Understanding and Resolving Common Area Conflicts in HOAs

Navigating Common Area Disputes in HOAs: A Comprehensive Guide for Homeowners

Living in a homeowners association (HOA) community comes with numerous benefits, but it can also present unique challenges, particularly when it comes to common area disputes. At LS Carlson Law, we've handled countless cases involving these complex issues, and we're here to provide you with expert guidance on how to navigate them effectively.

Understanding Common Areas in HOAs

Before delving into disputes, it's crucial to understand what constitutes a common area. In HOA communities, common areas are shared spaces that fall under the association's responsibility for maintenance and repair. These can include:

Green belts and landscaped areas
Swimming pools and recreational facilities
Roofs in condominium complexes
Shared walls and pipes in multi-unit buildings
Parking lots and walkways

The association's Covenants, Conditions, and Restrictions (CC&Rs) typically outline the specific common areas and the HOA's obligations regarding their upkeep. Understanding these documents is the first step in addressing any common area dispute.

Types of Common Area Disputes

Common area disputes can take various forms, each with its own set of challenges. Here are some of the most frequent issues we encounter:

Maintenance and Repair Negligence: This occurs when the HOA fails to properly maintain common areas, leading to deterioration or damage to individual properties. For example, a poorly maintained slope could lead to erosion issues affecting nearby homes.

Unclear Boundaries: Disputes can arise when there's ambiguity about where individual property ends and common areas begin. This is particularly common with landscaping or fencing issues.

Nuisance Complaints: Sometimes, the use of common areas can lead to nuisance issues. A prime example is the recent surge in pickleball popularity, which has led to noise complaints in many communities.

Improper Use of Common Areas: Conflicts can occur when homeowners use common areas in ways that violate HOA rules, such as setting up permanent structures in shared spaces.

Financial Disputes: Disagreements over how association funds are used for common area maintenance can lead to significant conflicts.

The Impact of Common Area Disputes

Common area disputes can have far-reaching consequences for homeowners and the community at large:

Property Value: Well-maintained common areas contribute to higher property values. Conversely, neglected or improperly managed common areas can decrease home values.

Quality of Life: Disputes over common areas can significantly impact residents' enjoyment of their homes and community.

Financial Implications: Unresolved disputes may lead to special assessments or increased HOA dues to address neglected issues.

Community Harmony: Ongoing conflicts can create tension among neighbors and erode the sense of community within the HOA.

Steps to Address Common Area Disputes

If you're facing a common area dispute in your HOA, follow these steps to protect your rights and work towards a resolution:

1. Document the Issue
   Start by thoroughly documenting the problem. Take photos, videos, and notes about the issue, including dates and times. If there's property damage, consider having a professional assess and document it.

2. Review Governing Documents
   Carefully review your HOA's CC&Rs, bylaws, and any rules and regulations. Understanding your rights and the HOA's obligations is crucial in addressing the dispute effectively.

3. Communicate with the Board
   Initiate communication with your HOA board in writing. Clearly explain the issue, reference relevant sections of the governing documents, and propose potential solutions. Remember to remain calm and factual in your communication.

4. Request Informal Dispute Resolution (IDR)
   In California, homeowners have the right to request an Informal Dispute Resolution meeting with the board. This can be an effective way to address issues before escalating to legal action.

5. Consider Professional Assistance
   If initial attempts at resolution fail, it may be time to consult with an experienced HOA attorney. At LS Carlson Law, we can provide expert guidance on your rights and the best course of action for your specific situation.

Legal Considerations in Common Area Disputes

When dealing with common area disputes, it's important to understand the legal framework that governs HOAs:

Fiduciary Duty: HOA boards have a fiduciary duty to maintain and repair common areas. Failure to do so can be grounds for legal action.

Davis-Stirling Act: In California, this act provides specific guidelines for HOA governance, including how common areas should be managed.

Negligence Claims: If an HOA's failure to maintain common areas results in damage or injury, they may be liable for negligence.

Contract Law: The CC&Rs form a contract between homeowners and the HOA. Violations of these terms can be addressed through contract law principles.

Case Study: The Pickleball Dilemma

To illustrate the complexities of common area disputes, let's consider a recent trend: the rise of pickleball in HOA communities. While popular, pickleball courts can lead to noise complaints and disputes over common area usage.

In addressing such issues, HOAs must balance the interests of pickleball enthusiasts with those of residents seeking peace and quiet. Solutions might include:

Establishing specific hours for pickleball play
Installing noise-reduction equipment
Relocating courts to less residential areas
Amending CC&Rs to address new recreational facilities

This example highlights the need for HOAs to be proactive and flexible in managing common areas as community needs evolve.

Preventing Common Area Disputes

While not all disputes can be avoided, there are steps HOAs and homeowners can take to minimize conflicts:

Regular Maintenance: HOAs should have a robust maintenance schedule for all common areas.

Clear Communication: Boards should regularly update homeowners on common area issues and planned projects.

Transparent Financials: Providing clear financial reports can help homeowners understand how their dues are being used for common area upkeep.

Community Involvement: Encouraging homeowner participation in board meetings and committees can foster a sense of shared responsibility for common areas.

Conclusion: Empowering Homeowners in Common Area Disputes

Common area disputes in HOAs can be complex and frustrating, but they don't have to escalate into prolonged conflicts. By understanding your rights, documenting issues, and following proper procedures, you can effectively address these challenges.

Remember, you're not alone in navigating these waters. At LS Carlson Law, we have extensive experience in HOA law and are committed to protecting homeowners' rights. Our team has successfully resolved countless common area disputes, ensuring that HOAs fulfill their obligations to the community.

If you're facing a common area dispute in your HOA, don't hesitate to seek professional legal guidance. With the right approach and expert support, you can protect your property rights and contribute to a harmonious community environment.

By staying informed, engaged, and proactive, you can play a crucial role in ensuring that your HOA's common areas enhance rather than detract from your living experience. Remember, a well-managed HOA with properly maintained common areas not only improves your quality of life but also protects and potentially increases your property value.

Bad HOA Podcast Episode Transcript on Common Area Disputes

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Welcome back to the show. Bad HOA is the topic that we focus on. Today I have Jenny back on the show. Jenny, welcome.

Bad HOA Contributor, Jenny Carlson

Hi, thank you for having me.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Thanks for being here. And Marty, our producer.

Bad HOA Producer & Contributor, Marty Vasquez

Fun to be back as usual. It's fun to have you back.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right, should I start with today's topic or should we do a recap, Marty? You are the producer, so you have the lead.

Bad HOA Producer & Contributor, Marty Vasquez

Well, I think let's just jump right into it. Let's first do a recap of the series. We are going over all the dispute types that people can encounter during a bad HOA. That's a lot to recap. Our first series was on the board member types, now we're in the dispute types. We're a little bit past the halfway point in terms of the amount of disputes that we have going on. I highly recommend people listen to the first few episodes of this because it's full of really good information. But today's topic is common area disputes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I particularly like common area disputes, not because they happen, but because they're very interesting. From a legal perspective, when you have a - well, first let me define common area. Let's start there before I jump right in. We'll start in the shallow end.

So, common area, what is it? It is a piece of property within the association that is overseen by the association. The association is responsible for the common area. Think of your home, your property. Typically, you are responsible for your property. You're responsible for the inside of your property. If it's a freestanding house, the roof, et cetera, but you might have a green belt that runs behind the property. Well, that is not your property, but it is association property. And so the association, by way of the CC&Rs, often has an obligation to maintain and repair the common area elements of a community.

Think greenbelt, think if you're in a condo, a common area roof. Meaning if there's a situation up there, the owner of the condo cannot just go up there and start fixing it. It's not theirs to fix. That makes sense. Pipes, common area pipes. So also think of a condo here, condo there. There's a wall though. And inside that wall, often there are pipes. And so those are often considered common area pipes. And so the association has the responsibility to repair and maintain those pipes.

Bad HOA Producer & Contributor, Marty Vasquez

That's interesting. I often forget condo and how the waters can get so much more muddied considering there are so many people under a single dwelling. And some is yours, some is mine, some is the HOA's.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If you want to talk about muddying waters, if you have bad CC&Rs that define common area poorly, then it becomes very challenging. And we see a lot of those cases.

Bad HOA Contributor, Jenny Carlson

And I feel like our most favorite common area is always the pool.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

The pool is a big one, but believe it or not, I think green belts, we tend to see the most disputes out of green belts. Why is that? Well, you have green belts that are, in California, part of a slope. So behind your house, there's a slope, it's a green belt, and it's supposed to be maintained by the association. Let's say the association fails to maintain it, and there's erosion, or they don't properly shore it up, and the green belt starts to deteriorate, and it compromises the integrity of the slope, and next thing you know, your house is falling into the ravine. That's a common area dispute. That's dicey. That's very dicey, that's a horrible situation. The homeowner there has a tremendous amount of recourse, but it's not a fun experience to go through.

You also have trees in the common area, you have root issues. So you have, again, a greenbelt next to a home, and all of a sudden the common area trees' roots are growing into the property, destroying property.

Bad HOA Producer & Contributor, Marty Vasquez

I would assume too, like even a reverse slope where the slope is coming towards your house and drainage.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Drainage is the next huge one. Even if it's sort of a reverse slope going into the property, or you just have a green belt with irrigation or sprinklers and those burst, and all of a sudden all of that excess water is going into your property. So common areas are really a lightning rod for HOA disputes.

Bad HOA Producer & Contributor, Marty Vasquez

Let's go to why they matter. Common area disputes and why it matters.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, it matters because of really two things. When you buy into an association, you're paying dues. And the association, a good association, is maintaining and repairing common area elements. And when they do their job, property values go up and your property remains intact. It's not at risk of any sort of damage or danger.

However, when an association fails to maintain a common area, it can be devastating. One, property values could go down because no one wants to see an ugly pool or a poorly maintained greenbelt that's just dying. So you have a fair market value issue, but you also have an actual damage issue.

Let's look at a roof, a common area roof. It is supposed to be maintained by the association. The association fails to do so. And next thing you know, your unit, there's water coming into it. And there's really nothing you can do there other than notify the association, tell them to repair it. And if they say no, or they refuse, or they delay, that becomes very problematic to you because your property is now in harm's way.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, that one's so tricky because of what we've talked about in earlier episodes, opening up the wall, and are the pipes yours? If a pipe bursts and your condo's filling with water, well, whose pipe is that? Is it my pipe? Is it the association's pipe? Meanwhile, your house is flooding, and the faster you can get that solved, the better everyone is, but those might not be your pipes to touch in the first place.

Bad HOA Contributor, Jenny Carlson

If you have a good HOA, look, I don't even know if you remember this, but when we first bought in San Pedro, our condo, we owned the house for maybe a week, and a pipe burst above the carport. That was the first issue. And we had a really good HOA. They helped us immediately. Homeowner's insurance was able to step in, and we were able to work it out. But it just shows you that if you have a good HOA, it can be very easy.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, it can be wonderful, and that's what you're paying for. You're paying for that peace of mind. And so it's like, OK, on the one side of the coin, I get it. I get why associations exist. But the other side, what we deal with, I mean, the show is called Bad HOA for a reason. I see all the horrific stories. And it's when the pipe bursts, destroys your vehicle.

Bad HOA Contributor, Jenny Carlson

Well, and that did happen in the same condo. Later, we had a tenant and the pipe burst above her. It was a huge hole in the wall.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I remember that. And so, you know, in that situation, an association will step in very quickly, make the repair, compensate you for the damage. If you're put out, let's say you have to live in an Airbnb while they restore the property back to its original condition, you're covered. The bad HOAs say, well, that's not on us, that's on you.

Bad HOA Contributor, Jenny Carlson

Or like you said, poorly written descriptions.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, that, yeah, it's sort of the ambiguity becomes a different issue altogether because, you know, you have some associations who just don't care. They're like, we're not dealing with it, we're not paying you, sorry you're dealing with it. And then you have other ones that say, well, based upon our interpretation of the CC&Rs, we don't owe you anything.

Bad HOA Contributor, Jenny Carlson

And that just shows the importance of how CC&Rs are written and how well they're written.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, CC&Rs are the foundation of everything that we do. That identifies the rights and obligations of all the parties. And the more articulate, the more precision within the CC&Rs, it just sidesteps so many problems.

Bad HOA Producer & Contributor, Marty Vasquez

You know, that's a really good point because before diving into all this, I always assumed that the CC&Rs were to control or maintain control of the homeowners, what they can and can't do. But in most situations, when you find disputes for what I've come to realize, is that it's also to make sure that the HOA abides by their obligations. I think that's, it's like the Bible.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, I think what you're getting at, and this is a misconception, and really the purpose of this show from day one has been to empower homeowners. Because there's this default mindset that where you go into an association and you just assume the association has all the power. You know, the pipe burst, your place gets flooded and you're screwed. Why? Because the association sent you a letter saying kick rocks. And so you just agree with that.

Bad HOA Producer & Contributor, Marty Vasquez

How many stories do you hear of, oh, I love my HOA. No one just comes up to you and say, my HOA is great. Usually you -

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, nobody who calls me ever says that.

Bad HOA Contributor, Jenny Carlson

They call you because it's not great.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I've never once gotten that call.

Bad HOA Producer & Contributor, Marty Vasquez

But even so, and I've heard it at least a half dozen times, oh, you meet someone, you go to their house, love your house, oh yeah, I just hate the HOA. Like no one, I've never heard, oh yeah, it's great, the HOA's wonderful, like who says that? It's kind of like Yelp. It's rare that anyone goes on Yelp, and they're saying, I'm just in love with this place. It's a place to foster just disdain and complaints.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, no, and I follow that. But again, switching it to the CC&Rs, you know, by educating homeowners, once they understand CC&Rs really is their power source, they have tremendous leverage. Now part of it is understanding what those rights are, going into the provisions, understanding, okay, how does this work? How am I protected by way of the CC&Rs? And then part two is always the leveraging it. How do you enforce? Because you can identify, okay, the HOA breached the CC&Rs, it was negligent, it's a dumpster fire, that's part one. But part two is, okay, now what do you do with that? How do you enforce your rights as a homeowner, which is another part of the show, of course.

Bad HOA Producer & Contributor, Marty Vasquez

Let's go into a few more common areas. There was, we had a, there was a, I want to just come up with a few more scenarios. We've got pools, and I'm assuming in CC&Rs, maybe it says this is how often we're going to heat the pool or the jacuzzi or whatever.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, some are very specific, some will lay it out, and other times it's just a repair and maintain standard. And so people say, well, what is that? What is repair and maintain? And typically that's set by a third party expert or some professional who says, okay, if you have a pool, you need to clean it once a week or twice a week or once every other month. I don't know, I'm not a pool guy. But the point is, if you can point to a third party and that third party can say, yeah, this is a pretty reasonable maintenance schedule, it's probably going to fly in California. It's where you don't have that expert or the association has never asked. They just, they have these obligations to maintain the pool, to maintain the tennis courts, to maintain the roof, and they just don't do so.

Bad HOA Producer & Contributor, Marty Vasquez

We had it in the CNBC episode where we reviewed CNBC's take on HOAs. There was a - I forgot the guy's name - it was the older gentleman, right? He just wanted to pet the puppies. He put his chair in the green belt. He put his chair - it was a bench to be sure we're getting accuracy - and it appeared, it did not say, that it was out. It looked like his front door was slightly, you could almost see his front door from the background, but maybe up further on, but it's definitely a condo association, but it's up in some sort of a garden area, and there was a bench there. So the big dispute was, well, this is a common area, even though it appeared to be just off the edge of his porch, but they - it was a nice old man. And all he wants to do is sit in his space and if I can quote this correct, eat his cookie and pet puppies. That's all he wanted in life. And there was a big dispute over that and I assume that was realistically just because of a common area. The area was a common area.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, so I mean how that would cut, you know, the common area is not for homeowners to encumber or to affix things or even put things, you know, it's not your area. Set up a permanent cabana at the pool. Correct, correct. Or the pavilion. And you know, you could be the sweetest guy on the planet, but that's not a defense, you know what I mean? Great, he had no malintent in doing it. But, you know, at the same time, it's pretty clear what the CC&Rs say. If they say you can use it for ingress, egress, for your enjoyment, okay, that's pretty clear. But to set up camp and put a bench... You probably run afoul of the CC&Rs.

Bad HOA Contributor, Jenny Carlson

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Even if you're the sweetest. You're Mr. Rogers. Being Mr. Rogers isn't a defense to violating the CC&Rs either. So it does cut both ways.

Bad HOA Producer & Contributor, Marty Vasquez

I want to talk about pickleball for a second because I've seen...

HOA Attorney & Podcast Host, Luke Carlson, Esq.

The new hot sport in California.

Bad HOA Contributor, Jenny Carlson

And Florida. Is it Florida too? Across the nation.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, this is sweeping.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I can see it in Florida. Florida makes a lot of sense to me.

Bad HOA Producer & Contributor, Marty Vasquez

Of course. Yeah. I mean that is probably a state - like national - it's a state sport now like the official state sport of Florida.

Bad HOA Contributor, Jenny Carlson

The outfits alone.

Bad HOA Producer & Contributor, Marty Vasquez

We have pickleball issues. Yeah, that's - there's a few times. I've seen this come up. We've seen it. It's pickleball issues, and I'm assuming it's because it's become so popular. It's because a lot of people are using it and there's probably a lot more ruckus that's happening on these courts. And you know, how often do you see in an association that tennis courts, they just sit there for, have sat there for years and you're lucky if a couple people play in a given year. Now pickleball, they put in pickleball courts and everyone starts to use the thing and then neighbors get mad and the noise increases.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, yeah, it's two things I think. I think doctors are benefiting from pickleball because they're seeing more injuries, so they have more business. It's just big table tennis. But a lot of people get injured with it and I think lawyers are seeing a lot of work come out of pickleball, believe it or not, because I never heard of pickleball at one point and then all of a sudden we were getting a lot of calls and the calls really circulated around this notion of nuisance and nuisance through noise, ongoing noise because they are quite loud and you know there are certain standards within the community that you have to meet. There's decibel levels and pickleball, for whatever reason, is extra annoying. It hits a decibel level, I suppose, maybe even above tennis. Some of the things that we've seen, it's louder than tennis.

Bad HOA Contributor, Jenny Carlson

I can tell you right now, there's four players versus... I guess there's tennis too. There's more excitement, I feel like, with pickleball.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, maybe there's more action. Maybe the ball hits the court more. Maybe there's just more utilization of it because it's a new sport.

Bad HOA Producer & Contributor, Marty Vasquez

It's because the barrier to entry is lower. I think that to get started, it requires less skill to get started versus tennis. It's more user-friendly.

Bad HOA Contributor, Jenny Carlson

It's become a social engagement, I feel like, more so than even tennis.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, it's like, you know, I think the 50s and 60s, they had bowling. That was a big sport back then, but now it's pickleball. It's the new social moment.

Bad HOA Producer & Contributor, Marty Vasquez

I mean, tennis had to have been popular at one point. Otherwise we wouldn't have so many tennis courts in these HOAs.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I agree. This is true. But now it is pickleball. But yeah, pickleball has become a huge nuisance, very problematic. And if it hits a certain level, there are things you can do about it.

Bad HOA Contributor, Jenny Carlson

There might be more language now in the CC&Rs, specifically related to pickleball.

Bad HOA Producer & Contributor, Marty Vasquez

If they adjust their CC&Rs to accommodate the pickleball issues.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Again, who's on the board? But here's the thing. You can't really contract around a nuisance. You can't say, we're going to allow excessive noise all the time, 24-7. You can't sidestep that liability. So yeah, you could try, sure, but I don't think it'd be successful long-term. I've never seen an association do that. I've never seen them try to contract around a nuisance situation, but yeah, if it's really causing a nuisance, I do believe a homeowner could enforce based upon that, that alone.

Bad HOA Producer & Contributor, Marty Vasquez

Staying with the pickleball theme, because we'll just turn this whole episode, cancel it where this is just going to be the pickleball episode, but it does lead into several different threads here. If an HOA decides we're going to put in pickleball, and they've been established for years and we're going to convert some of the tennis courts that don't get utilized to pickleball courts, would they update their CC&Rs? In standard practice, do they update their CC&Rs or should they update their CC&Rs to say, oh, we're going to maintain the pickleball courts this time, here's the open hours, here's what we're going to, this is the maintenance that we're going to supply, this is when the lights are going to be on. I mean, how detailed do these things get? Call me completely ignorant on these things.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Everything. It's a full spectrum. So you have associations that will just install a pickleball court and call it a day and say, okay, we installed it and take no sort of further steps to define sort of the homeowner's relationship to the pickleball court. And then you have other associations that really will define it. And normally it's not through the CC&Rs. They're not going to re-engineer the CC&Rs. What they might do is create a set of rules and regulations surrounding the Pickleball Court, which are enacted into the community.

Bad HOA Producer & Contributor, Marty Vasquez

If they do mess with the CC&Rs, if they amend them, do you have to vote on that as a homeowner?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Typically, there's a whole procedure to do that. You can't just do it willy-nilly. The Davis-Sterling Act becomes a relevant part of the analysis. You have bylaws that often impact how you approach that. So, it's not just an association is just amending left and right. It's a process.

Bad HOA Producer & Contributor, Marty Vasquez

It's much like amending the Constitution. Maybe not. Maybe not.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Maybe it's not that high of a standard, but, you know, there are hurdles to do it.

Bad HOA Producer & Contributor, Marty Vasquez

So. Interesting. Okay. We'll keep going. So, I think we've covered at least defining what the common area disputes are. Maybe a couple of examples of types. You know, it goes right to resolution steps. Again, we have a whole episode just on resolution, but I think it's worth touching them for people that have not listened to the podcast. We'll do a quick review, and we'll start off with the first one is document the issue.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, I almost think that the resolution steps, we should have like an acronym for it. Like it's like a stop, drop, and roll because it's always the same. This is true. I'll work on that because yeah, Listen, it's always document, document everything, video, pictures, emails, all of that is so impactful if you're going to enforce your rights.

Bad HOA Producer & Contributor, Marty Vasquez

Communicate via email. Oh my gosh.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Or memorialize via email. Yes. If you can master the art of memorializing conversations via email, you're already winning.

Bad HOA Producer & Contributor, Marty Vasquez

Define that though. Okay, so. We've touched that before, but that's a great. Break it down.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You have a conversation with the board president, or someone on the board, it doesn't have to be the board president, but certain things are agreed to in that conversation. You know, they say, hey, you know what, put up the fence, put up the fence, we're fine with that. Don't even worry about it. You don't need our approval. What you do is you send an email. Dear Ms. President, so lovely talking to you today. Just to confirm, yeah, just to confirm the conversation today, we've agreed that A, B, C, D, and E are fine. If this is unacceptable or is not accurate, please respond to me in writing. Toodles. I mean, that's impactful though. And if you notice at the end though, I guess this is part of the art of it, it's to put the burden on them to respond in writing if it's inaccurate. That's a very powerful sentence that you add because then really what you've done is said, hey, I think this is the situation, but I need written confirmation if I'm wrong. That has magnitude and impact.

Bad HOA Contributor, Jenny Carlson

Luke has mastered this because he does this with me at home, all day long. Will you remind me to do that? Because then it's now on me if he didn't do it, because I didn't remind him. It's a beautiful art.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, it's a very handy life hack.

Bad HOA Producer & Contributor, Marty Vasquez

Now, honestly, that is a really juicy tidbit, though, in terms of handling these types of situations. We need to trademark that.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah. Well, I'll look into it. Okay. Maybe you should write a book on that. Seriously. Next book. All right. So document the issue. Again, reviewing governing documents, always understand the power source, understand the provisions, understand really what rights maybe have been violated, where the association is crossing the line. If you have an understanding of that, you're already leveling up your position. So, review governing documents. Okay. Communicate with the board. Informally, as it should be known. Again, I suppose this is the olive branch portion of the dispute resolution process. Try to play nice to start. You don't need to be bombastic. You don't need to be overly emotional. If you can be as non-emotional as possible, that's always going to be a benefit. Because you don't want to be painted as the hyper-charged individual, because even if you have merit to what you're saying, it's going to be muddied by all the emotional, you're emotionally charged nature.

Bad HOA Contributor, Jenny Carlson

Yeah. Another good just general life hack.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That's a great life hack too. Yeah, just speak to the facts, present it and see what they say. If it goes south, that's fine, you can deal with that later. But at least when you're first presenting it, I think it needs to be very clinical.

Bad HOA Contributor, Jenny Carlson

Start with those intentions.

Bad HOA Producer & Contributor, Marty Vasquez

You know, the one thing that we might've skipped over that might be important, you tell me, is if you have damages that were caused by a slope potentially get a professional or third party to assess the damages on your behalf so you have it in writing or you have you've got someone can write cause in your favor not in your favor but just to determine cause and maybe that will land in your favor and second to the extent that there's damages what will it take in terms of compensation to remedy.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

No, documentation of damages is always important especially when we're dealing with property damage but again. And I guess be very careful with who you hire. Make sure that they're reputable, they're credentialed, you don't want to hire just some third party random contractor, for example. That could come back and bite you. So yeah, if you're going to do it, do it right, pay the extra money for the top-notch expert to come in.

Bad HOA Contributor, Jenny Carlson

With the proper credentials.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And anything they say, make sure you get it in writing. No verbal. Because that happens too. You know, we see a lot of clients who say, yeah, I have $100,000 in damage. I say, can I see the report? They go, no, no, no, they just came in and told me that. And so that's fine. And it's not that I don't believe them or doubt them, but it's not helpful to have a verbal.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I need something in writing. We need identification. Yeah, or even if it's handwritten, now I have something to work with, right? And we can always develop it and bolster it down the road, but put those things in writing. Yes, I agree, Marty. Okay. So we did Olive Branch. So document, review documents, olive branch, try to work with the association to start, and then what else do we have? That would have failed.

Bad HOA Producer & Contributor, Marty Vasquez

Okay, and then we have our if all else fails approach, which is in California requesting IDR.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, listen, if all fails, then you're really turning up the heat. But I guess the step before that is IDR. You know, so the olive branch approach, you're trying to approach the association in a very reasonable way, solution-focused. If they ignore you, stonewall you, you demand informal dispute resolution, and we talk about that a lot on the show, but I think it's such a powerful tool when it works. Now on the other side of it, it can be an absolute waste of time, especially if you're dealing with a tyrant or incompetent, which is what we talked about in our previous shows. But when IDR works, meaning you send a demand to the board requesting informal dispute resolution, solution, the concept there or the spirit there is the board will sit down with you face-to-face or over Zoom now and just discuss the dispute. And it could be as simple as sitting down with them and say, hey, when we spoke, you told me that I could put up the fence. I sent you this email, which confirmed, and now I got this violation notice. And it could just be an oversight. It could be something as, oh, you know what? We're so sorry. I'm sorry you had to come to IDR, but you're right. and that's a very rational board looking to solve a problem. Other times, it's not that. And when it's not that, then I think it really, you're really escalating the dispute at that point. And sometimes, listen, IDR doesn't even make sense because the people on the board are so awful. And I would imagine people watching this show, they might be dealing with some awful boards. So as much as we talk about IDR, I'm not saying it's always the right solution. Look at the DNA of the board, figure out who you're dealing with, and then use it accordingly.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, however, there is obviously a good faith argument that you've done everything in good faith and you can document and show that the board has operated in bad faith.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, sometimes the olive branch approach, meaning you send an email to somebody, you reach out to them.

Bad HOA Contributor, Jenny Carlson

You're reasonable, you stay out with the facts.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That in and of itself might show how reasonable you are, especially if the other side is bombastic.

Bad HOA Contributor, Jenny Carlson

If they're - and we've had success in our own HOA just being reasonable having a discussion and then the issue gets put to rest.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, correct even-keeled approach but again you know, it's not always the way it's not always the situation because you're dealing with human beings and Sometimes these human beings are unruly and if that's the case, then it's maybe time to kick them in the mouth Yeah, which is really the next step. That's where you consider speaking with a lawyer.

Bad HOA Producer & Contributor, Marty Vasquez

You've done everything, no one's working with you, it's just a toxic situation.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, and what's interesting about that too, you know, the question is, well, why does the lawyer make the difference? And first I will say that lawyer doesn't always make the difference. Lawyers might still face a ton of pushback and it might be a very bloody situation for a long time to get it resolved. But what we also see, though, is once the lawyer is involved and the lawyer sends some communication to the board, at that point, if the board has a lawyer, now their lawyer is involved. And sometimes that's the adult in the room that you need. And you're actually talking to a human being who looks at it and goes, oh, my God, you know what? I see what my client is doing. Let me intervene. Let me resolve it. And that's sort of the best case scenario. Yeah. And listen, a lot of people assume I don't like association attorneys. And I will say that there are some really awful ones out there. Some of them are just the worst of the worst. But some are fantastic. There are some really good association attorneys out there who actually just really want to protect the association. And they want to do what's right. And so you never know who you're going to get. It's always just somewhat random who you draw. But, you know, sometimes we're able to resolve things or an attorney is able to resolve things very quickly. Because the other side comes in, it's an adult, they're reasonable, you have a conversation, and you can put the thing to bed.

Bad HOA Producer & Contributor, Marty Vasquez

Well, you're not dealing with the, for lack of a better term, the non-professionals that did not go to school or get a degree in HOA management.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It's the adult in the room who understands fiduciary duty, who understand CC&Rs, who understands how these things are supposed to work. And that's a wonderful call to get. Alternatively, you know, Rambo shows up and now you're dealing with a Rambo attorney who is just scorched earth, which is fine. You can deal with that. There's methodologies around that, but it's always a breath of fresh air when you have another reasonable professional who comes in and has a clinical analysis and wants to do the right thing.

Bad HOA Contributor, Jenny Carlson

So perfect.

Bad HOA Producer & Contributor, Marty Vasquez

All right. Let's get into your favorite, which is a post we do this every episode is we find a relevant post on Reddit about the topic and so I found you another juicy one and you're pre-reading it which takes the fun out of it so Jenny so the idea is we go through the Reddit story Luke's going to hear it he's going to take give us take as an HOA attorney, and it's always fun to see his reaction. All right.

Bad HOA Contributor, Jenny Carlson

So exciting. OK. The HOA board is considering a rule to ban dogs from common areas in our pet-friendly complex. They've received complaints about owners not picking up after their dogs and are proposing that pets be walked only in areas around the complex. However, these areas lack grass, are full of foxtails, and are known to have coyotes. Alternatively, they suggest taking pets outside the complex, which could be a 10-minute walk for some residents.

Bad HOA Producer & Contributor, Marty Vasquez

What can I do to stop this? Okay before you answer this I Was I've never done this before but the comments on this were so fun That I I had to include them this one Marty. I know this is why I just happening I I had to add this in Because it was so unbelievable so you can go ahead and read that read these out loud. Yeah, no, absolutely.

Bad HOA Contributor, Jenny Carlson

That first one? That's fine, okay. Some places are actually doing dookie DNA to trace back to the criminal pooper.

Bad HOA Producer & Contributor, Marty Vasquez

Okay, and I thought that was a joke until I read the next comment. Go ahead.

Bad HOA Contributor, Jenny Carlson

This is actually a very good program. I lived in an apartment complex that did DNA dog testing in our grassy areas, went from disgusting poop everywhere to very, very clean. These fines were hefty, starting at $150 for the first offense. The complex used the profits to pay the fines or fines to pay for a big party the first year. That's not even written correctly. It was inexpensive to set up and pretty easy to monitor for the employees.

Bad HOA Producer & Contributor, Marty Vasquez

Okay, which was interesting. I'm like, oh my god, this is the This is the this is the world we live in but just for the fun of it You got to read the last one because this is how this is how people work

Bad HOA Contributor, Jenny Carlson

Okay The workaround is to give a poop sample from a friend's dog who doesn't live at the complex and then your dog can poop with reckless abandon.

Bad HOA Producer & Contributor, Marty Vasquez

This is the this is the world we live in dad some decorum to this, okay

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I need to elevate this, yeah, we are in the gutter right now with this, but it's very interesting what people find.

Bad HOA Producer & Contributor, Marty Vasquez

This is reality. No, I just thought this was, this is reality and the solutions to these problems are so mind boggling and that people are even finding workarounds for this is just, it just puts you in the sense of this stuff is reckless and out of control.

Bad HOA Contributor, Jenny Carlson

Well, is this in California? Not that it matters, but I'm just curious.

Bad HOA Producer & Contributor, Marty Vasquez

I don't know.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I mean, I'll analyze it from a California perspective. Of course. This is the most insane scenario I've ever seen. Well, you know, I like it because it shows you just how sticky tacky and nuanced this area gets. You know, it's so just invasive in some ways and you know, they have real problems. They're looking at solutions. The solutions really don't fit the community. There's pushback, but some are happy, some are not. So, you know, sometimes when we call these things a dumpster fire, this is a prime example as to why these things are dumpster fires. Because there's not necessarily a simple solution. There's not something that's just out of the box. We'll solve it.

Bad HOA Contributor, Jenny Carlson

I mean, we're talking dog DNA here.

Bad HOA Producer & Contributor, Marty Vasquez

I know, it's unbelievable.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, that's actually, I haven't seen that before.

Bad HOA Producer & Contributor, Marty Vasquez

I was curious, that's why I had to include that. I'm like, have you seen this? I have not.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

This is wild. So getting to the crux of it, though, I understand the Reddit user's situation. I get it. It's going to be a huge hassle if they change the dog situation. What can I do to stop this? Well, I think the first and foremost, this almost seems like a political strategy that would need to be implemented. Meaning, if you can get a very large majority of the homeowners to take a hardline stance against this, that could be very powerful. I mean, I don't know if you throw a lawyer in the middle of this necessarily. But, you know, the association, at least in California, I mean, they have the authority, you've actually voted them into an authority to make decisions on behalf of the community. And courts do not like to necessarily micromanage boards and their decisions. And so legally speaking, I don't know if that would be the right attack. I think it would be better to frame this out politically and get a very large group of homeowners who say, no, this is absurd. This is going to have a drastic impact on my life. In fact, I moved in here originally because it was pet friendly. And now it's becoming the opposite of that.

Bad HOA Contributor, Jenny Carlson

Well, and there are reasonable solutions like providing the dog bags at the park, things like that, that we see in our neighborhood, where it just makes it that much easier to clean up your dog's mess.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Agreed. And so this might be a situation where someone just threw out an idea and it wasn't the best idea. It was an idea or it was a position that they took that maybe wasn't as well thought out. So that's where if you can get community involvement, if you can get even a petition together, I think that becomes very powerful because it could be the case that the board just doesn't understand that what they're proposing has massive impact to life and to quality of life. Because if you're now having to go outside of the community, 10 minutes, it becomes this whole thing. Okay. Maybe they didn't observe that, that was a blind spot. Or maybe they're just -

Bad HOA Contributor, Jenny Carlson

So the first thing that you should do would be what? Just contact your board?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well no, before you contact the board, I would try to put together some sort of, for lack of better word like a community action committee. That's not a real, that's not like, I just made that up in my head. You know, but the idea... Round some neighbors up that are on your side. Exactly. You know, if you want to go so far, by the way, these are people who walk dogs. So if you walk your dog, you run into somebody, you could talk to them and you could sort of start accruing interest in your project. That might be a way to do it because they're already outside in the neighborhood anyway. You don't necessarily have to go door to door. But that would be my starting point. Get a number of dog owners who disagree with this, and then you start working the process. Then you maybe bring it to the board. Maybe then you demand IDR. But you do it collectively, not just you.

Bad HOA Contributor, Jenny Carlson

Yeah. Power in numbers.

Bad HOA Producer & Contributor, Marty Vasquez

But that might still only represent 10% of the entire community, the dog owners.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You might get steamrolled on this. Yeah, you might.

Bad HOA Contributor, Jenny Carlson

That's always a possibility.

Bad HOA Producer & Contributor, Marty Vasquez

Okay, last little question on this one though, do the CC&Rs ever, have you ever seen, do they define ever like pet areas or where the pets are designated to go in the...

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, I've seen that.

Bad HOA Producer & Contributor, Marty Vasquez

Oh, you have seen that. Okay. So, assuming they do have that provision in the CC&R, they have to get that amended and that would be a huge...

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That could be a huge task, but...

Bad HOA Producer & Contributor, Marty Vasquez

It's unlikely to change unless you have a very, unless a lot of homeowners are going to want to see that change happen.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct. And if this was a pet-friendly community to begin with, I would have to imagine that there's a number, a majority of homeowners who own pets. I mean, to label it pet-friendly, I would think -

Bad HOA Producer & Contributor, Marty Vasquez

I would assume if they're putting it in their CC&Rs, it's, I think that's a good indication of it that being pet-friendly.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes. So that seems, I mean, this seems like a straight political play. Yeah. That would be my approach. Bring it to the board, power in numbers, and try to get it through that way.

Bad HOA Contributor, Jenny Carlson

Love it.

Bad HOA Producer & Contributor, Marty Vasquez

Perfect.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Cool? Yeah. All right. Okay. That was an interesting one, but thank you, Marty. Hey.

Bad HOA Contributor, Jenny Carlson

He's always trying to spice this up. I know.

Bad HOA Producer & Contributor, Marty Vasquez

Hey, we can't have the same thing over and over again.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I agree. No, I liked it. I thought it was good. And it was funny.

Bad HOA Producer & Contributor, Marty Vasquez

All right. So let's tease the next episode.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right. Next episode we have, oh, negligence. Wow. Negligence takes so many forms. That's a big one.

Bad HOA Producer & Contributor, Marty Vasquez

I mean, we cover, I feel like we cover a little bit. They're so intertwined, some of these disputes, that we cover a little bit of each.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, I mean, even looking at common area, sometimes the common area is falling apart because of negligence. So negligence as a cause of action or as a failure of the board, it gets into all areas. So it's a big topic, it's a good one.

Bad HOA Producer & Contributor, Marty Vasquez

Don't answer this question, tease it, but I am curious, is negligence sometimes cause for lack of funds?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So if we're teasing it, all right, next episode, we'll address that and more. Thank you guys for watching. Hopefully you feel more empowered and we'll see you soon.