AB916

Effective January 1, 2023

Enacts Government Code Section 65850.02.

AB 916 prohibits cities or counties from requiring a public hearing as a condition of reconfiguring an existing dwelling unit to increase the number of bedrooms – so long as the number of bedrooms is not increasing by more than two (2). The intention of AB 916 is to streamline the permitting process to increase housing supply to address the ongoing housing shortage issue in California. However, cities and counties can still require public hearing to increase the number of dwelling units with an existing structure.

Existing associations may receive more architectural applications for increasing the number of bedrooms in dwelling units and ADUs. This will impact planned developments more than condo associations. Associations may see an increase in the number of residents/tenants in any single dwelling unit/ADU. Higher density communities can expect an impact on a number of issues including, but not limited to, parking, noise complaints, common area maintenance, and pet concerns. Associations may consider tracking the increased population in the community to promptly identify governance and infrastructure issues.

AB1410

Effective January 1, 2023

Amends Civil Code Sections 5875, 4515, and 4739.

The three broad categories affected by the passage of AB 1410 relate to owners: (1) failures to comply with Homeowners Association (“HOA”) governing document requirements during declared states of emergency, (2) usage of social media, and (3) taking on of boarders.

Civil Code Section 5875 and HOA Requirements During Declared States of Emergency

AB1410 adds a new section to California’s Civil Code to address an issue that presented itself with more regularity during the COVID-19 pandemic but has also been present during California’s regular wildfire emergencies.

AB1410 created Civil Code Section 5875, which states:

An association shall not pursue any enforcement actions for a violation of the governing documents, except those actions relating to the homeowner’s nonpayment of assessments, during a declared state or local emergency if the nature of the emergency giving rise to the declaration makes it unsafe or impossible for the homeowner to either prevent or fix the violation.

During the Covid pandemic, many community associations were fining members for violations that were simply out of the member’s control.  The best example is the emergency room nurse who could not find parking in her condominium development because all of the members were home and the parking spaces were all full. The nurse parked her car in an unloading zone. The association towed her car preventing her from making it back to the hospital for her next ER shift.  Going forward, the statute may be applicable to an owner’s violation of separate interest maintenance requirements during a drought or wildfire, an owner letting domestic pets off leash during a wildfire, or an owner violating parking restrictions when the owner cannot get to the owner’s house during a flood. The statute is good in that a declared state of emergency does not necessarily grant carte blanche to homeowners to ignore any and all enforcement efforts by a community association, but only those that would make compliance unsafe or impossible as directly related to the emergency.  

Civil Code Section 4515 and Owners’ Ability to Freely Discuss the CID Without Retaliation

Civil Code Section 4515 has been in existence since its enactment in 2018. Civil Code Section 4515(b), as it existed prior to AB1410, prohibited a community association’s governing documents from disallowing owners to do the following: peacefully assemble; invite public officials, candidates for public office, or representatives of HOA organizations to meet with owners; use the common area to assemble or meet; canvass and petition owners; and distribute information related to common interest development issues.

This list of protected, speech-related activities was already robust. AB1410 has now added a new subpart (6) to Civil Code Section 4515(b), which states that an HOA’s governing documents shall not prohibit a member or resident of a common interest development from:

(A) Using social media or other online resources to discuss any of the following, even if the content is critical of the association or its governance:

(i) Development living.

(ii) Association elections.

(iii) Legislation.

(iv) Election to public office.

(v) The initiative, referendum, or recall processes.

(vi) Any other issues of concern to members and residents.

While this appears to be an expansion of the rights of owners to engage in even further discussion and dissemination of information, these rights already existed under the First Amendment to the United States Constitution.

Civil Code Section 4515(b)(6) limits this right to clarify that community associations are not required to provide any social media or other online resources to their members, and community associations are similarly not required to allow owners to post anything on its website.  This section was intended to protect the associations from any liabilities arising from the content of a post.

In addition to this, AB1410 added Civil Code Section 4515(e), which says:

An association shall not retaliate against a member or a resident for exercising any of the rights contained in this section.

While the statute does work to ensure the members can exercise their right to free speech, the statute does not change what language is and is not permitted. Threats of injury or fighting words are not allowed.  If any member, board member, or community manager raises any issues regarding the violation of a right to free speech, the community association should contact our office immediately.  The statute expressly includes a complete prohibition from retaliation for the free exercise of any of the speech and assembly rights.

Civil Code Section 4739 and Renting to Boarders for Periods of More than 30 Days

The last change affected by the passage of AB1410 has to do with allowing owners in a community association to take on boarders. This new Civil Code Section 4739(a) states that a community association cannot prohibit an owner living in their owner-occupied residence from renting a portion of that residence to an individual so long as that rental is for more than a 30-day period.

Civil Code Section 4739(b) adds that nothing in this new section allows the owner or their renter to violate any provision in the community association’s governing documents that deal with conduct or membership rights or privileges, namely parking restrictions, and guest access to common facilities.

Consistent with the recently passed Assembly Bill 3182, which added Civil Code Section 4741, and with it, the allowance of the rental or lease of separate interests up to 25% of the total separate interests in the HOA, AB1410 also was enacted with an eye to the affordable housing shortage in California. By expanding again the scope of permitted rentals with Civil Code Section 4739, community association’s will be compelled to allow for more rentals, though this time in owner-occupied residences. 

SB392

Effective January 1, 2023

Amends Civil Code Sections 4041, 4045, 4055, 5200, 5220, 5230, 5260, 5310, and 5320.

SB 392 modifies the rules for general and individual notice. Existing law requires individual notice be provided by first-class mail, postage prepaid, registered, or certified mail, express mail, or overnight delivery by an express service carrier. The document shall be addressed to the recipient at the address last shown on the books of the association; or e-mail, facsimile, or other electronic means, if the recipient has consented, in writing, to that method of delivery. The consent may be revoked, in writing, by the recipient.

Beginning January 1, 2023, notices subject to individual delivery must be provided in accordance with the preferred delivery method specified by the member. Each year, members must indicate their preference for delivery (mail, email, or both). The member must provide an alternate or secondary delivery method for receiving notices, but providing an email remains optional. To gather this information, associations must request the members preferred method of individual notifications at least 30 days prior to the association distributing its Annual Budget Report.

Existing law requires general notice be provided by posting the printed document in a prominent location accessible to all members if designated for the posting of general notices by the association in its annual policy statement. 

SB897

Effective January 1, 2023

Amends Government Code Section 65852.22, adds Government Code Section 65852.23, repeals and amends Government Code Section 65852.2, and amends Health and Safety Code Section 1980.12.

SB897 requires that standards imposed on accessory dwelling units (“ADU”) be objective. An objective standard means conditions of approval “involves no personal or subjective judgment by a public official and is uniformly verifiable, as specified.” Furthermore, an agency cannot deny an application for a permit to create an ADU due to correction of nonconforming zoning conditions, building code violations, or unpermitted structures that do not present a threat to public health and safety and are not affected by the construction of the accessory dwelling unit.

Local agencies must review, and issue demolition permits for detached garages that are to become ADUs. An applicant is not required to provide written notice or post a placard for the demolition of a detached garage that is being replaced by an ADU. The maximum height placed on an ADU is increased to eighteen (18) feet if the ADU is a half a mile (.5) walking distance from a major transit stop. Additionally, the maximum height can be twenty-five (25) feet if the ADU is attached to the primary residency and is not a JADU. Two ADUs are allowed if they are located on a lot that has an existing multifamily dwelling and is detached from the multifamily dwelling.

Local agencies are not allowed to impose parking standards on ADUs that are included in an application to create a new single-family or multi-family dwelling unit. Local agencies must also provide a list describing why an application was denied. Enclosed living spaces to the main dwelling area are considered junior accessory dwelling units (“JADU”). If a JADU does not have its own bathroom, there must be a separate entrance to the main dwelling living space. Permits for unpermitted ADU and JADUs built before January 1, 2018, and are in violation of building standards cannot be denied unless they pose a risk to public safety.

AB1738

Effective January 1, 2023

Amends Healthy and Safety Code Section 18941.11.

Existing law requires that the Department of Housing and Community Development propose to the California Building Standards Commission mandatory building standards for the installation of future EV charging infrastructure for parking spaces in multifamily dwellings and requires that the California Building Standards Commission approve and adopt building standards to codify such standards in the California Building Standards Code.  AB1738 will require the California Building Standards Commission and the Department of Housing and Community Development to research, develop and authorize the Commission and the Department to propose, for adoption, mandatory building standards for the installation of EV charging stations with low power level 2 or higher electric vehicle chargers in existing multifamily dwelling parking facilities, among other existing buildings.   

AB1738 provides that because new buildings make for a very small percentage of total buildings statewide, CALGreen Code requirements, which requires the installation of Level 2 electric vehicle charging stations in new construction, should also be applicable to existing parking facilities serving multifamily dwellings, citing that the installation of electric vehicle charging stations is most cost effective when it is concurrent with other construction on the parking spaces or the electric supply of existing buildings.  

While AB1738 only requires the research and development by the Commission and the Department of Housing and Community Development to propose and adopt building standards for existing multifamily dwelling parking spaces, the goal of AB1738 is to update the code every 3 years until: (1) there is adequate availability of charging given near-term electric vehicle charging needs; and (2) there is sufficient charging capacity to support the long-term goal of achieving 100 percent electric vehicles statewide.

Boards should be prepared that applicable law will require that there be adequate availability of charging given near-term electric vehicle charging needs keeping in mind the goal of AB1738, which is to provide 100 percent availability to EV charging stations. 

SB908

Effective January 1, 2021

Enacted the Debt Collection Licensing Act (“DCLA”)

SB908 provides for sweeping changes in the requirements, regulations, and monitoring of debt collectors and debt buyers (collectively, “Collectors”) by the Department of Business Oversight (“DBO”). Most notably, the Bill requires Collectors to obtain a license from the State of California, through the newly formed California Department of Financial Protection & Innovation (“CDFPI”), in order to transact business and collect upon “consumer debt.” It would also require Collectors to, among other things, file periodic reports (under oath) with the DBO, submit to a criminal background check by the Department of Justice, and maintain a surety bond.

Until recently, homeowners’ associations (“HOA”) in California has been in a limbo in determining if the collection of delinquent assessments is considered a “consumer debt” or constitute “consumer credit transaction,” which if so, would require HOA collection agencies (e.g., management company, law firm) to apply for and obtain a license. Additionally, Collectors working on behalf of HOA’s would have to comply with all of the stringent requirements of the DCLA detailed herein above.

In a recent post on CDFPI’s website, the department determined that the DCLA does not apply to the collection of “routine HOA assessments”:

The Department has determined that routine HOA assessments do not constitute a “consumer credit transaction” as defined under the DCLA, and therefore do not constitute “consumer debt” under the Act. Since the collection of routine HOA assessments is not considered to be collection of “consumer debt,” such activity would not constitute being engaged in the business of debt collection and does not require licensure under the DCLA.

Accordingly, HOA Collectors need not concern itself with the DCLA in applying for the license, providing periodic reports, and complying with the regulations and requirements of the same. However, HOAs are advised to proceed with caution and ensure that they are in compliance with all other applicable regulations in the collection of delinquent assessments such as the Davis-Stirling Act and The Fair Debt Collection Practices Act. Board members of HOAs should always consult with its legal counsel and collection agency to ensure that the HOA is not violating any laws applicable to the collection of delinquent assessments.