Condominium Privacy Law

  1. You must have a legally protected expectation of privacy
  2. That privacy was violated

Prove that there was an unreasonable intrusion upon your solitude. To prove this, you must show that the intrusion upon your seclusion or solitude was intentional, the intrusion invaded your private affairs or concerns, and this intrusion was something that would be considered highly objectionable to a reasonable person.

A plaintiff must generally show that there was an act of prying or intruding in a manner that would be objectionable to a reasonable person in order to make a claim for intrusion upon the plaintiff’s affairs or seclusion. This invasion of privacy must be committed in a private place, such as one’s home. There is no claim for intrusion upon the plaintiff’s seclusion in a public location.

If the cameras are only taping what can be seen by the naked eye, it is not an invasion of privacy. If they recorded sound, there may be a violation of state or federal wiretapping laws. If the cameras are hidden in your home or have some type of special view lens, you could have a case for invasion of privacy.

A neighbor has a right to survey his property as long as he does not violate your rights to privacy. If the camera views the outside of your home and garden, it is generally not an invasion of privacy, but if the camera is surveilling the inside of the home, rights to privacy are violated.

The CC&Rs may regulate the installation of devices that are visible from the street or from a neighbor’s property. The CC&Rs often regulate the installation of satellite dishes and HAM radio antennas, for example. The same CC&Rs may require a homeowner to obtain HOA permission to install security cameras unless the cameras are unobtrusive. The CC&Rs should be carefully analyzed to determine if the neighbor complied with CC&Rs and architectural guidelines before installing the security cameras.

For whatever reason, if you want privacy from the cameras, then a strong infrared light attached to the side of the house with the beam shining in the direction of the camera may block anything behind the lamp from being captured on tape. A couple of IR illuminators shining out the window may also block the neighbor from recording what happens inside of your house.

The following is a California statute about this matter:

  • 1708.8 Civ.

(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.

(b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

(c) An assault committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).

(d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section.

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, instigates, induces, or otherwise causes another person, regardless of whether there is an employer-employee relationship, to violate this Section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294.

(f) Sale, transmission, publication, broadcast, or use of any image or recording of the type, or under the circumstances, described in this Section shall not itself constitute a violation of this section, nor shall this Section be construed to limit all other rights or remedies of plaintiff in law or equity, including, but not limited to, the publication of private facts.

(g) This Section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity, the suspected violation of any administrative rule or regulation, a suspected fraudulent insurance claim, or any other suspected fraudulent conduct or activity involving a violation of law or pattern of business practices adversely affecting the public health or safety.

(h) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a) or (b).

(i) The rights and remedies provided in this Section are cumulative and in addition to any other rights and remedies provided by law.

(j) It is not a defense to a violation of this Section that no image, recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose” means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted.

(l) For the purposes of this section, “personal and familial activity” includes, but is not limited to, intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of plaintiff’s private affairs or concerns. Personal and familial activity does not include illegal or otherwise criminal activity as delineated in subdivision (f). However, “personal and familial activity” shall include the activities of victims of crime in circumstances where either subdivision (a) or (b), or both, would apply.

(m) The provisions of this Section are severable. If any provision of this Section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

 

 

Mold and mildew

California Department of Public Health (CDPH)

Indoor Air Quality (IAQ) Info Sheet

Mold in My Home—What Do I Do?

Updated July 2012

This info sheet provides basic information on water damage in the home.  It describes molds, why they may grow indoors, health concerns related to mold exposure, the detection and prevention of indoor mold, and cleanup procedures for mold-contaminated materials with reference to additional resources and documents.

 ABOUT MOLD

 What are molds?

Molds are simple, microscopic organisms, present virtually everywhere, indoors and outdoors.  Molds, along with mushrooms and yeasts, are fungi and are needed to break down dead plant and animal material and recycle nutrients in the environment.  For molds to grow and reproduce, they need only a food source—any organic matter, such as leaves, wood, or paper—and moisture.  Because molds grow by digesting organic material, they gradually destroy whatever they grow on.  Sometimes, new molds even grow on old mold colonies.  Mold growth on surfaces can often be seen in the form of discoloration, frequently white, gray, brown, or black but also green and other colors.

How am I exposed to indoor molds?

Molds release countless, tiny spores, which travel through the air.  Everyone inhales some mold every day without apparent harm.  It is common to find mold spores in the air inside homes.  In fact, most of the airborne spores found indoors come from outdoor sources.  Mold spores primarily cause health problems when they are present in large numbers and exposure is high.  This may occur when there is active mold growth within a home, office, school, or other building in which people live or work for long periods.  People also can be exposed to mold by touching contaminated materials and by eating contaminated foods.

Can mold become a problem in my home?

Yes.  Molds will grow and multiply whenever conditions are right, that is when sufficient moisture is available and organic matter is present.  Be on the lookout for the following common sources of moisture inside and outside your home that may lead to mold problems:

  • Leaky roof
  • Sprinkler spray hitting the house
  • Plumbing leaks or overflow from sinks or sewers
  • Damp basement or crawl space
  • Humidifiers or steam from showers or cooking
  • Wet clothes hung indoors or a clothes dryer that exhausts indoors

Warped floors and stains on walls and ceilings can be indications of moisture problems.  Condensation on windows or walls also is an important sign of excessive dampness and can be caused by some of the sources listed above.  However, condensation also can be caused by an indoor combustion problem.  Therefore, inspect fuel-burning appliances annually, and contact your local utility or a professional heating contractor if you have questions.  General information on gas appliance safety is available at:

http://www.pge.com/myhome/edusafety/gaselectricsaf ety/gasappliancesafety/.

Should I be concerned about mold in my home?

Yes, if indoor mold contamination is extensive, it can lead to very high and persistent exposures to airborne spores.  Persons exposed to high spore levels can become sensitized and develop allergies to the mold, or they may develop other health problems (see below).

Mold growth also can damage your furnishings, such as carpets, chairs and sofas, and cabinets.  Clothes and shoes in damp closets can become soiled and start to fall apart.

Unchecked, mold growth can seriously damage the structural elements in your home, for example, floors, walls, and ceilings.

HEALTH EFFECTS

What symptoms can mold cause?

Molds produce health effects through inflammation, allergy, or infection.  Allergic reactions (often referred to as hay fever) are the most common responses following mold exposure.  Known health risks from mold exposure include the development of asthma, allergies, and respiratory infections; the triggering of asthma attacks; and increased wheeze, cough, difficulty breathing, and other symptoms. Also, evidence is accumulating, although not yet conclusive, that the more extensive, widespread, or severe the water damage, dampness, visible mold, or mold odor, the greater the health risks.

  • CDPH has released a statement on building dampness, mold, and health that summarizes the evidence-based health risks from indoor dampness and mold.

http://www.cal-iaq.org/phocadownload/statement_on_ building_dampness_mold_and%20health2011.pdf

How much mold can make me sick?

It depends.  For some people, a relatively small number of mold spores can trigger an asthma attack or lead to other health problems.  For other persons, symptoms may occur only when exposure levels are much higher.  Nonetheless, indoor mold growth is unsanitary and undesirable.  Basically, if you can see or smell mold, identify and eliminate excess moisture, and cleanup and remove the mold (see below).

  • Anyone with a health problem they believe to be due to mold should consult a medical professional.

Are some molds more hazardous than others?

Perhaps.  Allergic persons vary in their sensitivities to mold, both as to the amount and the types to which they react.  In addition to their allergic properties, certain types of molds (such as Stachybotrys chartarum) may produce compounds with toxic properties known as mycotoxins.

A mold may not always produce mycotoxins, depending on the material on which it is growing, the indoor temperature or humidity, the pH of the material, or other, as yet unknown, factors.  When produced, mycotoxins may be present in both living and dead spores as well as materials that were contaminated with mold.

A wet layer encloses S. chartarum spores while they are growing, preventing them from readily becoming airborne.  However, when the mold dries up, air currents or physical handling can release spores into the air.

At present there is no environmental test to determine whether S. chartarum found in buildings is producing toxins, nor can blood or urine tests establish that an individual has been exposed to S. chartarum spores or toxins.

Additional fact sheets on mold and health effects, including specifically Stachybotrys, are available from the CDPH Environmental Health Investigations Branch web page, http://www.ehib.org/cma/topic.jsp?topic_key=15: • Health Effects of Toxin-producing Molds in California

  • Fungi and Indoor Air Quality
  • Stachybotrys chartarum (atra) — A mold that may be found in water-damaged homes
  • Misinterpretation of Stachybotrys Serology

The Centers for Disease Control and Prevention (CDC) also has information at www.cdc.gov/mold/stachy.htm (Facts about Stachybotrys chartarum and Other Molds).

Are some persons at greater risk if exposed to mold?

Exposure to building-related mold is not healthy for anyone.  Therefore, it is best to identify and correct high moisture conditions quickly, before mold grows and health problems develop.

Some persons may have more severe symptoms or become ill more readily than others:

  • Individuals with existing respiratory conditions, such as allergies, chemical sensitivities, or asthma
  • Persons with weakened immune systems (such as HIV infected persons, cancer chemotherapy patients, and so forth)
  • Infants, young children, and older persons

MOLD DETECTION

How can I tell if I have mold in my house?

You may suspect that you have mold if you see discolored patches or cottony or speckled growth on walls or furniture or if you smell an earthy or musty odor.  You also may suspect mold contamination if mold-allergic individuals experience some of the symptoms listed above when in the house.  Evidence of past or ongoing water damage also should trigger a more thorough inspection for damp conditions.  You may find mold growth underneath water damaged surfaces (for example, wallpaper) or behind walls, floors, or ceilings.

Should I test my home for mold?

There is a consensus among scientists and medical experts that the traditional methods used to identify increased mold exposure do not reliably predict increased health risks. Therefore, CDPH recommends against measuring indoor microorganisms or using the presence of specific microorganisms to determine the level of health hazard or the need for urgent remediation.  

Reliable air sampling for mold can be expensive and requires expertise and equipment that is not available to the general public.  Private home and apartment owners generally will need to hire a contractor, because insurance companies and public agencies seldom provide this service.  Mold inspection and cleanup usually are considered a housekeeping task that is the responsibility of a home-owner or landlord, as are roof and plumbing repairs, house cleaning, and yard maintenance.

If you can see or smell mold, you likely have a problem and should take the steps outlined below to correct it.

GENERAL CLEAN-UP PROCEDURES

The following information is intended as an overview for homeowners and apartment dwellers.  For further details, consult the more thorough documents listed in the USEFUL PUBLICATIONS section below.  Judging how large a problem you have

Small mold problems—total area less than 10 square feet can be handled by the homeowner or apartment maintenance personnel using personal protective equipment (see below).  Large contamination problems—areas greater than 100 square feet may require an experienced, professional contractor.  For in-between cases, the type of containment and personal protection will be a matter of judgment.

What can I save?  What should I toss?

Discard items from which it will be difficult to remove mold completely.  Solid materials generally can be kept after they are thoroughly cleaned.

  • First, fix the moisture problem and remove excess water.
  • A wet/dry vacuum cleaner may help remove water and clean the area.
  • Discard porous materials, for example, mold-damaged ceiling tiles, drywall or wallboard, carpeting, drapes, upholstered furniture, and wood products. Spores are more easily released when moldy materials dry out, therefore, remove moldy items as soon as possible.
  • Contain the area in which you work to reduce the spread of dust to other areas, for example, close the door or use plastic sheets to separate the room and run a suction fan that exhausts the air outdoors.
  • Remove drywall to a level above the high-water mark. Visually inspect the interior, and remove any mold-contaminated material, such as insulation.
  • Carpet is often difficult to clean thoroughly, especially when the backing or padding is moldy, in which case it should be discarded.
  • If properly bagged or enclosed, mold-contaminated items can be discarded with household trash.
  • Clean, nonporous materials, for example, glass, plastic, metal, and ceramic tiles
  • Wear gloves, an N-95 respirator, and eye protection.
  • Use a non-ammonia soap or detergent, or a commercial cleaner, in hot water, and scrub the entire mold-affected area.
  • Use a stiff brush or cleaning pad on cement-block walls and other uneven surfaces.
  • Rinse cleaned items with water and dry thoroughly.

Disinfection of contaminated materials

Disinfecting agents can be toxic to humans as well as molds; therefore, they should be used only when necessary and should be handled with caution.  Disinfectants should be applied only to thoroughly cleaned materials to ensure that the mold has been killed.   

  • Wear gloves and eye protection when using disinfectants and ventilate the area well.
  • A 10% solution of household bleach can be used as a disinfectant. Use 1½ cups of household bleach per gallon of water.
  • When disinfecting a large structure, make sure that the entire surface is wetted, for example, the floors, joists, and posts.
  • Keep the disinfectant on the treated material for the prescribed time before rinsing or drying – 10 minutes typically is recommended for a bleach solution.
  • Properly collect and dispose of extra disinfectant and runoff.

Remember

  • Do not use disinfectants instead of, or before, cleaning nonporous materials with soap or detergent.
  • Bleach straight from the bottle is actually LESS effective than diluted bleach.
  • Never mix bleach with ammonia because this may produce toxic fumes.
  • Bleach fumes can irritate the eyes, nose, and throat, and spilled bleach can irritate skin and damage clothing and shoes.

FIRST AID FOR BLEACH USE

Eye Contact:  Hold eye open and rinse with water for 15– 20 minutes. Remove contact lenses, after first 5 minutes. Continue rinsing eye. Call a physician.

Skin Contact:  Wash skin with water for 15–20 minutes. If irritation develops, call a physician.

Ingestion:  Do not induce vomiting. Drink a glassful of water. If irritation develops, call a physician. Do not give anything by mouth to an unconscious person.

Inhalation:  Remove to fresh air. If breathing is affected, call a physician.

MSDS: http://www.thecloroxcompany.com/downloads/ msds/bleach/cloroxregularbleach0809_.pdf

Can cleaning up mold be hazardous to my health?

      Yes.  During the cleaning process, you may be exposed to mold, strong detergents, and disinfectants.  Spore counts may be 10 to 1000 times higher than background levels when mold-contaminated materials are disturbed.

Take steps to protect your and your family’s health during cleanup.

  • Use a respirator when handling or cleaning moldy materials to protect yourself from inhaling airborne spores.
  • You can purchase respirators from hardware stores. Select an N-95 respirator that is effective for particle (particulate) removal.
  • Wear protective clothing that is easily cleaned or discarded
  • Use rubber gloves.
  • Clean a test area first.

Beware that respirators that remove particles will not protect you from fumes, such as from bleach.  When using bleach or other disinfectants, minimize exposure by ventilating the area well.

If cleaning a test area bothered you, consider hiring a licensed contractor or other experienced professional to carry out the work.  The California Department of Consumer Affairs (CDCA) provides information on how to hire a contractor and describes the different classifications of licensed contractors:

What Kind of Contractor Do You Need?  http://www.cslb.ca.gov/Consumers/HireAContractor/

Licensing Classifications.

http://www.cslb.ca.gov/GeneralInformation/Library/LicensingClassifications/

  • Ask family members or bystanders to leave areas that are being cleaned.
  • Work for short time periods and rest where you can breathe fresh air.
  • Air out your home well during and after the work.

Never use a gasoline engine indoors (e.g., a water pump, pressure washer, or generator) as you could expose yourself and your family to toxic carbon monoxide.

Can air ducts become contaminated with mold?

Yes.  Duct systems may be constructed of bare sheet metal, sheet metal with fibrous glass insulation on the outside, sheet metal with fibrous glass on the inside, or entirely of fibrous glass.  Bare sheet metal systems and sheet metal with exterior insulation can be cleaned and disinfected.

Water-damaged fibrous glass liner often will need to be removed and discarded, and ductwork in difficult-to-reach locations may have to be abandoned.  If you have questions, contact an air duct cleaning professional or licensed contractor.

Can ozone air cleaners help remove indoor mold or reduce odors?

No.  Ozone is not effective in controlling indoor molds and other microbial contamination, even at concentrations far above levels safe for humans.  Ozone is a strong oxidizing agent and a known lung irritant and may damage materials in the home, for example, rubber items may become brittle.

For these reasons, CDPH strongly recommends that you NOT use an ozone air cleaner in any occupied space.  Refer to the Air Resources Board, Hazardous Ozone-Generating “Air Purifiers” http://www.arb.ca.gov/research/indoor/ozone.htm.  

A particle-removing air cleaner should only be used as a short-term means to reduce mold exposure.  The underlying moisture problem must be identified, and moldy materials must be removed or cleaned.

How can I prevent indoor mold problems in my home?

Inspect your home regularly for the signs and sources of indoor moisture and mold listed on page one. Take steps to eliminate water sources as quickly as possible.  Act immediately if a leak or flooding occurs.

  • Stop the source of leak or flooding.
  • Remove excess water with mops or wet vacuum.
  • Move wet items to a dry, well-ventilated area or place them outdoors to speed drying.
  • Move rugs and pull up the wet carpet as soon as possible.
  • Open closet and cabinet doors and move furniture away from walls to increase circulation.
  • Open wall cavities, remove baseboards, or pry open wall paneling, if necessary, to allow the area to dry thoroughly.
  • Run portable fans to increase air circulation.
  • Run dehumidifiers to remove moisture from the air.
  • Depending on the time of year, determine if a window air conditioner or portable heater would help dry the area.
  • Do NOT use the home’s central blower if it or any of the ducts were flooded because this could spread mold throughout the home.
  • Do NOT use fans if mold has already started to grow as this also could spread mold.

LOCAL ASSISTANCE

Your city or county health department may be able to answer questions or provide assistance on handling mold problems.  For links to local California health departments: http://www.cdph.ca.gov/programs/immunize/Pages/CaliforniaLocalHealthDepartments.aspx.

Other information on local government programs is available at http://www.ca.gov/About/Government.

USEFUL PUBLICATIONS

General Information

U.S. Environmental Protection Agency. The Key to Mold Control is Moisture Control. http://www.epa.gov/mold/index.html

U.S. Centers for Disease Control and Prevention.   Mold Information. Information on mold and health; an inventory of state indoor air quality programs; advice on assessment, cleanup efforts, and prevention of mold growth; and links to resources.

http://www.cdc.gov/mold/default.htm

CDPH Occupational Health Branch.  Mold in Indoor Workplaces. An overview with specific resources for workers.

http://www.cdph.ca.gov/programs/IAQ/Documents/mo ldInMyWorkPlace.pdf

California Research Bureau.  Indoor Mold: A General Guide to Health Effects, Prevention, and Remediation.  A report to the California legislature. http://www.library.ca.gov/crb/06/01/06-001.pdf

New York City Department of Health.  An overview and info sheets on Facts About Mold, Flood Fact Sheet, Healthy Homes: Facts About Mold, Healthy Homes:

Mold Tear-Off, and Mold Guidelines.  http://www.nyc.gov/html/doh/html/epi/mold.shtml

Health Canada. Fungal Contamination in Public

Buildings: Health Effects and Investigation Methods (2004). http://www.hc-sc.gc.ca/ewhsemt/alt_formats/hecs-sesc/pdf/pubs/air/fungalfongique/fungal-fongique_e.pdf

Health Canada. Residential Indoor Air Quality

Guidelines: Molds (2007). Information on the

Physical and Chemical Properties, Causes of Mold Growth, Health Effects, and the Canadian Guideline. http://www.hc-sc.gc.ca/ewh-semt/pubs/air/mouldmoisissure-eng.php

Mold, Dampness, and Humidity. Information on the

Effects of Mold on Health, Mold: Get Rid of It, and Mold in Indoor Air. http://www.hc-sc.gc.ca/ewhsemt/air/in/poll/mould-moisissure/index-eng.php

Clean-up Guidance 

U.S. Environmental Protection Agency.  Mold Remediation in Schools and Commercial Buildings.

Also applicable to residences.

http://www.epa.gov/mold/mold_remediation.html

U.S. Centers for Disease Control and Prevention. Prevention and Remediation Strategies for the Control and Removal of Fungal Growth. http://www.cdc.gov/mold/strats_fungal_growth.htm

American Red Cross/Federal Emergency Management Agency. Repairing Your Flooded Home. Guidance for recovery after flooding disasters addressing technical and logistical issues

http://www.redcross.org/www-files/Documents/pdf/ Preparedness/file_cont333_lang0_150.pdf

New York City Department of Health.  Guidelines on Assessment and Remediation of Fungi in Indoor Environments.

http://www.nyc.gov/html/doh/html/epi/moldrpt1.shtml  Consultants, Laboratories, and Clinics 

CDPH Listing of Consultants Offering IAQ Services in California. Self-reported database of contractors and advice on using the list. http://www.cal-iaq.org/gethelp/find-a-contractor and  http://www.caliaq.org/about-iaq/hiring-guidance

American Industrial Hygiene Association. Listing of laboratories accredited in environmental microbiology. http://apps.aiha.org/qms_aiha/public/pages/reports/pub licscopeview.aspx?ProgramCode=38

Association of Occupational and Environmental Clinics.

Directory of clinics in California and other states.

http://www.aoec.org/directory.htm

IAQ PROGRAM INFORMATION

CDPH Indoor Air Quality Section  Chief:  Dr. Kazukiyo Kumagai

850 Marina Bay Parkway (EHLB) Richmond, CA 94804-6403.

Contact:  staff.caliaq@gmail.com

Edmund G. (Jerry) Brown, Governor

State of California

Diana S. Dooley, Secretary

Health and Human Services Agency

Ron Chapman, M.D., M.P.H., Director         Department of Public Health

© California Department of Public Health, 2012

Limiting Mold Liability

In light of rising insurance premiums, mold exclusions, and litigation, boards must take a more active role to minimize their association’s potential liability.

Water-Damage Policy.  Buildings should be routinely inspected for water damage and visible mold.  Conditions causing mold (such as water leaks, condensation, and flooding) should be corrected immediately upon discovery.  Water-damaged areas should be dried within 24-48 hours.  This prevents mold growth.  Depending on the amount of damage, the association’s insurance company should be notified.  Typically, small amounts of damage are handled in-house without notifying the insurance carrier.  This keeps the number of claims down which keeps premiums down.

Normally, the association is responsible for inspecting and repairing the common areas (i.e., ceilings, perimeter walls, and most elements of the plumbing, electrical and HVAC systems).  Also, most CC&Rs authorize the association to seek reimbursement from the responsible party for any damage caused to the common areas.  So long as the property damage inside a unit is not caused by the conduct of the association, the association is not responsible for repairing non-common areas such as furniture, appliances, clothing, light fixtures, cabinetry, wall coverings, and floor coverings (carpet, hardwood floors, etc.).

Maintenance Chart.  The Board should create a chart that is clear and unambiguous about the respective maintenance responsibilities of owners and the association.  The chart should include responsibilities for windows, sliding glass doors, sinks, tubs, and showers, valves and drains, washers, dishwashers, balcony decks, etc.  If owners fail to properly maintain their unit and mold results, those owners, NOT the association, are liable for the damage.

Escrow Notice.  All buyers should be required to sign escrow notices prepared by the association, which puts them on notice of significant restrictions as well as the association’s maintenance and mold policies.  The mold policy, which should be part of the Rules and Regulations (and any CC&R amendments), makes owners liable for any mold damage that may result from their failure to maintain their unit as well as their failure to immediately notify the association of any water intrusion into their unit from the walls, ceilings, windows and plumbing.  The association cannot repair leaks if it does not know about them.  As a result, individual owners should be liable for any damage which results from their failure to notify the association.

Annual Notices.  The Board should formally adopt maintenance and mold polices in the minutes of a board meeting and incorporate them into the association’s Rules and Regulations.  The polices should then become a regular part of the annual package of disclosures that goes to the membership along with the budget.

CC&R Amendments.  Unfortunately, older CC&Rs are woefully deficient in clearly defining the maintenance duties of owners.  The association’s governing documents should be amended to specify those duties.  Also, language should be added requiring owners to carry insurance to cover damage to all improvements inside a unit such as carpets, hardwood floors, cabinets, and plumbing fixtures as well as personal property such as furnishings, appliances, and clothing.  Finally, provisions should be added specifically relieving the association of liability for damage not caused by the association’s negligence.

 

Fiduciary Duty

 

What Does it Mean to be a Fiduciary?

In simplest terms, to be a fiduciary to another person or party is to be in a position of trust. For example, a patient trusts her doctor to make the correct diagnosis.  A parishioner trusts his priest to keep his confessions confidential.  Moreover, if you are our client we hope you will trust us, as your lawyers, to give you the correct advice!

How does being a fiduciary play into the setting of a community association? Again, a fiduciary relationship exists where people place a special trust in someone.  In the association context, this means that if you are elected to the board of directors, the homeowners have placed their trust in you to preserve and protect the association’s assets, maintain the association’s property, enforce the association’s covenants, and, in general, to promote the interests of the common interest community.

If you are a member of the board of directors, then you owe a fiduciary duty to the association.  On the whole, your fiduciary obligation encompasses the following four duties, each of which is discussed below:

  1. Duty of Care
  2. Duty of Loyalty
  3. Duty of Obedience
  4. Duty of Confidentiality

Duty of Care

The duty of care requires a board member to make decisions: (i) in good faith, (ii) in the best interests of the association and (iii) prudently. The foregoing standard is what courts will review when determining if a board member(s) acted appropriately when a decision is challenged.  Directors are recognized as having the same duties as those of a business operation, so they must give the business of the association the same degree of care and diligence that prudent persons would exercise in their own affairs in similar circumstances.  So, what does this mean?

First, to act in good faith means, quite simply, act with honesty, fairness and good intentions.  When taking action, do not act with deception; do not act maliciously; do not act with ill will.  Sounds easy enough, but sometimes this can be one of the most difficult rules to follow.  As a board member have you ever been faced with a person who repeatedly interrupts you during meetings, constantly challenges your decisions and seems to look for ways to personally attack you?  Then, suddenly, that same person asks you to approve his or her fence request. Moreover, you find yourself looking for a way to deny it?  That, my friends, is acting in bad faith. Always remember that as a board member you must look at every decision objectively, and act with honesty and fairness.

Second, to act in the best interest of the Association means to set aside your self-interest.  Even if you may be a homeowner, while on the board you must remove your homeowner hat and put on your board member hat. If moving forward with a particular action would be in the best interest of the association, you must cast your vote in favor of that action, even though it may not align with your own personal interests.

That being said, it is not uncommon for a board decision to also support your own individual interest as a homeowner. That does not mean the decision is incorrect or inappropriate; it just means your own self-interest is in line with that of the association.  However, as a director, your decisions will be scrutinized, and if there is any appearance of preferential board treatment, the decision may be challenged. Do what’s necessary to avoid the perception that your action is solely in your best interest. Make sure you document how you made your decision objectively and without preference.

Moreover, remember, your decision must be in the best interest of the association; not the best interest of another board member, not the best interest of the kindest person on the block; not the best interest of the most energetic and dynamic faction of the community.  Any of the foregoing categories of people have the potential to sway, intentionally or unintentionally, a director’s decision because of who they are as individuals, and because of a director’s natural inclination to help the nicest group or the one in the most need.  Do not review a proposal based on which homeowners will benefit from the decision. Review a proposal based on whether it benefits the association and is in the association’s best interest.

Third and lastly, make sure your decision is prudent.  This means to ask many questions so you can make an informed decision.  Read, be familiar with, and follow your governing documents and applicable law. Make sure you attend board meetings.  Review your board packet thoroughly before the meeting, so you can be ready to ask questions at the meeting. Study and understand your financial statements, so you know where the money is going. Hire qualified professionals and vendors.  In short, when making any decision, board members need to be sure they exercise sound judgment.

Making an informed and sound decision is particularly critical if the decision has a significant impact on the association and its members.  If, for example, your decision has a substantial financial impact on the homeowners, such as levying a special assessment or obtaining a loan, then make sure you do your due diligence.  Review your governing documents and determine whether you have authority to levy the special assessment. Ask your managing agent for assistance in reviewing the operating and reserve accounts and in understanding the present financial state of the association. Ask your attorney for a legal opinion on whether owner approval is necessary for obtaining a loan and pledging the income of the association as security.

Moreover, paper trail, paper trail, paper trail.  Make sure the association’s files contain documentation establishing that the board’s decision was made in good faith, prudently and in the best interest of the association.  You can document your decision-making process through minutes, committee reports, opinion letters, memos and other such records.

Duty of Loyalty

The duty of loyalty requires a director to be loyal to the corporate entity of the association.  Again, you need to set aside your self-interest to act in the best interest of the association.  The duty of loyalty primarily relates to conflicts of interest.

A conflict of interest exists whenever any contract, transaction or other action taken by or on behalf of the association would financially benefit: (1) a director or (2) a party related to a director.  A “party related to a director” means:

(i)  a parent, grandparent, spouse, child, or sibling of the director;
(ii)  the spouse or descendant of the director’s sibling;
(iii)  an estate or trust in which the director or party related to the director has a beneficial interest; or
(iv)  an entity in which a director is a director or officer or has a financial interest.

A common example is if a director owns a landscaping company and wants to enter into a contract with the association to provide landscaping services.  This potential contract would provide a financial benefit to the director.  Thus, a direct conflict of interest exists.  Alternatively, if the landscaping company was owned by the director’s sister, a similar but indirect conflict of interest arises.  The existence of this conflict does not make the contract illegal or inappropriate in itself.  It is the way the director proceeds concerning the conflict that determines the correctness of the transaction.

Colorado law requires the director to disclose the facts of the conflict to the remaining directors before the board takes action on the proposed transaction.  The transaction is enforceable if a majority of the disinterested directors, even if less than a quorum, in good faith, approves the transaction.  Moreover, although not legally required, the director may consider it prudent to be absent from that part of the meeting during which the matter will be discussed, except when her or his information may be needed.

Note that even though the law does not require the director with the conflict to recuse him or herself from the discussion or vote, the board may adopt a conflict of interest policy which requires such recusal.  Colorado law requires the board to adopt a policy which:

(i)     defines or describes the circumstances under which a conflict of interest exists;
(ii)    sets forth procedures to follow when a conflict of interest exists, including how, and to whom, the conflict of interest must be disclosed and whether a director must recuse himself or herself from discussing or voting on the issue; and
(iii)    provides for a period of review of the conflict of interest policies, procedures, and rules and regulations.

So, if the policy requires the director to refrain from participating in the discussion and from voting, the director must follow the policy.  The minutes should then reflect his or her absence from discussion and abstention from any vote relating to the subject of the conflict.

Duty of Obedience

The duty of obedience is an easy one: obey the governing documents and obey the laws.  Directors owe a duty to the association to perform their duties in accordance with the authority granted to them by statute and in their governing documents (i.e., the declaration, bylaws, articles of incorporation, and any rules, regulations, and policies adopted by the board).  If directors exceed this authority, and damage results, the directors may be personally liable for their unauthorized actions.

However, your obedience is only as good as the rules you follow.  If your governing documents are outdated, then you could be following illegal provisions.  Make sure to review your governing documents with your attorney, and revise or rewrite them to bring them into compliance with current applicable law.

Duty of Confidentiality

Board members will have access to private and confidential information that must remain confidential.  A director should not individually disclose information about the association’s activities unless they are already known by the members or are part of the association’s records.  In the normal course of business, a director should treat all matters involving the association as confidential until there has been general disclosure, such as at a board meeting (outside of executive session) or an owners meeting, or unless the information is part of the records available to members for inspection (i.e., minutes, resolutions, etc.) or common knowledge. This presumption of confidential treatment should apply to all current information about legitimate board or association activities.

To be effective, a community association needs a strong board of directors that comprehends its role entirely and pursues it effectively. Moreover, to be an effective board member, you must fully understand your fiduciary duties and responsibilities as outlined above.

How to Determine Responsibility in HOAs

This is one of the most frequently asked questions involving community associations. It can come up at 2 a.m. after a dishwasher flood has damaged four units; when a homeowners association is re-roofing a building and wants to demolish people’s decks to gain roof access; when an owner’s uninsured contractor makes a hole in a pipe and causes a flood; or when mold is found as a result of leaks in common areas and owners’ failure to ventilate units properly.

The question has no easy answers and usually generates heated emotions. Here are some general principles that may help you sort out the answer.

What Do the Governing Documents Provide?

The first place to look is in the HOA’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The most helpful provisions will usually be the following:

Definitions – Is the area in question common area, exclusive use common area or a separate interest? (In a condominium, the separate interest is a unit. In a planned unit development, it is the lot and the residence.)

Division of Property – This section often explains who owns and maintains various areas of the development.

Powers and Duties of the Association – See what the CC&Rs say about the HOA’s maintenance responsibilities.

Owner Maintenance Responsibilities – See what it says about the owner’s maintenance responsibilities.

Reviewing these provisions will answer a high percentage of questions about who must pay for various items. If your CC&Rs are unclear about specific areas, this should be addressed when you revise your governing documents. The attorneys who prepare the revisions usually don’t know nearly as much about your building as you do; so be sure to bring any ambiguities about this subject to the attention of the attorneys who are preparing the revisions.

Try Looking at Civil Code Section 4775

After you have looked at your governing documents, the next step is to check Civil Code Section 4775. That code section is part of the Davis-Stirling Act, and it currently states:

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

This is one of the few provisions of the Davis-Stirling Act that does not prevail over contradictory provisions of the CC&Rs. However, if the CC&Rs do not “otherwise provide,” then Civil Code Section 4775 controls, except as discussed later in this article.

A bill was signed by Governor Brown in September of 2014 that will significantly alter Civil Code Section 4775. While the new law will not go into effect until January 1, 2017, it is important that your HOA be aware of the coming changes to prepare their CC&Rs to accommodate the law. Look to ECHO to provide tools and material to best help your HOA through the process.

Read more about the changes to Civil Code Section 4775 

How to Determine Common Areas and Exclusive Use Common Areas

How do you figure out what is a common area, what is exclusive use common area and what is a separate interest? First, look at your documents. If that does not help, review Civil Code Sections 4075-4190.

Civil Code Section 4185 provides that a separate interest in a condominium is a unit as described with detailed boundaries in the condominium plan (Civil Code Section 4125). In a planned unit development, a separate interest means “a separately owned lot, parcel, area or space.”

Civil Code Section 4185 goes on to say, “Unless the declaration or condominium plan, if any exists, otherwise provides, if walls, floors or ceilings are designated as boundaries of a separate interest, the interior surfaces of the perimeter walls, floors, ceilings, windows, doors, and outlets located within the separate interest are part of the separate interest and any other portions of the walls, floors, or ceilings are part of the common area.”

Thus the surfaces of walls, floors, etc., are separate interest but, unless the documents say something else, the sheetrock, subfloor, etc., are common areas.

Learn more about designating maintenance responsibility for condominiums and planned unit developments

Another very helpful provision is found in Civil Code Section 4145, which defines exclusive use common area as follows: “A portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the separate interest or interests. Unless the declaration otherwise provides, any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, door frames, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest” (emphasis added).

The bottom line is that unless the CC&Rs say something else, the owners are responsible for maintaining the exclusive use common area and unless the CC&Rs say something different, the items listed in  Civil Code Section 4145 are all exclusive use common areas.

Damage Caused by an Individual

The above principles are modified by the common law of negligence and, sometimes, by other CC&R provisions. Under the common law, everyone has a “duty” to act reasonably to avoid foreseeable risk of harm to other people. The failure to do this is negligence. If someone’s negligence causes property damage, wrongful death, bodily injury, etc., the negligent person is responsible for the consequences.

Thus, even though the separate interest is usually supposed to be maintained by an owner, the rule is usually different if the homeowners association was supposed to maintain the roof, a common area, but did so negligently; and, as a result, the roof leaked and damaged the separate interest. In that case, it is up to the HOA to fix the damage to the owner’s separate interest and personal property.

This rule does not always help, however. What if an owner’s dishwasher leaks and causes a flood? Can you prove the owner was negligent? Alternatively, did the dishwasher leak all of a sudden, with no warning, in which case maybe the owner was not negligent, after all? Fortunately, such damage is often covered by insurance!

Insurance Considerations for HOAs

The CC&Rs usually require a community association to purchase insurance for the common areas. The community association will purchase “property insurance,” which covers the common areas if they are damaged by an insured peril, such as a fire or windstorm. The HOA will also purchase liability insurance, which will cover damage caused by the homeowners association’s negligence. Many times, damage to the common area will be covered by one or both of these policies. Most policies define common area in the same way it is defined in the CC&Rs. However, HOAs should have a written policy, or a CC&R provision, setting forth who pays the deductible in various circumstances. Usually, if the HOA was negligent, or if no one was negligent, the association pays the deductible. If the damage originated in an owner’s unit, then often, the owner is asked to pay the deductible, whether or not the owner was negligent.

Insurance does not cover all possible damage, however. What happens if an owner does not have liability insurance; he hires an uninsured contractor to do work in his unit; the contractor whacks a common area water pipe and causes a flood, and the flood damages the separate interests? The homeowners association’s property policy will not cover the separate interests. The HOA’s liability policy will not cover it either—the association did nothing negligent! The owner who hired the contractor is liable, but if the damage is hundreds of thousands of dollars—which can happen, neither he nor the uninsured contractor can afford to pay. Sometimes the individuals whose separate interests are damaged are underinsured. This can result in owners, who are innocent victims being displaced for months, having all their property destroyed, with no good source of obtaining payment! For this reason, although it is hard to enforce, many homeowners associations amend their CC&Rs to require all owners to purchase liability insurance! Others at least strongly “urge” owners to do so.

Damage Done for the Good of the Community

Sometimes CC&Rs do not address the issues that are presented when a community association must destroy or damage individually owned property for the common good. For example, perhaps there are exclusive use decks that prevent the HOA from accessing the roof membrane. When it is time to re-roof the building, the association has to demolish the decks. Who pays?

The HOA may take the position that, because the CC&Rs and Civil Code Section 4775 says that the owner of the separate interest must maintain the exclusive use common area decks, the owner must pay.

The owner will say there was nothing wrong with the deck; it had to be demolished to re-roof the building, and the cost is part of the association’s cost of maintaining common area.

Many courts have made analogies between homeowners associations and mini-governments. Under this analysis, we can conclude that the association, in demolishing the decks, is doing something like what a government does when it takes privately owned property for a public purpose. The homeowners association, like the government, must compensate the property owner for the taking. However, if the deck was nearly worn out, the association should pay only for the deck’s remaining useful life, not for a brand-new deck.

Changing the CC&Rs to Reallocate Maintenance Responsibility

Sometimes, HOAs change the allocation of responsibilities by amending the CC&Rs. This may or may not be a good idea.

Sometimes, the original CC&Rs required owners to maintain particular components. If some owners do not do this in a timely manner, it can damage other people’s property values. Sometimes, the HOA can achieve economies of scale by replacing all decks at the same time; it would cost a lot more if each owner replaced only one deck. It may be particularly appropriate for an association to assume maintenance responsibilities when it is impractical for individual owners to maintain a component. How reasonable is it to expect individual owners to maintain, repair and replace windows on a multi-story building? Each owner has to scaffold the building to replace one window! That makes no sense. If an association is going to assume maintenance of components, be sure to reserve for the new component.

When an area is inaccessible, it is often easier to have the owner maintain it. However, sometimes, associations with financial problems trying to solve them by shifting responsibility for components to individuals. This is not always wise; it can lower property values because not all owners have pride of ownership, and fixing each component individually loses all ability to get economies of scale.

Summary

Sometimes, figuring out who pays for what in a community association is a big headache, and the answer makes everyone unhappy. The best ways to avoid these problems are the following:

  1. Amend your CC&Rs to make the solutions to these problems as clear as possible.
  2. Require or encourage each owner to obtain his own liability insurance and adequate levels of property insurance.
  3. Adopt clear policies about who pays the insurance deductible.
  4. Act fairly and use common sense.

These steps will help you cope with these thorny issues.

 

Pool Sign Rules

The California Code of Regulations was recently supplemented with new Building Code Requirements for mandatory new pool signs, one of which requires adult supervision of children and contradicts advice under Federal discrimination requirements.

California Code of Regulations, Chapter 31B apply when “construction, installation, alteration, addition, relocation, replacement or use of any public swimming pool.” The Chapter specifically sites “auto and trailer park[s]” and “mobile home park[s]” as examples of public swimming pools.

The supplement release date was September 12, 2012 and it has been advised that industry members consider the new rules as effective now. Local counties will oversee and enforce these regulations.

The new sign regulations under the Building Code, CHAPTER 31B, SECTION 3101B, et seq. require the following:

3120B.3 No diving sign. Signs shall be posted in conspicuous places and shall state, “NO DIVING” at pools with a maximum water depth of 6 feet or less.

3120B.4 No lifeguard sign. Where no lifeguard service is provided, a warning sign shall be posted stating, “WARNING: NO LIFEGUARD ON DUTY.” The sign also shall state in letters at least 1 inch (25 mm) high, “Children under the age of 14 shall not use the pool without a parent or adult guardian in attendance.” (this language is prohibited by U.S. v. Plaza and considered discrimination against families with children)

3120B.5 Artificial respiration and CPR sign. An illustrated diagram with text at least 1/4 inch (6 mm) high of artificial respiration and CPR procedures shall be posted.

3120B.6 Emergency sign. The emergency telephone number 911, the number of the nearest emergency services and the name and street address of the pool facility shall be posted.

3120B.7 Warning sign for a spa pool. A warning sign for spa pools shall be posted stating, “CAUTION” and shall include the following language in letters at least 1 inch (25 mm) high:

  1. Elderly persons, pregnant women, infants and those with health conditions requiring medical care should consult with a physician before entering the spa.
  2. Unsupervised use by children under the age of 14 is prohibited.
  3. Hot water immersion while under the influence of alcohol, narcotics, drugs or medicines may lead to serious consequences and is not recommended.
  4. Do not use alone.
  5. Long exposure may result in hyperthermia, nausea, dizziness or fainting.

3120B.8 Emergency shut off. In letters, at least one inch (25 mm) high a sign shall be posted at the spa emergency shut off switch stating “EMERGENCY SHUT OFF SWITCH.”

3120B.9 No use after dark. Where pools were constructed for which lighting was not required, a sign shall be posted at each pool entrance on the outside of the gate(s) stating, “NO USE OF POOL ALLOWED AFTER DARK.”

3120B.10 Keep closed. A sign shall be posted on the exterior side of gates and doors leading into the pool enclosure area stating, “KEEP CLOSED.”

3120B.11 Diarrhea. A sign in letters at least 1 inch (25 mm) high and in a language or diagram that is clearly stated shall be posted at the entrance area of a public pool which states that persons having currently active diarrhea or who have had active diarrhea within the previous 14 days shall not be allowed to enter the pool water.