Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #102 • March 2013
Yes, It's Here!
Getting Ready for NEW Davis-Stirling.
by Andrea L. O'Toole, Esq.
On August 17, 2012, Assembly Bill 805 was signed into law. The effect of the law is to repeal and replace the existing Davis-Stirling Common Interest Development Act with a new and improved version of the Act. The law, which was sponsored by the California Law Revision Commission (CLRC), is intended to clarify, simplify, reorganize and recodify the existing law. It was never intended to be a platform to create new legal rights or obligations; and, while the drafters mostly stayed true to those intentions, some substantive changes did find their way into NEW Davis-Stirling. Recognizing that directors, homeowners, association managers and other industry professionals will need time to get acquainted with the Act's reorganization and changes, NEW Davis-Stirling will not take effect until January 1, 2014.
A companion bill, AB 806, was also signed into law last August. Its purpose is to fix cross-references to the Act that exist in other California laws such as the Business and Professions, Government and Vehicle Codes. Like AB 805, its provisions are operative beginning January 1, 2014. This article describes how the Act was reorganized and provides a summary of some of the substantive changes.
A New Map to the Same Place
In part, the CLRC wanted to better organize the Act and make it more user-friendly. In doing so, the entire Act was renumbered. Currently, the Act can be found in Civil Code sections 1350 through 1378. While NEW Davis-Stirling will still be found in the Civil Code, one will have to look to sections 4000 through 6999 to find those familiar provisions. (Unless otherwise provided, section references throughout this article will be to either the existing Act or to NEW Davis-Stirling. Which one is discernible based on the section numbers discussed above.)
CASE LAW SUMMARY — CC&R Amendments
Shifting Maintenance Responsibilities
Court of Appeal upholds judgment in favor of association on owner's “retroactive” maintenance responsibility claim.
by Emily K. Clark, Esq.
In the unpublished case of Mariani v. Harbor Pointe Owner's Ass'n, 2013 WL 266515, the California Court of Appeal affirmed a trial court's decision and award of attorney's fees in favor of an Alameda County association. In the case – which, because it is unpublished cannot be cited as authority but provides a good opportunity to see how judges rule on issues affecting homeowner associations - an owner claimed that without his personal consent an association could not enforce a CC&R maintenance amendment – passed by a supermajority of owners – against him, because, he claimed, he lost the benefit of the original maintenance scheme. The amendment shifted maintenance responsibility for siding from the association to each individual owner. On appeal the owner conceded that he was bound by the CC&R amendment but contended that the amendment did not terminate the association's duty to perform maintenance that was in progress or that had “accrued” before its enactment. The Court held that the trial court had appropriately rejected the owner's “retroactivity” claim because the owner had not offered any admissible evidence that the association failed to perform any maintenance that had accrued or was otherwise in progress at the time the amendment was enacted. The association was awarded its attorney's fees and costs at both the trial court and appellate levels.
The Court's holding turned on the owner's failure to produce adequate evidence to support his claim. The Court did not address the substantive and more significant issue of whether maintenance obligations, if in fact promised or ongoing at the time of an amendment, can be retroactively enforced against an association after the amendment is approved. Or, to put it another way, whether the association can impose new maintenance obligations on an owner that did not exist at the time he or she purchased their home. Because this is an unpublished case future courts, nor those of us advising association clients cannot rely upon it as legal precedent. It does illustrate however, that amendments shifting maintenance can be both controversial and useful and, with the advice of counsel, are worth considering and if implemented, must be done so carefully.
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