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SoCal 2007 WildfireRoadmap to Recovery:Interfacing with an HOA after a total loss; Meeting 17: July 17, 2008Rancho Bernardo Community Presbyterian Church
SoCal 2007 WildfireRoadmap to Recovery:Interfacing with an HOA after a total loss; Meeting 17: July 17, 2008Rancho Bernardo Community Presbyterian Church
www.unitedpolicyholders.orgKaren [email protected]
Mark your calendar for upcoming Roadmap to Recovery meetings…
Thursday, July 31: Integrating fire-resistant technology/techniques into your rebuild
August - Insurance interest group meetings only Thursday, August 14 Thursday, August 28
Thursday, September 11: Pre-1st Year Fire Anniversary Legal Issues
Additional Support Resources from United Policyholders to Help You Navigate the Catastrophic Property Loss Recovery Process: Disaster Recovery Mentor Program
Previous catastrophic loss survivors are available to provide emotional support and “real-life” insight about recovering from a catastrophic property loss. For more information, e-mail Karen Reimus at [email protected];
“Survivor to Survivor” ListserveA restricted listserve for ‘07 Firestorm Survivors only. It provides a convenient means of sharing valuable information with others who are similarly situated. For more information, e-mail Karen Reimus at [email protected];
“Ask An Expert” On-line Forum A restricted on-line forum where 2007 Firestorm Survivors can easily obtain answers to disaster recovery-related questions from experts in the field. Forum participants can direct questions to: 1) an attorney, 2) a claims handling professional, or 3) a previous catastrophic loss survivor. For more information, e-mail Emily Cabril at [email protected].
Videos of Roadmap to Recovery Meetings Now Available… Previous Rancho Bernardo Roadmap to Recovery
meetings may now be viewed as videos at the United Policyholders website
To view previous meetings, go to www.unitedpolicyholders.org. On the homepage, at the top left corner. It says, "'Roadmap to Recovery'
Watch and listen to live videos". Click on that verbage and you will be directed to a page that lists the previous Roadmap to Recovery meetings
From there, simply click on the meeting date/topic that you want to view. Download time for the videos varies depending on computer and internet connection
United Policyholders Website
Going home one step at a time
Celebrating along the Road Home: Ideas and Encouragement for 2007 Fire Survivors
from Cedar Fire Survivors, United Policyholders, and RBCPC
NEW P
AMPHLETJan Rasmussen, RB United will distribute
The Fine Print…
The information provided in this program is intended for general educational purposes only. It should not be construed as legal advice.
The speakers at today’s program are volunteering their time as educators.
Neither United Policyholders nor the Rancho Bernardo Community Presbyterian Church endorse or warrant the quality or services of any volunteer speakers.
Roadmap to Recovery Series: Successfully Navigating Your
Homeowners Association’s Architectural Review Process
Speaker:Luis E. Ventura, Esq.
LAW OFFICE OF LUIS E. VENTURA4190 Bonita Road, Suite 206
Bonita, CA 91902Phone: (619) 479-7333
Fax: (619) 479-7322Email: [email protected]
Speaker Profile:
Luis E. Ventura was admitted to practice law in California in 1995 and
concentrates his practice in homeowner association law throughout San Diego
County and beyond. Luis handles issues of homeowner association governance,
architectural review, litigation, monthly assessment collection, transactional matters,
etc. He also handles general civil litigation matters including malicious prosecution
and defamation related cases, among others. Luis is past chair of the San Diego
County Bar Association’s Construction Law section and has served on the San Diego
County Bar Association’s Legal Ethics Committee since 2002. He also reviews law
firm promotional and advertising materials (brochures, web pages, etc.) for ethical
concerns.
I. The Bad News:
a) Almost all associations have a Declaration of Conditions, Covenants and Restrictions (CC&Rs) that provide for architectural control/review, i.e., limiting your right to have your castle look the way you want.
b) A small group of people—the Architectural Review Committee (ARC)—who do not own your home/lot can use their subjective views, in addition to objective requirements, in determining whether to approval/disapprove your plans. (See, e.g., Clark v. Rancho Santa Fe Assn. (1989) 216 Cal.App.3d 606.);
c) Courts will not overturn an ARC’s denial of architectural requests unless there has been a patent abuse of discretion, i.e., only if the ARC has acted arbitrarily, capriciously, or in bad faith. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, p.979.) Courts are to generally defer to the ARC’s decisions and are not to substitute their own judgment in place of the ARC’s. (Ibid.)
d) Most CC&Rs, even in single family detached neighborhoods, do not expressly deal with complete losses and the rebuilding of an entire home.
e) Complete rebuild provides greater likelihood of disagreements.
II. The Good News: a) Despite what Michael Turko would you have you believe, the vast majority of
associations are not out to stick it to the owners. b) With knowledge of the process, a “let’s work together” attitude, and an
understanding of the ARC’s point of view, you should be able to navigate the review process successfully.
III. The Steps: a) Educating yourself: read all architectural provisions in the CC&Rs and in
any architectural guidelines line by line.
b) Conceptual Plan: Some CC&Rs require a review of conceptual plans before the review of detailed plans. Even is no conceptual review required, first submit such plans weeks ahead of time and ask to meet with ARC to discuss any preliminary issues/concerns/thoughts.
i) let ARC know you are nice people; have the better communicator be the point of contact;
ii) that you want to follow the rules;iii) that you understand they might have some things they are concerned about;
c) Plan Submission:
i) Detailed submission with all relevant information and correct number of copies; use the association forms in architectural guidelines;
ii) personally deliver plans; alternatively, call to confirm receipt and to ask whether
any questions/comments or additional information you can provide; d) The Decision:
i) What does ARC typically consider? CC&Rs will often set forth: color, finishes, size, location, conformity with rest of neighborhood**, etc.
ii) Consideration of views permissible? Some CC&Rs expressly allow
for this. Law generally does not provide any protection for views;
iii) Was decision timely made? Most CC&Rs have automatic approval provisions if ARC fails to deny within 30/45 days. Newer CC&Rs (last 8 years or so) have automatic denial provisions;
iv) Decision must be given in writing including explanation why submission was disapproved and description of procedure for reconsideration by Board (section 1378(a)(4)).
e) Appeal to the Board:
i) Right to appeal set forth in CC&Rs?
ii) Right to appeal in open meeting of Board now provided by statute (section 1378(a)(5)); no such right if original decision made by Board or by body (e.g., ARC) with same membership as Board if decision was made in open meeting.
f) Use of Internal/Informal Dispute Resolution Procedure (IDR)
(section 1363.810 et seq.)
i) all associations must have written IDR procedures; if none, default
statutory procedure applies (section 1363.840);
ii) at minimum, IDR must provide:
A) request to use IDR to be in writing;
B) if owner requests, association must accept; if association requests, owner has option of declining;
C) prompt deadlines, including time to respond to request;
D) any resolution made in IDR binds association so long as not in conflict with the law or the governing documents;
E) owner not to be charged a fee.
IV. Common Owner Complaints:
a) Large Deposit/Fee for Plan Review:
i) How to address?
A) Is this authorized by CC&Rs or architectural guidelines?B) Is it a written rule?
1) all “operating rules” and changes thereto (Civil
Code section 1357.100(a) and (b)) must be in writing and must be “reasonable,” in addition to other requirements (section
1357.110(a-e));
C) Was amount properly established by following procedure for adoption of rules? Following applies to rule changes commenced on or after January 1, 2004; not affect anything that predates this:
1) applies to “[u]se of a separate interest [i.e., your home/lot], including any aesthetic or architectural
standards that govern alteration of a separate interest” (section 1357.120(a)(2))
and to
“[a]ny procedures for reviewing and approving or
disapproving a proposed physical change to a member's separate interest or to the common area.” (Section 1357.120(a)(6));
2) did Board provide owners with at least 30 days written notice of rule adoption/change along with actual text of rule and explanation of its effect? (Section 1357.130(a-e));
3) Reversal of rule by owners? Takes a petition signed by 5% of homes to hold a vote of all membership on whether to veto rule. If majority of quorum votes to revoke rule, it is revoked and Board may not readopt it for at least one year thereafter. (Section 1357.140(a-h).)
D) Will the Board/ARC waive the fee or allow it to be paid over time?
1) Does the Board/ARC have authority to do so?2) If not, will it seek amendment of CC&Rs to give it such authority or change rule/guideline re fee?3) Unite affected owners and push for CC&R amendment to prohibit the charging of such a fee?
E) Is your homeowners insurance carrier obligated to pay for the fee in that it is necessary for rebuilding, just like a permit fee?
b) Imposing Strict Building Guidelines:
i) Height limitations, minimum size, etc.
ii) How to address?
A) All of the same procedures regarding architectural rules addressed above apply here as well;
B) Association must allow Fire Retardant Roof
Coverings for homes located in a “very high fire severity zone,” as designated by the Director of Forestry and Fire Protection or by a local agency. Cannot require the installation/repair of roof that would violate Health and Safety Code section 13132.7 which allows for use of roof material that is “at least class B as defined in the Uniform Building Code, as adopted and amended by the State Building Standards Commission.” (Civil Code section 1353.7(a-b).)
C) Guidelines cannot prohibit or have effect of
prohibiting use of low water-using plants as a group. (Section 1353.8.)
V.…and When All Else Fails…Litigation:
a) A bad resolution is often better than a good lawsuit.
b) Pre-litigation offer of alternative dispute resolution (ADR): with minor exceptions, prior to filing suit for enforcing CC&Rs, guidelines, etc., one must offer
ADR; normally mediation is offered, but arbitration can also be used.
Roadmap to Recovery: July 17th, 2008
Interfacing with an HOA after a total loss
Roadmap to Recovery: July 17th, 2008
Interfacing with an HOA after a total loss
David R Shalinsky, PhD
Background inWhispering Ridge Home Owners Association
Homeowner 1994 – present
Member, Board of Directors 1996 – 2005
Member and Chair, Architectural Committee 1999 – 2005
Cedar Fire Rebuild 2003 - 2005
Rebuilding after Fire Disaster is an Unusual Time Loss of control Emotions are raw Finances in upheaval Insurance blues Short fuses You know the drill…..
HOA Governance
CC&RsCovenants, Conditions & Restrictions
Board of DirectorsRules & Regulations
Architectural CommitteeArchitectural Review
Other CommitteesLandscape, Pool, etc
Understand Jurisdiction
Use of Land (buildable pad) City (PRD) Approval of Building Permit City (PRD) Esthetics, Look of home Arch Committee Exterior landscaping and hardscaping included
Key concept = harmonious with neighborhood
CC&Rs
Purpose … Rules and Regulations
Rules & Regulations
With respect to private homes, HOAs are responsible for esthetics Responsible to maintain common property
and open space ‘for the common good’
Purpose of a Homeowner Association
Prevent this
Purpose of a Homeowner Association
Promote this
Some Assumptions
You signed on…. I signed on Your HOA is in uncharted waters
Welcome to the club Volunteers are generally civic-minded Common commitment to restoration
CC&Rs Architectural Control
The Architectural Committee shall have the right and duty to promulgate reasonable standards on which to examine any request made pursuant to this Article, in order to ensure that the proposed plans conform harmoniously to the exterior design and existing materials of the Buildings in the Project.
Rules & Regs Guidance on Construction
Rules & Regs Guidance
Rules & Regs Guidance
WRHOA Policy after Cedar Fire
WRHOA Policy after Cedar Fire
Kept the same Arch Review process Each HO was responsible for own application Architectural application Architectural review & decision Right to appeal to Board
Goal to maintain similar nature of homes hips and gables roofing “wood-like appearance” general colors (earthtones)
Understood & embraced rebuilding of new custom neighborhoods Flexibility on: Stucco, Stone, Siding
WRHOA Policy after Cedar Fire
Waived architectural review fees Sought and procurred pro bono architects
Expedited review & personal service All members of Arch Committee lost home Met weekly for 7 months, biweekly thereafter Courier of plans to and fro Personal interactions w/ Building Dept Expedited approval after full review/comments
Examples of ‘Harmony’
Goal was to build homes with similar esthetic features to original
Working with custom, merchant builder and pro bono architects
Pre-existing homes
Pre-existing home
Pre-existing home
Pre-existing home
New home
New home
New homes
New home
New home
New Home
New home
New home
Home outside WHROA
Examples of unique homes
Homes with multiple or unique features
Working with custom, merchant builder and pro bono architects
New home
New home
New home
New home
New features can be harmonious
Specific Examples around Home Color Mis-communication: Change in Roofing
color led to changed color of house
Lack of communication: Color of house
Good communication: Color of house
What could have gone better
There is no blueprint for rebuilding after disaster CC&Rs do not address specific esthetic features Architectural Committee approved a few unique
homes based on lack of experience and/or intent of a few homeowners
A few homeowners didn’t play by the rules City and HOA didn’t set up an up front policy on
the use of the buildable pad Many homes have too little yard space
Landscaping issues
Landscaping & Hardscaping
Job isn’t finished until the paperwork is done!
What went well
>97% (163/168) homes achieved desired harmonious results SUBJECTIVE
Most homeowners rebuilt homes recognized as beautiful or tasteful SUBJECTIVE
Most homes rebuilt by 2 yrs
Lovely custom neighborhood arose
Great sense of satisfaction among Architectural Committee members & community
Inside Scoop:
Architectural Committees & Boards turn over inconsistency over time
An example of almost any architectural feature may exist in your HOA
Architectural features may or may not have been approved
- May have been,May have been installed without approval, May be a mistake
Regardless, does it pass the “harmony test?” SUBJECTIVE
Summary
You’re a full member of the HOA exists to serve you
Work with your Arch Committee in good faith “Harmonious construction” is subjective and not defined
by CC&Rs Rules and Regulations evolve over time You should not have to rebuild a home with dated
designs, materials or features You should be able to add designs, materials, and features within
the framework of ‘harmony’
Your HOA must follow the CC&Rs and you therefore need to know yours
Summary
Advocate on your behalf
Appeal Arch Committee decisions to the Board of Directors
Avail yourself of pro bono legal advice if necessary
HOA doesn’t want to be liable for wrong doing
CDI Consumer Hotline: 800-927-HELP
Mark your calendar for upcoming Roadmap to Recovery meetings…
Thursday, July 31: Integrating fire-resistant technology/techniques into your rebuild
August - Insurance interest group meetings only Thursday, August 14 Thursday, August 28
Thursday, September 11: Pre-1st Year Fire Anniversary Legal Issues
Break Out Sessions
State Farm : Dormer West Farmers : Skylight West
Allstate : Upper Courtside East
USAA: Small room off lobby
