Rules Enforcement Banned During Declared Emergencies
Laurie C. Keating, Esq. Fiore, Racobs & Powers, A PLC
Enforcing governing documents is one of the primary purposes of any association and, contrary to disgruntled homeowners’ opinions, is aimed at maintaining property values and neighborhood consistency. However, associations may now be prohibited from enforcing portions of their governing documents during a declared state of emergency.
Newly enacted Civil Code Section 5875 prohibits an association from pursuing enforcement actions for governing document violations during a declared state or local emergency if the nature of the emergency makes it unsafe or impossible for the homeowner to fi x or prevent the violation. The only exception to this prohibition is enforcement efforts related to nonpayment of assessments. That exception makes sense considering associations still need to continue paying for insurance premiums, management services, and maintenance costs even if there is an emergency.
What this statute lacks is specifi cs on what emergency would trigger this law and which violations would be exempt from enforcement efforts. This law was enacted in response to COVID-19. Surprisingly, in California the COVID-19 State of Emergency lasted through February 28, 2023. The biggest governing document violation during COVID-19 was nonpayment of assessments, particularly at the outset when layoffs were rampant and renters stopped paying rent. Other than assessment delinquencies, which were specifi cally carved-out of this new law, there are very few violations that
12 July | August 2023
would appear to fall under this prohibition during the COVID-19 pandemic. While it seems like nuisance violations went up, it would not be unsafe or impossible for a resident to cease their nuisance behavior.
When legislators were discussing this law, the California State Assembly provided the example of a homeowners association not being able to enforce parking restrictions during a fl ood. The Assembly in its analysis reasoned that during a fl ood it may be unsafe or impossible for a resident to comply with a requirement to not park a vehicle on a driveway for more than 72 hours. In that example, ideally common sense would have discouraged most associations from citing anyone even in the absence of a legal prohibition. Aside from fl oods, the biggest emergency that California has been facing for many years is drought, but that was already covered by Civil Code Section 4735, which limits certain landscaping enforcement efforts.
It will be interesting to see how Civil Code Section 5875 plays out over the next few years, as it is currently unclear what specifi c situations it would apply to.
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