The HOA Board Quarterly Fall 2014 Issue #11 | Page 3

It’s The Law
by Brian Blackwell, CCAM

C

THE LAW OF THE LAND

hange is good – or so goes the familiar adage - and
yet we resist. Along with everything else in life, the
many laws related to community associations are
regularly revised and/or new ones are being created.
Today’s grievance by a homeowner may be tomorrow’s
law. Sacramento is where these new bills are continually
being proposed and new legislation is adopted. This
continuing cycle makes it very important for the Board
to stay abreast. Equally important, it is vital that your
manager stay educated and attend annual legal updates
and symposiums and stay well informed on amended and
new laws.
Meanwhile, I always encourage my board of directors
to utilize legal counsel when considering anything of a
legal matter: interpreting governing documents, reviewing
contracts, etc. Remember the Business Judgment Rule
from Edition 8? The Corporations Code provides that even
though officers and directors are fiduciaries, they can
make poor decisions that result in damage or loss, but still
avoid personal liability if they performed their duties:
• In good faith
• In a manner in which the director believes to be in the
best interests of the corporation
• With such care, including reasonable inquiry, as an
ordinarily prudent person in a like position would use
under similar circumstances
In other words, soliciting the advice of experts, such as an
HOA attorney.
It probably won’t hurt to reiterate the Business Judgment
Rule: I like to use the example, if you as an individual, or
the Board as a whole, are involved in a lawsuit brought
against you and/or the Board, and the judge ask “what did
you base your decision on?” and you’re able to reference
an expert on the subject in question, that will be very
favorable. If the decision made by you and/or the Board
has no supporting expert, the judge will be concerned.
New Laws for 2015
Laurie S. Poole, Esq. with Peters and Freedman law firm
shared the following:
AB 2100 - Amends Civil Code Section 4735 to prohibit an
association from imposing a fine or assessment against a
member for reducing or eliminating watering of vegetation
or lawns during any period for which the Governor has
declared a state of emergency, or a local government has
declared a local emergency, due to drought.
SB 992 - Amends Civil Code Section 4735, adds Section
4736. This bill exempts associations that use recycled

water for landscape irrigation, from the prohibition against
fining a homeowner who fails to water landscaping or
allowing it to die (which was added by AB 2100). Under
new Civil Code §4736, any provisions in the governing
documents that require pressure washing of separate
interests (e.g., residences) or exclusive use common area
(e.g., patios or decks) are void and unenforceable during a
drought-related state of emergency.
AB 2104 - Amends Civil Code Section 4735 to expand the
types of documents that are not allowed to prohibit, or
include conditions that have the effect of prohibiting, the
use of low water-using plants as a group, or if it has the
effect of prohibiting or restricting compliance with a local
water-efficient landscape ordinance or water conservation
measure. In addition to the “governing documents” an
association’s architectural or landscaping guidelines or
policies may not contain such prohibitions or restrictions.
AB 1896 – Only applies to Coachella Valley and Amends
Water Code Sections 32601 and 32602. Prohibits use
of potable water use for landscaping in an association’s
common areas if the water district’s board of directors
determines that suitable non-potable water is available.
AB 968 - Repeals and replaces Civil Code Section 4775 as
of January 1, 2017. The new §4775 will clarify that the
association maintains, repairs and replaces common area,
owners maintain exclusive use common area and