California Assembly Bill AB 968 - Bill Analysis

AB 968 Assembly Bill - Bill Analysis

This bill is intended to clear up the existing ambiguity regarding responsibility for maintenance, repair, and replacement of limited common elements in CIDs. The bill passed the Assembly 73-1, made its way through the Senate committee system,  clearing the Commitee on Transportation and Housing by a 10-0 vote, and is now awaiting a third reading on the Senate floor. The bill is opposed by Donie Vanitzian  and also by Marjorie Murray and the Center for California Homeowner Association Law.

  The full text of the bill is here.

The normal situation is that the association is responsible for the common elements, and the owners are responsible for their separate interest.  But what about limited use common elements, such as condominium decks and patios, that are part of the common elements but that can only be used by the individual owner?  The existing section that governs this is  Section 4775 of the Civil Code.  It currently reads as follows (my emphasis), and it is unclear on that subject:

Section 4775.  

(a) Unless otherwise provided in the declaration of a
4common interest development, the association is responsible for
5repairing, replacing, or maintaining the common area, other than
6exclusive use common area, and the owner of each separate interest 7is responsible for maintaining that separate interest and any 8exclusive use common area appurtenant to the separate interest.

Note that the words "repairing" and "replacing" do not appear in the language about "exclusive use common area," i.e., limited use common elements. So, if the documents don't specify, whose job is it to repair and replace limited common elements?

AB 968 would repeal the existing section 4775 and replace it with this language (again, my emphasis):

Section 4775 is added to the end insertbegin insertCivil Codeend insertbegin insert, to read:end insert

begin insert

14

begin insert4775.end insert  

(a) (1) Except as provided in paragraph (3), unless
15otherwise provided in the declaration of a common interest
16development, the association is responsible for repairing, 17replacing, and maintaining the common area.

18(2) Unless otherwise provided in the declaration of a common
19interest development, the owner of each separate interest is 20responsible for repairing, replacing, and maintaining that separate 21interest.

22(3) Unless otherwise provided in the declaration of a common
23interest development, the owner of each separate interest is 24responsible for maintaining the exclusive use common area P3    1appurtenant to that separate interest and the association is 2responsible for repairing and replacing the exclusive use common 3area.

4(4) The governing documents may define which items or actions 5constitute maintenance and which constitute repair and 6replacement.

7(b) The costs of temporary relocation during the repair and
8maintenance of the areas within the responsibility of the
9association shall be borne by the owner of the separate interest
10affected.

11(c) This section shall become operative on January 1, 2016.

Let's make this less abstract. Imagine that I own a condo unit, which means I own an airspace and the whole building is common elements.  My unit has a deck that is mine and mine alone to use--it is a  limited common element.  Under the proposed new law, unless my association's declaration says otherwise, I am responsible for maintaining my deck, and the association is responsible for repairing and replacing the deck.

But wait, you say--what if the coating of my deck is worn out and it is leaking. Is that maintenance, which is my responsibility, or repair, which the associaiton would have to pay for, so that the cost is shared by all owners?  The bill doesn't define that distinction.  Instead, this bill in section (4) says the governing documents may (not must) define "which items or actions constitute maintenance and which constitute repair and replacement." For most associations, there is no such specificiation in the declaration, so they would need to amend their documents if they wanted to clarify that.  

Donie Vanitzian says that section (4) doesn't just allow the association to define what it maintenance versus repair and replacement, but also allows the association to amend the documents and reclassify various building components as limited use common elements, and then assign responsibility for them to individual owners.  From the column: "AB 968 allows boards to expand, redefine and concoct their own rendition of what 'exclusive use common area' is and then assess the owner to maintain, insure and assume liability for it. If the association has a reserve account, this new obligation does not exempt owners from continuing to fund it. Exclusive use components that associations may add are infinite. Some examples: indoor/outdoor pipes, sprinkler systems, wiring, parking stalls, doors, screens, windows, steps to entryways, outdoor light fixtures, walkways, hallways, fences, mailboxes, balconies, porches, roofs, air conditioners, heating systems, outdoor stairs, patches of dirt touching your property's stucco and more."  

 Here's how the legislative analyst summarizes the opposition. They say (my emphasis): 

ARGUMENTS IN OPPOSITION  :    Opponents believe that this bill's  

          lack of definitions for maintenance, repair, and replacement  

          does a huge disservice to associations and residents by forcing  

          associations to devise definitions when even this bill's sponsor  

          cannot.  In addition, opponents argue that this bill imposes  

          significant new financial obligations on homeowners.  First,  

          this bill newly assigns the repair and replacement of separate  

          interests to homeowners.  Second, having associations define  

          this bill's terms creates an opportunity to foist new  

          maintenance duties onto homeowners.  These issues are  

          exacerbated by the lack of clarity in some governing documents  

          over what is considered exclusive-use common area.  

It appears that the opponents see potential for abuse here that the legislature doesn't, given the virtually unanimous votes it has received so far.  The bill is subject to amendment before the third reading, and if anybody knows what amendments are being considered, please comment or email me.

Update 8/3/14: the Executive Council oh Homeowners supports the bill.

http://www.echo-ca.org/hoa-advocacy/ab-968-exclusive-use-common-area

Marjorie Murray tells me the Public Interest Law Project and Consumer Attorneys of California oppose the bill. I can't find any reference to the bill on their websites. I will link to their statements directly if and when I can. 

Someone call the HOA!

Crop circle in Germany attracts many visitors 


 


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There must be something in the CC&Rs that prohibits crop circles.

Mesa residents still fighting HOA, claim former board members misspent money - ABC15 Arizona

Mesa residents still fighting HOA, claim former board members misspent money - ABC15 Arizona: Mesa, AZ - We've been following the legal battle between Superstition Lakes Condominium Association and its former leadership.

We met with former resident Kathleen Daurio last year. As she dug through board records and said she found nearly $40,000 used for items and meals that she said didn't benefit homeowners. Homeowners accuse board of misspending funds.

"I mean, they bought laundry detergent and almonds and vodka and baby wipes and just about every time they bought air fresheners," said Daurio.

Another resident, Jan Stuart, sued that former board last year. It ended in a settlement agreement that allowed a vote resulting in three members being recalled, and a new board put in place.

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Your HOA assessment dollars at work -- or not. Trouble in Privatopia, Arizona sector. Film at 10 on ABC 15.

PQED: How should people respond to open-carry gun-rights activists?

PQED: How should people respond to open-carry gun-rights activists?:

"The question that concerns me now is how we bystanders should react when people come into a store with guns. There really is no legitimate way of determining intent. Even if the people with guns are carrying a sign claiming to be activists (which they do not do), they could be lying, just setting us all up for slaughter. And since there is no way to know what is on their minds, all we have are our instincts, but as we all should know, our instincts are often racist, classist, and frequently mistaken. So, what should we do?

My proposal is as follows: we should all leave. Immediately. Leave the food on the table in the restaurant. Leave the groceries in the cart, in the aisle. Stop talking or engaging in the exchange. Just leave, unceremoniously, and fast.

But here is the key part: don’t pay. Stopping to pay in the presence of a person with a gun means risking your and your loved ones’ lives; money shouldn’t trump this. It doesn’t matter if you ate the meal. It doesn’t matter if you’ve just received food from the deli counter that can’t be resold. It doesn’t matter if you just got a haircut. Leave. If the business loses money, so be it. They can make the activists pay."

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A philosopher proposes a brilliant way for us to respond to gun bullies.

Poor doors: the segregation of London's inner-city flat dwellers | Society | The Guardian

Poor doors: the segregation of London's inner-city flat dwellers | Society | The Guardian:

"A Guardian investigation has discovered a growing trend in the capital's upmarket apartment blocks – which are required to include affordable homes in order to win planning permission – for the poorer residents to be forced to use alternative access, a phenomenon being dubbed "poor doors". Even bicycle storage spaces, rubbish disposal facilities and postal deliveries are being separated."

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Thanks to Mystery Reader for another example of the rich separating themselves from the hoi polloi while enjoying the planning benefits that are supposed to go with mixed income developments. The same thing is happening in New York.

Homeowners Association: Veteran Can’t Build Furniture For Military Families In Need � CBS Sacramento

Homeowners Association: Veteran Can’t Build Furniture For Military Families In Need  CBS Sacramento:

"Even as a nonprofit, the Vietnam veteran was told he had to get a business permit, which he did in 2012. But this March, the Lake of the Pines Homeowners Association took it away.
“Now they’ve come back to me and said I’m producing odors and noxious fumes,” he said.
Such complaints typically come from neighbors, but those who live nearby have written letters supporting Dennis Kocher and his work.
We tried getting answers from the association’s general manager, but he would not comment."

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Homeowners Association: Veteran Can’t Build Furniture For Military Families In Need CBS Sacramento

Homeowners Association: Veteran Can’t Build Furniture For Military Families In Need CBS Sacramento: NEVADA COUNTY (CBS13) — A war veteran who builds furniture in his garage and gives it to military families in need could be forced to shut down the saws.

A homeowners association is telling Dennis Kocher he needs to close up shop after years of doing business, or he could be fined between $100 and $1,000.

“I may not paint, sand, cut wood or screw on the property at anytime,” he said.

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More bad press for Privatopia, California sector. Film at 10 on CBS13, Sacramento.

Despite recovery, fewer Americans identify as middle class | Pew Research Center

Despite recovery, fewer Americans identify as middle class | Pew Research Center:

'The nationally representative survey of 1,504 adults conducted Jan. 15-19 found that the share of Americans who identify with the middle class has never been lower, dropping to 44% in the latest survey from 53% in 2008 during the first months of the Great Recession.

At the same time, the share of the public who says they are in the lower or lower-middle classes rose by 15 percentage points, from 25% in 2008 to 40% today."

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Much of this change has taken place in the last two years.  One would expect a political backlash aimed at changing the rules of the bipartisan Reaganomics system that is so flagrantly rigged in favor of the rich at the expense of the middle class. But instead we see people obsessed with sports, celebrities, guns, and bizarre conspiracy theories. Young people are getting savaged by this economy: "In 2008, a quarter of all young adults identified as being in the lower or lower-middle class; today about twice as many do (49%), a 24-point increase."  And those who venture into college are being placed in lifelong debt servitude. But just wait--on election day in November they will stay home in droves.

A deep divide over new condo foreclosure bill - chicagotribune.com

A deep divide over new condo foreclosure bill - chicagotribune.com:

"The Illinois Condominium Property Act allows associations, in case of a judicial foreclosure sale, to recoup up to six months of unpaid common expenses from the next owner of the unit.

These expenses may include special assessments, late fees, fines and attorney fees. Lenders are exempt from making this payment.

The bill would amend the condo act by capping an association's claim to nine months of regular assessments. Attorney and court costs can be recovered as long as the total doesn't exceed the cap.

The Illinois Association of Realtors, which supports the legislation, said the current law is an affordability barrier for buyers.

The extra costs, which can reach several thousand dollars, typically cannot be financed. Buyers often are stunned to discover at closing that they owe sizable sums."

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So under the proposed law, which is sitting on Governor Quinn's desk awaiting signature or veto, the association could receive an amount equal to nine months of back assessments instead of six months, but the tradeoff is that the maximum amount would include the attorney fees and other charges that are always tacked onto the association's claim against the owner.  Realtors are in favor of the bill, saying, "We think the way the current law is written has fostered an atmosphere that has allowed outrageous attorney fees to run up and for associations to throw in anything having to do with the prior owner just because they knew they could stick the buyer with it."  But association attorneys are not happy with having their meal ticket trimmed.

The Twin Insurgency - The American Interest

The Twin Insurgency - The American Interest:

"Rights within such spaces accrue to dollars rather than to citizenship. The vision of the future here is of a global archipelago of what Evan McKenzie has called “privatopias”, essentially gated enclaves linked by air and internet to other such spaces, protected by high ramparts from the roiling dystopian ocean of the hoi polloi."

Housing dispute leaves 97-year-old man homeless

Housing dispute leaves 97-year-old man homeless:

"Each morning, a variety of men and women pass through the doors of Napa’s Hope Resource Center in search for a place in a local homeless shelter that night. On Wednesday morning, one visitor looked no more or less weathered or beaten-down than the others – only more diminutive and older, decades older.

James Farrell arrived at 8:30 a.m., his 5-foot-tall frame arm in arm with a woman who had helped him find an interim place to sleep since a dispute with management cost the ukulele-playing 97-year-old his place at a local retirement home."

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Redwood Retirement Center in Napa, CA, evicted this veteran of three wars. Apparently they didn't appreciate his singing and ukelele playing, and they said his room wasn't clean enough.

Maryland Homeowners' Association, Inc.

E-Communicator
For Homeowners in Condominiums, Cooperatives, and Homeowner Associations in Maryland

 

July 22, 2014
 

Celebrating the Life of Patricia Wigginton

Patricia Wigginton passed away on July 11, 2014. She was a Board member of the Maryland Homeowners Association (MHA) since 1992 and editor of MHA’s Communicator newsletter. She served as MHA’s president and executive director 1995-1999 and as such shepherded successful passage of the Homeowners’ Bill of Rights in the Maryland legislature and the successful transition of the organization upon the retirement of the founder and executive director, Dorothy Sager. A Celebration of her Life will be held:
 

Sunday, July 27^th at 3 pm at the
Cedar Lane Unitarian Universalist Church
9601 Cedar Lane
Bethesda, MD 20814
301-493-8300

For directions, go to http://www.cedarlane.org/directions.html

For 22 years in board positions including president, secretary, treasurer, & general officer, Pat offered information and support to individuals and boards of directors by phone and in person. She organized workshops and attended individual association meetings, CCOC hearings, including running and overseeing individual association elections. She testified for homeowner legislation on behalf of MHA. In 2006 she testified before the COC Task Force. In February 2008, as president of her condo association, she supported the Maryland Consumer Rights Coalition’s (MCRC’s) agenda testifying in favor of several energy bills---as well as organizing a write-in campaign among her neighbors to the Public Service Commission on “Fair Utility Rates.” She represented MHA at MCRC workshops and coalition meetings in Annapolis during the legislative sessions. During her many years of service she met with both politicians and government bureaucrats to advocate go od governance issues.

Patricia Wigginton served as president of her condominium association and had 25 years of board experience in her condo and its umbrella HOA and MTA organizations. In addition to advocating good government issues in condos and HOA’s, she was a long-time activist and advocate for children and the elderly---volunteering with Montgomery County schools, police and as a nursing home ombudsman.

As a volunteer in the Montgomery County schools, Pat was an early proponent in the fight against childhood obesity. Beginning in 2000, she advocated for more exercise and physical education in the schools and served on the county’s curriculum advisory committee, working with the county’s PTA, helping draft a county Wellness Policy and organizing “Walk to School Day” in the local elementary school. Her legislative efforts in this area included lobbying and testifying in favor of State Health and Fitness Acts supporting walking as the Maryland State Exercise. She also supported safety restrictions in teen driving legislation.

In 1996 Ms. Wigginton organized her son’s elementary school community to participate in the Stand For Children March on Washington, D.C. In 1997, as a way to continue awareness of children’s needs, she organized a “Stand for Children Book Drive” which has become an annual event for Ashburton Elementary and North Bethesda Middle schools. For the past decade, the “Reach Out and Read” program at Upper Cardoza Health Care Center in D.C. has been the recipient of the children’s book donations. More than 25,000 books were collected and donated to support literacy efforts since 1997.

In 1988 Pat organized a Neighborhood Watch Program in her condominium community, which was featured in a Voice of America segment on life in the United States. She continued to support the safety of her community and the police department’s neighborhood policing policies by serving on a Police-Citizen Advisory Committee for her District of Montgomery County since 2002.

Pat Wigginton was a truly spectacular and generous woman. She will be missed by her family, friends and community.
 
 

76-year-old man is ARRESTED at Tennessee town hall meeting | Mail Online

76-year-old man is ARRESTED at Tennessee town hall meeting | Mail Online:



"Locals in a small Tennessee town are outraged after a 76-year-old man was arrested during a town hall hearing over a proposed pipeline because he asked board members to speak louder.

Eddie Overholt's arrest came Friday after asking town board members to speak louder during a hearing to determine whether a gas company would be allowed to build a pipeline to dump waste into a local river.

‘Okay, I’m arrested,’ Overholt can be heard saying in a baritone drawl as he is escorted out of the Greenville Town Hall during a hearing with U.S. Nitrogen, according to WATE. The company wants a pipeline to the Nolichucky River."

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Not an HOA.

City OKs UWS development with ‘poor door’ for residents | New York Post

City OKs UWS development with ‘poor door’ for residents | New York Post:

"The city approved a developer’s controversial plans for a “poor door” on the Upper West Side, The Post has learned.
Extell came under fire last year when it introduced plans for a 33-story luxury condo with a separate entrance for affordable-housing tenants."

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My good man, please step round to the back and use the servants' entrance. There's a good lad.

Iraq vet cited for owning 14 therapeutic pet ducks - Yahoo News

Iraq vet cited for owning 14 therapeutic pet ducks - Yahoo News: WEST LAFAYETTE, Ohio (AP) — An Army veteran who hurt his back during the Iraq War is worried a citation will result in him losing his 14 pet ducks, which he says are therapeutic.

Darin Welker said officials in the village of West Lafayette told him to get rid of the ducks in May and cited him for a minor misdemeanor on June 23 for failing to comply. Walker is scheduled to appear in Coshocton Municipal Court for a hearing Wednesday and could face a $150 fine.

Welker, 36, says the ducks help him with depression and post-traumatic stress disorder and keep him more active.

West Lafayette, about 80 miles east of Columbus, banned residents from keeping fowl and other farm animals in 2010.

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It's only a matter of time before the quackdown on therapy ducks comes to Privatopia.

Did this booby trap set up in a Pevely yard go too far? | KMOV.com St. Louis

Did this booby trap set up in a Pevely yard go too far? | KMOV.com St. Louis

"(KMOV.com) – A homeowner in Pevely elected to set up booby traps on his lawn to prevent pranksters from driving onto it. The resident buried a board along the street with nails sticking out of the ground, the goal was to flatten the tires of cars driven by pranksters. Police told News 4 the trap was difficult to see “They were painted black and they were buried in the ground, and it made it very difficult to see,” said Pevely Police Chief Ron Weeks."

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And now the town of Pevely is going to pass an ordinance banning booby traps on lawns. I suppose that will make everybody except the property rights fanatics.  

Subdivision’s paving woes highlight gray area in enforcement | The Courier-Tribune

Subdivision’s paving woes highlight gray area in enforcement | The Courier-Tribune: The developer owns the road up to the point where the state takes it over. The state will not take the road over, even if it is up to spec, until a certain threshold of habitation is reached — a minimum of two houses per one-tenth mile, according to Jeff Loflin, county N.C. Department of Transportation (NCDOT) engineer. So, in the interim, the developer should be motivated to keep the road up, in theory.

The reality Stauffer is experiencing what happens when the theory breaks down. It breaks down, most often, when a developer goes bankrupt or leaves a subdivision uncompleted because he or she has moved on to a more lucrative project. Short of suing the developer, the homeowners typically have few options other than taking over road maintenance themselves.
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This is the point where the intergovernmental relationship as the perfessor termed it in his seminal 1994 book Privatopia reaches a dead end. NCDOT is using a similar formula that privately owned cable companies use in determining where they will build infrastructure -- a formula that creates winners (and lots of losers), leaving many without needed infrastructure.

White House opens door to tolls on interstate highways, removing long-standing prohibition - The Washington Post

White House opens door to tolls on interstate highways, removing long-standing prohibition - The Washington Post:



"With pressure mounting to avert a transportation funding crisis this summer, the Obama administration Tuesday opened the door for states to collect tolls on interstate highways to raise revenue for roadway repairs.

The proposal, contained in a four-year, $302 billion White House transportation bill, would reverse a long-standing federal prohibition on most interstate tolling.

Though some older segments of the network — notably the Pennsylvania and New Jersey turnpikes and Interstate 95 in Maryland and Interstate 495 in Virginia — are toll roads, most of the 46,876-mile system has been toll-free."

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The Republican strategy of refusing to let Obama fix any problem, under any circumstances, pays off again. Now they are turning the interstate highways into toll roads, which should make Rand Paul happy. Now if only they can figure out how to charge us for the air we breathe...



This decision will be a huge boon to the privatization industry, which will step forward and propose a big cash payment (that will turn out to be not so big) for the right to lease the interstate highways and run them as private toll roads.

To Water Or Not To Water? Residents Getting Mixed Messages Amid Drought --CBS Los Angeles

To Water Or Not To Water? Residents Getting Mixed Messages Amid Drought  CBS Los Angeles

The message from the state: overwater your lawn and you get fined. The message from the city of Glendora: underwater your  lawn and you get fined.  It's sort of a Goldilocks drought watering policy.

Income Inequality Has Spurred a Boom in Private Security | Mother Jones

Income Inequality Has Spurred a Boom in Private Security | Mother Jones:

"Perhaps this is our dystopian, Piketty-esque future: a small class of ultra-wealthy rentiers; a breakdown of public safety because the rich employ their own private security forces and don't feel like funding anything further; a retainer class of managerial drones; and then everyone else—sullen and resentful, but kept in line by the hard men in dark glasses toting automatic weapons and driving armored limos.

Actually, probably not. Eventually robots will provide better security services than fragile human beings, so the security forces will be out of jobs too."

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Actually, a lot of the private security features in CIDs are automated, such as card key gates and video cameras that are being sort-of semi-watched by some guy a hundred miles away with a hundred TV screens all around him. And a box of doughnuts.