Selected Developments
February 2023 Update
NOTE: Extensive revisions were included in the February 2021 Update and July 2020 special interim supplement, which covered the sweeping statutory changes resulting from SB 323 (Stats 2019, ch 848) and SB 754 (Stats 2019, ch 858), effective January 1, 2020. Updates resulting from the 2020–2021 legislative session, including AB 1101 (Stats 2021, ch 270), SB 391 (Stats 2021, ch 276), AB 502 (Stats 2021, ch 517), SB 392 (Stats 2021, ch 640), and SB 432 (Stats 2021, ch 642) are reflected in chapters 2 and 9.
Legislative Developments
Effective July 1, 2022, the Department of Fair Employment and Housing was renamed the California Civil Rights Department (CRD) and the URL was changed to https://calcivilrights.ca.gov.
Beginning January 1, 2023, the Civil Code is amended to add §4739, providing that “[n]otwithstanding Section 4740, an owner of a separate interest in a common interest development shall not be subject to a provision in a governing document, or amendments hereto, that prohibits the rental or leasing of a portion of the owner-occupied separate interest in that common interest development to a renter, lessee, or tenant for a period of more than 30 days.” See AB 1410 (Stats 2022, ch 858).
REMINDER: In the wake of the 2021 COVID19 pandemic, CC §5450 was enacted to permit meetings via teleconference without a designated physical meeting place if local, state, or federal officials have declared a state of emergency or disaster. See §2.39.
REMINDER: Senate Bill 392 will allow, beginning on January 1, 2023, homeowners associations to use email as a method of sending notices and documents to members, subject to the member’s preferred method of delivery. See §2.154.
REMINDER: Effective January 1, 2021, under CC §4751, a covenant that either “effectively prohibits” or “unreasonably restricts” the construction or use of an accessory dwelling unit (ADU) or junior accessory dwelling unit (JADU) is void and unenforceable. Reasonable restrictions on ADUs and JADUs are excepted from this ban. See §6.41 for details.
REMINDER: Effective January 1, 2021, CC §§4740 and 4741 substantially limit the validity and enforceability of rental restrictions in common interest developments. See §§6.49–6.53, 6.58, 6.64.
Case Developments
In Garnier v O’Connor-Ratcliff (9th Cir 2022) 41 F4th 1158, a school board member’s social media page was held to be a “designated public forum” subject to First Amendment protections. While associations are not governmental entities, the case may bear some relevance in light of the willingness of courts to characterize them as “quasi-municipal” entities. See §4.34.
In Protect Our Neighborhoods v City of Palm Springs (2022) 73 CA5th 667, the court upheld a city’s allowance of short-term rentals in single-family tracts, concluding that such use was consistent with the zoning code’s definition of vacation rentals as a permissible “ancillary and secondary use” of residential property. See §6.33.
In Watters v Homeowners’ Ass’n (7th Cir 2022) 48 F4th 779, the court held that in denying a property owner’s request for a privacy fence that was precluded by association rules, the association did not violate the owner’s rights under the Fair Housing Act when the owner did not disclose his diagnosis of post-traumatic stress disorder when making his request for the fence. See §§8.53, 8.62.
In Sheen v Wells Fargo Bank, N.A. (2022) 12 C5th 905, the California Supreme Court held that the economic loss rule barred a borrower’s claim against home mortgage lender for negligence in the application process. See §11.15.
In Gerlach v K. Hovnanian’s Four Seasons at Beaumont LLC (2022) 82 CA5th 303, the court held that a homeowner’s tile roofs were not “manufactured products” within the meaning of the Right to Repair Act, such that any improper construction or installation of tile roofs that resulted in roofs being likely to leak or that resulted in loose roofing material was not actionable thereunder. See §11.69.
In Aronow v Superior Court (2022) 76 CA5th 865, the court held that if a claimant can prove indigent status and inability to pay its share of the arbitration fees, the court has discretion to either decline to enforce an arbitration clause to permit access to the superior court for resolution of the claim or require the party seeking to enforce the arbitration clause to pay the claimant’s share of the arbitration fees. See §11.100.
