fee" based upon its efforts in producing, preparing and delivering Transfer Disclosure Documents. AB 2430, effective January 1, 2015, has amended Section 4530 to specify the seller's obligation to compensate the association for the aforementioned fee.  Other notable changes in the law that will result from AB 2430 include:

• The HOA must provide an estimate of the fees that will be assessed in producing the Transfer Disclosure Documents, prior to producing them.
• The fees must be "separately stated" and "separately billed" from all other fees, fines or assessments that are billed as part of the transaction.
• If the seller is in possession of any Transfer Disclosure Documents, the seller is required to provide copies to the prospective purchaser at no cost.
• The form used for estimating the fees, as described in Civil Code Section 4528, is amended to include the following within the rightmost column of the form: "Not Available (N/A), Not Applicable (N/App), or Directly Provided by Seller and confirmed in writing by Seller as current document (DP)."

**For more information, click here to read our blog post on AB 2430.

AB 2561, effective January 1, 2015, allows homeowners within HOAs to plant personal use food gardens in their backyards regardless of any restrictions contained in a HOA's governing documents to the contrary.  However, AB 2561 does not authorize crops to be grown for commercial purposes or to be sold on the property, nor does it authorize the growing of non-food crops or marijuana. Additionally, AB 2561 allows for HOAs to adopt reasonable restrictions (i.e., rules) on the maintenance standards of gardens.   

**For more information, click here to read about AB 2561 online.

We are pleased to share that 2014 was another year of growth and expansion for Tinnelly Law Group. In addition to the approximately 50 new clients that we began working with, we welcomed a new Director of Business Development and new Attorney to our team. We also opened up a satellite office in downtown Los Angeles to better service our growing LA County client portfolio. 

Additionally, our collection affiliate, Alterra Assessment Recovery, has continued to grow and provide incredible results for its clients since its launch in 2013. Both TLG and Alterra reached new milestones in 2014, and both companies are poised to continue their success and growth into 2015. 

2015 promises to be another exciting year. TLG will be relocating its headquarters into a brand new, larger space located in South Orange County to keep pace with growth and to continue to improve upon the firm's service offering and standards. TLG also has some major announcements set for later in the year---keep a look out for more to come! 

We would like to thank our clients and industry partners for their continued support as we head into a very busy 2015!