Davis Sterling? Can't find.. Please help.. if possible.

Started by NicoleO1 • 14 replies • 1698 views

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NicoleO1 (California)
Posts: 181

Posted:

We recently have come into a couple of similar situations. We have had two owners who have moved out of our building and have rented their units.

Most recently we found the owner of one of the rented units in the pool with her child. While we are all certain this can't be allowed. I am unable to find the exact information we need to proces this complaint. In addition to this units owners using the pool, she was caught conducting herself in not a hygenic manner rinsing out one of her bags she brought to the pool etc. this is an issue our board is going to process but I an searching regarding the issue of the use of facilities if does not live on site. Could she say she wss visiting her tenant? If so her tenant was still not with her so in reality it still against our rules.

Please advise. many thanks.

RichardP13 (California)
Posts: 1,767

Posted:

Nicole

There is no such rule in Davis-Stirling. Whether they are onsite or offsite, they are still owners. Try and fine them, good luck with that in court.

NicoleO1 (California)
Posts: 181

Posted:

No need to be sarcastic. and what makes you think this is a court case? that was not necessary.

KerryL1 (California)
Posts: 14,550

Posted:

Hi Nicole, Here's the opinion from davis-stirling.com, the CA attorneys who discuss the HOA legislation of that name:

"When owners lease their units to tenants, they transfer their common area rights to their tenants. (Liebler v. Point Loma.) As a result, absentee owners do not have a right to common area keys. There are valid reasons for such restrictions. The first is security. The more keys in circulation, the less secure the building becomes. The other reason is facility usage. If both owners and tenants have access to facilities, it increases the load on those facilities. Accordingly, associations may limit access by limiting the distribution of keys."

Read more: Common Area Rights http://www.davis-stirling.com/MainMenu/MainIndex/CommonAreaKeys/tabid/1637/Default.aspx#ixzz36cuyixfL
from Davis-Stirling.com by Adams Kessler PLC.

Note the above is those attorneys' opinion based on case law. It does not seem to be an actual part of the Davis-Stirling legislation since no statute # is cited.

You're on the board, Nicole, right? I'd have the Board or your PM write a letter to the owner reminding her that she may not use your amenities unless accompanied by her tenant. But I'm surprised your own documents are silent on this matter.

Our Rules & Regs state that any guests must be accompanied.. Our CC&Rs and Bylaws and Rules & Regs all say that owners relinquish their rights to common area amenities when they rent out their units.

But we've never deactivated their fobs so that they can't have access to the gym, pool etc., as we have no problem.

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By NicoleO1 on 07/05/2014 1:26 PM
No need to be sarcastic. and what makes you think this is a court case? that was not necessary.

It wasn't sarcasm, it was based on personal experience.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By NicoleO1 on 07/05/2014 12:55 PM

In addition to this units owners using the pool, she was caught conducting herself in not a hygenic manner rinsing out one of her bags she brought to the pool etc.

You did not state the age of the child but I cannot help thinking that she was rinsing out a diaper bag. Yuck! Fecal matter in the water is a cause of polio and other diseases. I do not think that you would have been over-reacting if you had immediately closed the pool and had it cleaned. You should not only have sought a judgment against the owner for your added costs but you should also seek an injunction to prohibit her from doing it again.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By KerryL1 on 07/05/2014 1:29 PM

"When owners lease their units to tenants, they transfer their common area rights to their tenants. (Liebler v. Point Loma.) As a result, absentee owners do not have a right to common area keys. There are valid reasons for such restrictions. The first is security. The more keys in circulation, the less secure the building becomes. The other reason is facility usage. If both owners and tenants have access to facilities, it increases the load on those facilities. Accordingly, associations may limit access by limiting the distribution of keys."

Note the above is those attorneys' opinion based on case law. It does not seem to be an actual part of the Davis-Stirling legislation since no statute # is cited.

Most people do not realize that statutes make up only a tiny fraction of our laws. The rest is common law, a.k.a. case law, which is just as enforceable as a statute.

FYI, statutes take precedence over common law and are often enacted when a legislature disagrees with the courts.

NicoleO1 (California)
Posts: 181

Posted:

Actually it was one of those reusable shopping bags.. so we have NO idea what was in it.
Pool Service will be billed accordingly and assessed.

KerryL1 (California)
Posts: 14,550

Posted:

Thanks, Larry, for the useful information! Some posters get the davis-stirling website mixed up with the actual Davis-Stirling legislation, included, I'm embarrassed to say, a member of our board!

Nicole, what did pool service do? And will you assess this owner for whatever that extra service was? Do you have something in your documents that say items should not be rinsed out in the pools?? We do not, but I'v never seen such an activity in the 9-1/2 years I've lived in my pool-view unit.

PitA1
Posts: 222

Posted:

check your covenants for the 'easement and usage section' re: owners - guests - family - renters

the pool issue would be a matter for the authority having jurisdiction over the pool operational permit - be careful, you may actually get proper response, eg. closure of the pool pending total disinfection taking DAYS

ps. The CDC considers diapers and 'swimmies' to be, literally:

"FECAL TEABAGS"

see: http://www.davis-stirling.com/tabid/1825/Default.aspx

my suggested rule:

'No incontinent person may enter the swimming pool regardless of whether any protective device is worn as such devices are ineffective.'

NpS (Pennsylvania)
Posts: 4,216

Posted:

Kerry and Richard referenced the Liebler case. But Liebler is different than your situation. In Liebler, the HOA had adopted 2 specific rules:
1. Non-resident owners cannot have access keys to common areas.
2. The rights to the unit are indivisible from the rights to the common area. In other words, the landlord cannot rent the unit and keep the use of the common area to himself.
Liebler violated both rules after they had been in place for years. The HOA fined him. Liebler sued. The court ruled that the HOA's rules were reasonable and within the authority of the HOA. But remember - the rules were in place when the violations occurred.

According to your description Nicole, you don't have specific rules in place now. Your first step should be to establish rules.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

I think, NpS I asked Nicole if the restriction about owner non-occupants being not being able to use common area amenities unless accompanied by a resident are in her docs. I don't think she answered. I'll take a look at Liebler tomorrow.

GlenL (Ohio)
Posts: 5,491

Posted:

Nicole, lost somewhere on my backup hard drives is an lease addendum from a VA HOA, it is a document that the HOA requires be signed by both owner and tenant and filed with the HOA. Among some of it's features is that the owner cannot use the common areas while the unit is rented and my particular favorite which allows the HOA to collect past due assessments from the tenant and the owner has to give them credit as if they paid in full. For example rent is $999.00 per month and the HOA collects $300.00 of it, the renter would then pay the owner $699.00 and the owner would have to accept it as payment in full. As always when adding something like this, I would suggest running it past the HOA's attorney to make sure it meets all legal requirements.

P.S. There was a poster here a year or two ago who lived in a HOA and had rental property a mile or so away in a COA. She was highly incensed because the COA told her she couldn't bring her trash to the COA and dump it, because she was billed for trash pickup at her HOA.

Studies show that 5 out of 4 people have problems with fractions

NpS (Pennsylvania)
Posts: 4,216

Posted:

Glen
The clause you are talking about is called Assignments of Rents. It's fairly common in mortgages and other RE related debts.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

OK, NpS, I read Liebler, well, I skimmed it and your understanding of it seems correct: If the HOA is permitted to establish rules about access to the common area amenities and does make such rules, absentee owners may not use those amenities nor have keys for them.

So, Nicole, Your Board needs to make such a rule, as NpS suggests, and I think with the help of your HOA attorney. While you're at it, make a rule giving the Board the right to suspend privileges for residents who break pool rules (are given due process) or for being delinquent in dues. Is suggest these because most of your posts seem to be involved with issue around your pool or tiny 4-person spa. As you know, in CA making rules is pretty easy.

What do you think, Nicole?

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