17 Legal Rights of Homeowners Living in HOAs

Homeowners associations act as both landlords and mini-governments to their members, which means homeowners have rights that HOAs should both acknowledge and protect. This requires mutual respect from both parties: homeowners must respect the HOA’s authority while the association must respect a homeowner’s individual freedoms. Yet the challenge is overcoming the classic one-sided perspective of seeing any conflict as only a board member or only a homeowner problem. Honesty, transparency, and respect are the foundations of community in every association.

Some boards of directors, when they become frustrated by an individual owner, don’t want to allow the right to inspect the books. They don’t want to be bothered. On the other hand, many homeowners grow suspicious when their board withholds information, and may even pursue legal action. So, what’s right and what’s unfair? Is there any legal protection for homeowners?

The answer is a resounding yes. In this article, we’ll discuss what homeowners can expect when living in an HOA, whether it be a condominium complex or planned unit development, as well as provide a list of homeowner rights specifically sanctioned by the Davis-Stirling Act.

What to Expect as an HOA Homeowner

In California, homeowners’ rights are established by the governing documents of the HOA, the Corporations Code (where it establishes guidelines for associations to govern their members), and the Davis-Stirling Act. Before a homeowner can question if they’re being treated unfairly by their HOA’s board, they must first learn their legally protected rights as part of the membership.

What Homeowners Should Expect from Their HOAs

Upon joining an HOA’s membership, homeowners should expect a certain quality of treatment from their association. These expectations are based on rights established in the law, or on basic standards of decency and respect.

  • Homeowners deserve a response to an inquiry, unless of course the inquiry is ludicrous or threatening, or the demand(s) are intended to harass.
  • Homeowners should expect that HOA financial and other records will be kept in a routine manner for reasonably easy access.
  • Homeowners should expect disclosure procedures which ensure easy access to most documents within a reasonable time and without unreasonable restrictions.
  • Homeowners should get a timely notice and a fair opportunity to be heard if the HOA intends to take disciplinary action against them.
  • Homeowners deserve consistent treatment in enforcement of rules and regulations.
  • Homeowners deserve a reasonable opportunity to vote in important elections or to appoint another to vote on their behalf.
  • Homeowners deserve to be informed of their voting eligibility if they do not qualify to vote per the governing documents before a vote is held.

Homeowners should try to educate themselves as much as possible on HOA rules and regulations to ensure they are being treated fairly and justly by their association.  Useful information can be gained from attending HOA educational seminars, sharing information amongst fellow members, reading publications and journals, and researching on the web. If you don’t know where to start, try asking your HOA’s manager, or reading this article on the basics of HOA operation. By knowing what is expected of the HOA and its governing board, you can better understand where you stand in the scheme of things, and most importantly, what rights you have as a member.

What the Law Expects of Homeowners

Homeowners should also keep in mind their own responsibilities under the law. There are two crucial court cases that affect the law for California condominium owners. The first is the long accepted principle first identified by a Florida District Court of Appeal in Hidden Harbour Estates, Inc. v. Norman, which is frequently cited in California condominium court cases. It states:

Inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit homeowners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he [or she] might otherwise enjoy in separate, privately owned property. Condominium unit homeowners comprise a little democratic sub-society of necessity more restrictive as it pertains to the use of condominium property than may be existent outside the condominium organization.

Therefore, condominium owners are expected to relinquish a bit of their freedom due to the nature of their living situation.

In the second case law, Nahrstedt v. Lakeside Village, the California Supreme Court ruled that HOA boards must put the collective rights of the community above the individual’s rights when it comes to enforcing the CC&Rs. This decision meant that despite any individual expectation of the HOA’s duty, the board will always put the community’s needs first, even if it means letting the grass go weeks without being cut to pay for roof maintenance

17 Member Rights Established by California Law

Board Meetings

Homeowners are entitled to 4 days’ notice and an agenda for all open association meetings. If an executive session is held at a separate time, homeowners must be informed at least two days before the meeting. No owner notice is required for emergency meetings (Civil Code Section 4920). Homeowners may attend and address the board at open meetings at the time and in the manner established by the board (Civil Code Section 4925). There are penalties in the statute including $500 fines for failure of the board to comply.

Inspection of Records

Homeowners may inspect many of the financial and other records of the HOA, although they have to pay the direct costs to produce the records for inspection (costs for copying and postage). If a homeowner requests the redaction of information that is private or could lead to identity theft, they must pay for those costs as well (Civil Code Section 5205(a)(f)(g)). There are penalties in the statute including $500 fines for failure of the board to comply.

HOA Records Homeowners Have a Right to Access
Annual budget report (Civil Code Section 5300) Reserves Summary (Civil Code Section 5565) and account balances
Interim financial statements Executed contracts
Approved vendor or contractor proposals State and federal tax returns
Any policy changes (Civil Code Section 5810) Meeting agendas and minutes
Membership lists Check Registers
Governing documents Documents for prospective purchasers (Civil Code Section 4525)

For the complete list of association records, see Civil Code Section 5200.

Disclosures

Homeowners are entitled to annual and other disclosures, which include: rules, fines, financials, budgets, reserves (including component list and funding plan), meeting minutes, assessments, insurance information, architectural procedures, and collection policies. Homeowners should also receive notices of dates, times and agendas of association meetings. (Civil Code Sections 4950(a)5300, and 5520), and are entitled to distribution of the balance sheet and income and expenses for the prior fiscal year within 120 days of the end of the fiscal year. (Civil Code Section 5300)

Hearings for Disciplinary Action

Homeowners are entitled to notice and the opportunity to attend a fair hearing if disciplinary action is being considered against them, including fines or the suspension of privileges (pool access, etc.). All homeowners are entitled to notice of fines through circulation of a fines schedule and notice of hearings by first class mail. (Civil Code Section 5855)

Communicating with Other Members

Unless the intention is suspect ( e.g. retaliatory conduct or business solicitation), homeowners are allowed to inspect and copy the HOA membership list or, alternatively, get access via mailing of the communication with labels/envelopes through a mailing house, so long as they pay the copy and mailing costs. (Corporations Code Section 8330 et seq., Civil Code Section 5205(a))

Serving on the Board

Homeowners have the right to run for the board if they qualify. Qualifications should be established in the governing documents and will typically require the member to be in good standing (or having fully paid assessments and not in violation of the governing documents). Members are also entitled to a fair election with equal access to HOA resources as other candidates, including incumbents. (Civil Code Section 5105(a)5135) There are penalties for failure to allow these rights in Civil Code Section 5145, including a potential $500 per violation fine against the association or possibly even the board.

Display of US Flag

Homeowners may fly flags in their separate interest areas (not including the common area). Boards can set reasonable parameters relating to the public health or safety, placement, type of display, and type of material. In any action to enforce this section, the prevailing party shall be awarded reasonable attorney’s fees and costs. (Civil Code Section 4705)

Notice of Airport in Vicinity

If the development is located within an airport influence area, any HOA’s CC&Rs recorded after January 1, 2004, must contain a specific statement giving notice of an airport in the vicinity. There are special rules for San Francisco. (Civil Code Section 4225)

Signs, Posters, Flags, or Banners; Exceptions

Associations must allow posting or displaying of noncommercial signs, posters, flags, or banners on or in an owner’s separate interest. However, rules and limitations can be made for the protection of public health or safety or if the posting or display would violate a local, state, or federal law. (Civil Code Section 4710) The board can also restrict signs that constitute a nuisance or display obscenity, and can control the signs made for HOA elections (with reasonable restrictions).

Use of Drought Resistant Landscaping

Homeowners must be allowed to incorporate some forms of low water-using plants or synthetic turf in their landscaping. (Civil Code Section 4735)

Electric Car Charging Stations

As of January 1, 2012 homeowners are entitled to install electric car charging stations at their expense but are required to get architectural approval. Associations may control place and manner and set restrictions for safety reasons (Civil Code Section 4745).

Modifying Unit for Access for Disabled Persons

Homeowners can request to make modifications to the property in order to gain access or facilitate the use of their units at their own expense, as long as these modifications do not impair the structural integrity or mechanical systems or lessen the support of any portions of buildings. Boards may set some conditions but cannot deny these requests unless the modifications will…

  1. Adversely affect the health or safety of neighbors OR
  2. Are not necessary for access or use because of viable alternatives. (Civil Code Section 4760, Fair Housing Laws)

Rights of Ingress, Egress, and Support & Access

Homeowners cannot be barred from “ingress” and “egress” (which are legal terms meaning getting to and from) their units, and cannot be barred from physical access to their units, unless…

  • The HOA has a court order
  • The HOA has an order pursuant to a final and binding arbitration decision
  • Reconstruction is needed
  • A hazardous condition exists
  • The unit is uninhabitable or red tagged. (Civil Code Sections 4505 and 4510)

Dogs, Cats, and Other Pets

No governing documents (including operating rules) passed or amended after January 1, 2010 may prohibit an owner from keeping one pet, subject to reasonable rules and regulations of the association. (Civil Code Section 4715) This does not mean a resident can keep a dangerous dog or nuisance pet on premises.

Satellite Dishes and Antennas

Homeowners are entitled to have satellite dishes. The board can set requirements relating to screening and placement. (FCC Rule 207)

Solar Installations

Homeowners are entitled to have certain solar installations. Boards are entitled to set reasonable restrictions that do not substantially increase the cost or decrease the efficiency. This includes requiring homeowners to remove their panels if and when the HOA has to maintain the roof. (Civil Code Section 714 and 714.1)

Towing Vehicles

Homeowners are entitled to know that the association can tow vehicles that violate the governing documents and must be given notice that they are in danger of being towed prior, which may be by tagging, a letter, or otherwise (Vehicle Code Section 22658.2).

Conclusion

Keep in mind that this list of rights and entitlements, while a good reference tool, is not all-inclusive. Homeowners can do a lot of other things according to HOA policies, but boards generally have ultimate control over architectural approvals, parking assignments, and any exterior additions or modifications, use of the common areas, and conduct (accomplished commonly through rule setting).

Homeowners who assertively pursue their rights through reasonable and proper channels can change their HOA, while boards who wrongly or purposefully deny rights of homeowners who are behaving reasonably will only hinder the HOA’s purpose. And when both parties work together towards one common goal, it’s amazing the community they can build.

– See more at: https://www.echo-ca.org/article/17-legal-rights-homeowners-living-hoas#sthash.iIuf9Yvo.dpuf

HOA Homefront – The rules on rules

It is important to create good association operating rules and to make sure the rule topics required by statute are also covered, but all that is wasted if the association fails to follow the required rule amendment process.

Because rules are amended only by the board, the Civil Code requires special procedures to alert members in advance when boards consider changing or creating rules.

Civil Code 4360 sets up the following two meeting process:

1. First meeting: The board must give members at least 30 days advance written notice, with a copy of the verbatim proposed change and a statement as the purpose and effect of the change.

2.  At the second board meeting, considering the rule change, the board must receive member comments (if any).

3.  If the rule change is adopted, notice must be given to members within 15 days after the meeting.

4.  If the change is controversial, 5 percent or more of the membership may, within 30 days of notification of a rule change, demand a membership meeting to vote upon its reversal.  If a majority of a quorum vote to overturn it, the rule change may not be reinstated by the board for one year.

The law allows for emergency rules, if immediate action is necessary to avoid imminent threat to health, safety or to substantial economic loss. Boards may pass emergency rules for up to 120 days but they cannot be renewed.

In making changes to association rules, consider these five process tips:

1.  Discuss the rule. If the rule change is too complicated to draft during the board meeting, then delegate someone (the attorney perhaps?) to draft language to be considered at the next meeting for publication. It is better to have good rules adopted slowly than poor rules quickly approved.

2.  Once the rule change motion is introduced and seconded, suspend board deliberations and reopen members’ open forum on the rule change. Chances are, there will not be much comment, unless the rule change is controversial.

3.  Listen to the members. The open forum aspect of the process is very important. Listen. If significant opposition to the rule arises, more consideration should be given.  Can the proposed change perhaps be improved?  Is the board disturbing a hornet nest, so that an overturn vote is all but certain? Such a rule change may not be in the best interests of neighborhood relations, even though it may have originally seemed like a good idea.

4.  Must the amendment be passed immediately? Perhaps after further study/discussion/modification, it can be republished to members for a later board vote.

5.  If the change is adopted, send notice to the membership quickly. Don’t wait to send it with the draft meeting minutes – the secretary has 30 days for the minutes, while this notice must go out within 15.

Perfection is not required. Per Civil 4350(d), as long as the board acts in good faith and in substantial compliance with the process, the rule should be valid, even if some minor noncompliance with the process occurs.

The law, while potentially frustrating, protects associations by forcing their boards to slow down before changing rules, thereby giving members an important voice in this process. The hoped-for results are better and less divisive rules and more harmonious communities.

What Not to Do When You Receive Communications from Your HOA Board

In our busy world of the internet, mobile phones, television, email, social media, and daily conversation, we’re on 24-7 information overload. We’re communicating non-stop all day, and when we finally reach the comfort of our home we just want to catch our breath. However, communication is what we were made for, and it keeps us informed about life around us. So, when you receive communication from the HOA board, there a few things you don’t want to do.

Don’t put the monthly newsletter in the junk mail pile

If you’re like us, you probably just throw your junk mail away without giving it a second glance or maybe it gets opened if the sender was clever enough to make it look interesting. Be sure to actually read the newsletter from your homeowners association, instead of putting it in the junk mail pile. It may have detailed articles about recent Board decisions, announcements about upcoming social events, or important information about legal issues or homeowner trends.

Don’t make a paper airplane out of your special notice

If you’ve violated a homeowners association rule or failed to pay your HOA fees, than you may be fined. Just like when you get a parking ticket, failure to pay can result in a $50 fine turning into $500 or the HOA board having to take action and hire an attorney. By acknowledging the notice received from your homeowners association, you can save yourself a lot of time and money too.

Don’t mark email communications as spam

Some homeowners associations may send out communications electronically to save paper and be more economical. These are important to take a glance at before hitting the delete button. They may be providing weekly reminders about operations, such as the time pool maintenance occurs; give you links to resources, such as home maintenance tips; or include attachments, such as the minutes of the HOA board meeting.

Don’t accuse your dog of eating the CC&Rs

When you first move into your homeowners association, you receive a copy of the Covenants, Conditions & Restrictions or CC&Rs of the association. It’s easy to just stash these away and forget about them, or maybe even lose them completely. Instead of blaming Fido for chewing them up, file them away in a safe place. They may be a valuable resource for you to come back to sometime if you have any questions at all about rules and regulations within the association.

Don’t ignore the bulletin boards

Take a moment to glance at the bulletin boards, usually in a central location of the homeowners association like the clubhouse or gate entrance. They often have approved flyers from other HOA members advertising items for sale or postings from the association advertising upcoming social events and meetings.

Don’t conveniently schedule to clean out your closets the night of the annual member meeting

The member’s meeting provides a recap of the homeowners association’s accomplishments from the past year, and well as the goals and activities for the upcoming year.

If you haven’t noticed the theme already, it’s important to be informed. Your HOA board should be doing everything it can to communicate with you, and it’s your job to pay attention.

Tips for Eco-Friendly High-Rise Living


Many high-rises want to implement “green” living practices and create eco-friendly communities. However, many of them don’t know how to get started. Before embarking on any sustainability program, consider forming a committee of interested residents to take ownership of the initiative. Conduct a poll to find out what kinds of programs residents are most interested in having so that your efforts get the maximum return. And, ask experts who can draw from best practices across many buildings and cities.

Read on to learn about programs and services you can put in place in your community at little to no cost!

1. Explore energy efficiency.
Energy and water conservation are the biggest ways to make your high-rise building greener and more sustainable. Lighting in common areas and heating and cooling systems all use substantial energy. By updating them to newer, more efficient systems or adding control systems your association can save enough on energy to pay for the upgrades over time, while saving nonrenewable resources,” according to Chris Normandeau, director of FS Energy. FS Energy helps clients significantly enhance their building’s efficiency by recommending strategies to reduce energy consumption, costs and emissions. The company’s energy experts locate incentives and create plans that will help your building conserve, save and thrive.

For example, in one high-rise building, FS Energy assisted the board in conducting an LED lighting upgrade in two stages. The first phase has involved the garage, valet, loading dock and elevator lobby. So far, Phase One has saved the association $12,000 in electrical costs.

During the second phase, side-defusing, high-efficiency LED lighting will be installed in all of the hallways. The association expects to recoup the costs of the Phase Two project in only 13 months, thanks to the resulting energy savings. All in all, the updated lighting effort is projected to save the association about $48,600 per year in energy costs alone.

Electric vehicle charging stations are another energy saver that are becoming more common in high-rises. Tax breaks and other incentives are drawing drivers to purchase electric vehicles and ultimately, those drivers need places to recharge them. By providing charging stations, your building can boost its eco-friendly reputation and become more attractive to potential buyers, too. Survey your residents to find out if electric vehicle charging stations are something worth considering.

2. Shred documents—securely.
Community shredding provides an easy, efficient way for residents to eliminate clutter while ensuring the safe, secure disposal of their confidential documents. There are options available ranging from locked receptacles for disposal of documents anytime to scheduled visits from a mobile shredding truck.  With the help of a professional community management company, your board can determine the most cost-effective and eco-friendly option for your residents. Not only will you be helping to prevent consumer fraud and identity theft, you’ll be cutting down on trash by recycling paper.

3. Reduce, reuse and recycle.
By 2020, California wants to see a 75 percent recycling, composting or source reduction of solid waste. The state is trying to reach this goal through a combination of approaches, including incentives, statutory and regulatory changes and recommendations.

Mandatory recycling. Among the regulations that affect high-rise buildings in California are mandatory commercial recycling requirements, which apply to any multi-unit building with five or more units. As of January 2016, the state also added mandatory organic waste recycling to these regulations.

It’s important that residents know what they need to do to comply with the state regulations. Be sure that someone can provide the answers to questions like:

  • Where are recycling bins located?
  • What materials can residents recycle, and how they should be prepared?
  • Is the recycling single-stream or do items have to be separated into different bins?
  • Can bottles have lids on them?
  • Should boxes be flattened?
  • What about Styrofoam or pizza boxes?
  • Do food containers need to be washed?
  • Are there special instructions for organic waste?

A professional community management team can assist your board or recycling committee with proper communications and compliance.

Recycling electronics. Recycling electronic equipment keeps lead, mercury, and other hazardous materials out of landfills and the environment. Depending on its size, your building may be eligible for a variety of on-site service options to conveniently and safely recycle unwanted electronics including TVs, VCRs, DVRs, satellite boxes, mobile phones, MP3 players, laptops, scanners and much more. Check with your local solid waste authority, department of sanitation or public works or waste management company for more information about these services.

If pick-up at your building isn’t an option, consider organizing a collection and drop-off at your local disposal site. For smaller electronics, keep in mind that area retailers may have recycling programs. For example, Home Depot collects batteries for recycling, as well as compact or linear fluorescent lamps, and Best Buy recycles small electronics such as cell phones.

Recycle clothing and textiles. According to second-hand retail chain Value Village, North Americans send more than 10.5 million tons of clothing and textiles to landfills each year. Consignment, online sales and donations to thrift stores and other charities are great ways to dispose of clothing that is in good shape but no longer works for you. What about clothing that’s stained, torn or just worn beyond usefulness? Recycle it! To find a textile recycler in your area, visit the Council for Textile Recycling website.

How are recycled textiles and shoes used? Pillow filling, baseball filling, paper money, home insulation, carpet padding and wiping cloths are a few of the products that can be made from recycled textiles. The Nike Grind program grinds up and recycles old athletic shoes into the surface material for running tracks, basketball courts and playground mats, as well as to make other Nike products. Shoes can be donated at Nike and Converse stores.

4. Have a community-wide clean-up day.
Your high-rise board or sustainability committee, in collaboration with your professional community management staff, can coordinate a building-wide clean-up day. This could be seasonal, twice a year or annual. Consider combining several of the initiatives mentioned above, and invite residents to recycle various products, donate clothing, electronics, and other materials and dispose of unnecessary items from their homes or storage units during the designated event hours.

With any of the programs above, clear, effective communication to residents is a critical part of the process. Policies and expectations need to be outlined, especially with regard to statutory compliance, and everyone should be reminded of these policies on a regular basis. Consider using all channels available to your residents, including social media sites, community website, newsletter, board meetings and much more. Once the committee or board decides what programs to implement, your professional community management company can help spread the word efficiently and effectively.

Implementing sustainable living strategies is highly beneficial for your residents, as well as for the environment. Developing an eco-friendly community promotes longevity for your property while increasing awareness of nature-friendly habits.

Changes are underway with the new administration – how will they impact you?

BY JUSTIN FEIT –

••••
President Trump’s agenda places several programs that have helped FMs in danger of being eliminated. Their survival depends heavily on the ability or willingness to push some key parts of his agenda through Congress.

After the unprecedented electoral victory of Donald Trump, the political climate in the U.S. has been in a state of flux. As the president fills in cabinet and department positions, enacts his agenda and navigates the tumultuous waters of the current political climate, the commercial building industry awaits Washington’s concrete actions and their wide-ranging impacts.

With Republicans holding both houses of Congress and the White House, budget cuts, tax cuts and deregulation are likely on the way. While some of these actions might help businesses, these actions will also have consequences for the buildings industry in the coming weeks, months and years. How will the current political situation affect you?

Information Sharing for Energy Efficiency

Michigan State University had a plan to boost its energy efficiency across the board but was in need of more information and strategies to enact changes across its portfolio of academic buildings, science facilities, parking ramps and athletic facilities. The Department of Energy’s voluntary energy program, the Better Buildings Challenge, provided these vital resources, even though it did not offer any financial incentives.

“We have saved close to $10 million over the past few years by installing energy-efficient measures across campus. We have reduced the energy footprint by 13% in the 20 million square feet included in the program,” says Lynda Boomer, Director of Planning Design and Construction at MSU.

Learning from similar universities that had undergone comparable projects, MSU found success in its energy-saving initiative. The information sharing partnership of the Better Buildings Challenge helped MSU enact HVAC upgrades, chiller replacements and insulation improvements for optimal efficiency.

Through the Better Buildings Challenge, partners commit to improve the energy use of their building portfolios by at least 20% within 10 years and lead the way in a network for peer-to-peer collaboration,” says Maria Vargas, Director of the Better Buildings Challenge. “By showing how energy efficiency has been successfully adopted – and the barriers addressed and overcome – these partners are examples for others across a myriad of building types and locations.”

Since joining the initiative, MSU has been able to achieve considerable savings in its facilities, and the program has been successful across the board in reducing energy usage in buildings.

“MSU became aware of the Better Buildings Challenge and Alliance through involvement in the International Institute for Safe Laboratories (I2SL). We had just completed the energy transition plan and were already on the path to reducing energy use on campus and becoming more efficient, so it was a good fit to join the Better Buildings Challenge,” says Boomer. “While they did not provide any financial aid, the program gave MSU an opportunity to network with other universities and suppliers that could provide ideas and opportunities for energy saving projects.”

In practice, the Better Buildings Challenge has been successful in helping participants reach that 20% goal. “Partners have saved 240 trillion BTUs in energy consumption, $1.9 billion in cost savings, 15 million tons in avoided carbon emissions, $8.6 billion in funds extended by financial allies partnering with DOE and 4 billion gallons in water savings,” says Vargas.

Initiatives that the voluntary Better Buildings Challenge has started include the Financing Navigator to help people find financing options, greater focus and research on data center energy use, water efficiency pledges that save both water and energy, and the SWAP, a reality TV-inspired web series in which property managers from two organizations look for savings opportunities in each other’s buildings.

The voluntary nature of the project allows organizations to earn recognition and share energy information with other participants, which can provide the spark for worthwhile changes. However, the future of the Better Buildings Challenge is in jeopardy due to a recent executive order and the future federal budget.

The Trump Trajectory

President Trump has targeted several Obama-era policies that directly relate to the buildings industry through executive actions and legislative proposals. One needs to look no further than the Better Buildings Challenge, which former President Obama introduced in his 2011 State of the Union address as a means to reduce greenhouse gas emissions. In his 2013 Climate Action Plan, Obama’s agenda included expanding the Better Buildings Challenge.

However, the Trump administration has taken aim at Obama’s Climate Action Plan with the Presidential Executive Order on Promoting Energy Independence and Economic Growth, identifying goals of striking down energy-related regulations that executive departments have mandated in the past. This executive order could threaten the future of the Better Buildings Challenge, although it is not yet clear how or to what extent.

Executive orders have some historical precedent of being more symbolic, guiding the vision and overall policy of a presidency. Whether or not this particular executive order will on its own largely impact Obama’s Climate Action Plan is unclear at this point. But what an executive order may or may not be able to accomplish can be done so through legislation.

The budget proposal Trump will expand and hopes to usher through Congress provides more concrete plans for cuts within several departments that house energy efficiency programs. While this budget proposal will undoubtedly undergo major changes to placate the many factions of the House, the original budget presented provides insight into the trajectory this administration would like to follow as far as federal funding goes.

Two of the most important departments to look at with the budget proposal are the Department of Energy and the Environmental Protection Agency, both of which would face cuts in 2018.

The DOE’s proposed cuts seem small compared to other departments with 6% or $1.7 billion in cuts having been proposed to its 2017 allocation. However, under this prospective budget, the National Nuclear Security Administration would receive a $1.4 billion boost, meaning cuts to other programs in the department – ones that might impact building operators – compound under this budget.
One of the hardest-hit agencies under the proposed budget cuts is the EPA; the agency’s overall budget would shrink by 31% or $2.6 billion. Stating a desire to cut back on regulations that hinder businesses, the president set his sights on cutting one particular program in the EPA: ENERGY STAR.

How to Handle Service Pet Policies without Discriminating

Let’s start the discussion and analysis with a hypothetical fact pattern:

Tenant Victor wants to have a service dog in his apartment. You are the resident manager of a mid-sized apartment complex of 50 units. Your property management company has a “no pet policy” in the apartment complex, with the exception of non-biting gold fish. Victor appears to be the model of good health. He works out at the apartment complex fitness center every day.   You get a letter that Victor claims to have a disability that requires the need of a service pet.  Victor claims that the nature of disability is confidential. In fact, he suffers from a psychological and emotional condition that has been diagnosed as “post Donald Trump Election stress disorder.”

He has been diagnosed by a psychiatrist with a mental illness that includes depression and stress over the election result, and suffers depression when he watches CNN, FOX, and CNBC. The psychiatrist has diagnosed his condition as a disability that may last 4 years or 8 years depending on if Donald Trump gets reelected. He suffered a recent strange unexpected relapse when he learned of President Obama’s speech fee which required Victor to have medication. His neighbors, mostly registered republicans, are not fond of Victor. He is hypersensitive to political news events and outcomes for both parties. When he drinks tea from Starbucks he gets nervous because it reminds him of the Tea Party platform.

After speaking to Victor on the phone, he tells you that he desires to have a comfort animal in his apartment to calm his nerves, and the proposed pet is named “Vera.” He sent you an email with a picture of Vera. His proposed comfort animal, Vera, is a small German Sheppard with no history of dog biting and no history of loud barking. He purchased the animal from a pet store in Berlin called Sheppardco. The doggy was shipped in a crate from overseas to Victor’s doorstep.   Victor has taken the dog to obedience school and has made an effort to get the dog certified as a service animal to help him calm his frazzled nerves.

As a property manager, what issues should you be aware of?   

  • Victor may have real disability if it can be shown with basic minimal documentation.
  • If the disability can be documented with a doctor’s note, you will have to allow him to have a pet like Vera even though it is a “no pet” apartment complex.
  • If you take a hard line and discriminate against Victor because of his alleged disability, you could be sued by Victor, or the state or federal government for disability discrimination.

What CA state and federal housing laws apply to this situation?

California State Housing Laws that Protect Disabled Persons

Individuals with physical and mental disabilities have the right under state law to rent, lease, or buy housing accommodations free from discrimination due to a disability.  (See Chapter 1 for definitions of disability; Cal. Civ. Code, ” 51, 54, subd.(b), and 54.1; Cal. Gov. Code, ” 12926, subds. (i) and (k), 12955 and 12955.3.)

Cal. Civil Code Section 54.1 states in pertinent part,

“(6) (A) It shall be deemed a denial of equal access to housing accommodations within the meaning of this subdivision for a person, firm, or corporation to refuse to lease or rent housing accommodations to an individual who is blind or visually impaired on the basis that the individual uses the services of a guide dog, an individual who is deaf or hard of hearing on the basis that the individual uses the services of a signal dog, or to an individual with any other disability on the basis that the individual uses the services of a service dog, or to refuse to permit such an individual who is blind or visually impaired to keep a guide dog, an individual who is deaf or hard of hearing to keep a signal dog, or an individual with any other disability to keep a service dog on the premises.”

(C) (i) As used in this subdivision, “guide dog” means a guide dog that was trained by a person licensed under Chapter 9.5 (commencing with Section 7200) of Division 3 of the Business and Professions Code or as defined in the regulations implementing Title III of the Americans with Disabilities Act of 1990 (Public Law 101-336).

(ii) As used in this subdivision, “signal dog” means a dog trained to alert an individual who is deaf or hard of hearing to intruders or sounds.

(iii) As used in this subdivision, “service dog” means a dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.

Federal Housing Laws that Protect Disabled Persons

Federal disability laws and regulations also apply to this situation. The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of race or color, religion, sex, national origin, familial status, or disability.

The Fair Housing Act prohibits discrimination on the basis of disability in all types of housing transactions. The Act defines persons with a disability to mean those individuals with mental or physical impairments that substantially limit one or more major life activities. The term mental or physical impairment may include conditions such as blindness, hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness.  The term “major life activity” may include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, or working. The Fair Housing Act also protects persons who have a record of such an impairment, or are regarded as having such an impairment.

Current users of illegal controlled substances, persons convicted for illegal manufacture or distribution of a controlled substance, sex offenders, and juvenile offenders are not considered “disabled” under the Fair Housing Act, by virtue of that status. The Fair Housing Act affords no protections to individuals with or without disabilities who present a direct threat to the persons or property of others. Determining whether someone poses such a direct threat must be made on an individualized basis, however, and cannot be based on general assumptions or speculation about the nature of a disability.

42 U.S.C. Section 3604(f) states in pertinent part that “as made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful—

(1)   To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—

(A)   that buyer or renter,

(B)   a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C)   any person associated with that buyer or renter.

It shall be unlawful to

(2)   To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—

(A)   that person; or

(B)   a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C)   any person associated with that person.

(3) For purposes of this subsection, discrimination includes—

(A)   a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.

(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or

Note that the language of the federal statute uses the term “handicap,”   Pursuant to 42 U.S. Code Section 3602 (h)

(h) “Handicap” means, with respect to a person—

(1)   a physical or mental impairment which substantially limits one or more of such person’s major life activities,

(2)    a record of having such an impairment, or

(3)   being regarded as having such an impairment . . . “

What is a “reasonable accommodation” for purposes of the Act that a landlord has to provide to a disabled person?

A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. The Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.

To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.

Are there any instances when a provider can deny a request for a reasonable accommodation without violating the Act?

Yes. A housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. In addition, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider’s operations. The term is “reasonable accommodation,” not “every accommodation.”

The determination of undue financial and administrative burden must be made on a case-by-case basis involving various factors, such as the cost of the requested accommodation, the financial resources of the provider, the benefits that the accommodation would provide to the requester, and the availability of alternative accommodations that would effectively meet the requester’s disability-related needs.

When a housing provider refuses a requested accommodation because it is not reasonable, the provider should discuss with the requester whether there is an alternative accommodation that would effectively address the requester’s disability-related needs without a fundamental alteration to the provider’s operations and without imposing an undue financial and administrative burden. If an alternative accommodation would effectively meet the requester’s disability-related needs and is reasonable, the provider must grant it.

An interactive process in which the housing provider and the requester discuss the requester’s disability-related need for the requested accommodation and possible alternative accommodations is helpful to all concerned because it often results in an effective accommodation for the requester that does not pose an undue financial and administrative burden for the provider.

What Will Happen to California After Trump’s Exit From Paris Accord?

Governor Jerry Brown has vowed to (spend your money to) continue building his own international climate movement. (Justin Sullivan/Getty Images)

As President Trump announced the U.S. would leave the Paris climate accord, California’s political leaders quickly declared that the state would step up on the international stage.

“He’s wrong on the science,” said California Governor Jerry Brown in a statement. “Totally wrong. California will resist this misguided and insane course of action. Trump is AWOL but California is on the field, ready for battle.”

Governor Brown vowed to continue building his own international climate movement. Around 170 jurisdictions, including states, provinces and cities around the world have signed onto Brown’s Under2 MOU, which means they’ve agreed to cut emissions by 2050.

Governor Brown is heading to China next week to hold climate meetings with many of the signatories. He also announced an alliance today with the governors of Washington and New York, looking to convene states that are committed to upholding the Paris accord.

What will that agreement accomplish? And what does the U.S. exit from the Paris agreement mean for California’s climate policies? We asked Michael Wara, Associate Professor of Law at Stanford University.

Does Governor Brown’s climate agreement have any teeth?

It’s a voluntary pledge. There’s no climate police that are going to come and knock on the State of California’s door if the state fails to meet its commitment.

But I think it’s important to recognize that the same thing is true for nation states that are parties to the Paris agreement. The Paris agreement commitments are voluntary and the only thing that’s mandatory about Paris is the reporting obligations of state. They have to say what they actually end up doing.

So I think the Under2 MOU in a way establishes a very similar system but for states and other provinces that are interested in going further than their national governments will go.

It also creates kind of a system for sharing ideas and sharing what works. And in many ways you know that’s as important a contribution as the actual commitment. Because California has a long history dating from the 1950s inventing new ways to reduce air pollution. And one of the biggest benefits we can provide as a state is to share that expertise with the rest of the world.

Do you think California’s efforts will calm nerves on the international stage after President’s Trump speech?

Unfortunately, I don’t think California can help fix the problem that President Trump is going to create by withdrawing from the Paris agreement. The U.S. is in the process of doing serious
damage to its credibility as a partner and as an ally. I don’t think that the other nation states are going to act differently in the Paris Agreement context because of California.

California’s core climate policies, like renewable energy goals and clean car regulations, are state-level policies, so they won’t be affected by President Trump’s move. But what else might be at risk?

So the place where this might matter – and I think it remains to be seen – is in terms of California’s international efforts on climate that look more treaty-like. Like efforts to connect our cap-and-trade program with other cap-and-trade programs that are in Canada and to accept internationally based carbon offsets into our cap-and-trade market.

These kinds of policies that look a little bit like foreign affairs get more risky from a legal perspective when they’re out of line with what the State Department wants. There have been issues in the past with California taking a different position than the State Department and being forced by the Supreme Court to step back from that position because it was interfering with the U.S. policy.