While the term “HOA attorney” (or for that matter, “HOA lawyer”) is neither an official designation from any governing body or organization, nor a recognized area of specialty requiring additional education, testing, and licensing (as the case with a patent or estate planning attorney), some attorneys who are intimately familiar with California’s expansive HOA laws use that term to differentiate themselves from other, more generalized “real estate attorneys.” Put simply, an HOA attorney is a lawyer whose primary practice focus is representing individual homeowners and/or HOAs (although I include the word “and” here, it’s unlikely that an HOA attorney will represent both homeowners and HOAs because of the conflicts of interest that would arise). Typically, therefore, you’ll likely see HOA attorneys represent either homeowners or HOAs, but not both. Our firm, Kushner Carlson, PC, represents homeowners in all manner of disputes involving HOAs.

Now, as I said above, describing oneself as an “HOA attorney” doesn’t require any special licensing or education. That means that any lawyer licensed to practice law in California can call him/herself an “HOA attorney.” So, because all lawyers can adopt the term for themselves, homeowners who are actually in need of an HOA attorney have to have a way of separating the wheat from the chaff. They have to be able to differentiate between true HOA attorneys—those of us with substantial knowledge and experience of the laws governing HOAs, as well as understanding of the kind of disputes that occur most frequently—and the more general practitioners who have merely adopted that moniker, but whom otherwise lack the necessary experience and expertise.

Let’s start with the governing law.

Governing Law/Governing HOAs

HOAs in California are largely governed by the Davis-Stirling Act, a series of statutes located in the Civil Code (although there are sections of other laws, such as those found in the Corporations Code, that also apply to HOAs). The Davis-Stirling Act not only lays out the ground rules regarding how HOAs may be formed, governed, and dissolved, but the Act also establishes requirements that must be met before a party may sue or be entitled to an award of attorneys’ fees and costs.

Likewise, each HOA in California is further governed by its own set of “governing documents,” the most important of which is the Covenants, Conditions, and Restrictions (“CC&Rs”). The CC&Rs describe not only the rights and obligations that each member (i.e., homeowner) owes to the other members of the HOA, but also the mutual rights and obligations between the other homeowners and the HOA itself. An HOA’s CC&Rs are, therefore, intended to address a wide scope of governance type issues ranging from the maintenance of the common areas and property use restrictions (e.g., setbacks, view rights, neighborhood “character,” architectural guidelines, etc.), to enforcement powers, the raising and spending of revenues (e.g., assessments), and dispute resolution. There are other governing documents (e.g., articles, bylaws, etc., rules & regulations, etc.) that an HOA attorney must also be familiar with, but it’s not necessary for purposes of this blog to go into too much detail about those documents.

In addition, like all corporations that you’re probably familiar with, an HOA is governed by a board of directors elected by its members. And just like other corporations, the board of directors of an HOA is responsible for managing its affairs and conducting the association’s business. To accomplish the task of managing and conducting the affairs and business of an HOA, its board of directors typically enjoys many of the same powers that any corporation’s board of directors enjoys, such as:

• Creating committees and appointing people to sit on those committees.
• Calling and running membership meetings.
• Setting elections and selecting election inspectors.
• Adopting and enforcing architectural guidelines and rules.
• Filing lawsuits to protect the HOA’s rights.
• Defending against lawsuits filed against the HOA.
• Entering into contracts (with, for example, vendors, contractors, management companies, etc.).
• Hiring employees (e.g., handymen, landscapers, etc.).
• Hiring accountants, attorneys, architects, and other professionals to guide the board.
• Levying and collecting assessments.
• Maintaining, improving, and/or repairing the HOA’s common areas.
• Preparing and managing budgets.

Because an HOA’s board of directors is tasked with so many important obligations, the law also imposes on the board, as well as on each individual board member (also called a director), a heightened duty of care and loyalty, often referred to as a “fiduciary duty.” This fiduciary duty requires an HOA’s board of directors to act reasonably in carrying out the affairs of the association. An HOA’s board of directors must also treat all members of the HOAs fairly (i.e., an HOA can’t enforce certain rules against certain HOA members, but not others), without showing favoritism to certain members (e.g., to directors sitting on the board).

Given the sheer volume of specific laws aimed at HOA governance/disputes in California, it stands to reason that a “real” HOA attorney must not only be intimately familiar with the substance, requirements, and rights contained in the Davis-Stirling Act (which is an entire world unto itself), but a practiced HOA attorney must also have expertise in how California courts have interpreted that Act. In addition, an experienced HOA attorney will have a long history of reviewing CC&Rs, a keen understanding of various parts of the Corporations Code, and be experienced guiding clients through alternative dispute resolution (most commonly in the HOA context, mediation).

Needless to say, less knowledgeable attorneys who hold themselves out as “HOA attorneys” will very likely find themselves grossly outmatched and outgunned.

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TYPES OF DISPUTES


A good HOA can play an important role in maintaining your property values and ensuring your quiet enjoyment of your property. A bad HOA can decrease the value of your home, force you to spend a lot of money, and turn your life upside down. Good HOAs are priceless; bad ones can be a nightmare for a homeowner. If you feel your rights are being violated by your HOA, Kushner Carlson can help. And fortunately, when it comes to HOA disputes, the prevailing parties are, in most cases that we handle, entitled to reimbursement for their attorneys’ fees and costs upon prevailing.

We protect homeowners located throughout the State of California from abusive or negligent HOAs in a variety of different types of disputes, including:

FAILURE TO REPAIR

CC&R VIOLATIONS

HARASSMENT / DISCRIMINATION

NEIGHBOR DISPUTES

COMMON AREA DISPUTES

SELECTIVE ENFORCEMENT

NEGLIGENCE

DAVIS-STIRLING ACT VIOLATIONS

TESTIMONIALS


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ABOUT US


Kushner Carlson is proud to offer our clients a dynamic and effective legal team with top academic and professional credentials. Our attorneys have extensive experience in HOA disputes involving single-family and multi-unit properties throughout California. In addition to having a hard-earned reputation for being strategically aggressive during the pendency of our litigation cases, our lawyers are also well known for their superior writing and innovative, client-centered approach. In short, the trial attorneys at Kushner Carlson excel because they are among the best at what they do. It really is that simple.

OUR TEAM


DOMINIC M. CARUCCI

Partner

Paul Deese

Partner

Audrey Smith

Partner

Divya Bhavsar

Associate

James Calkins

Associate

Sara Etemadi

Associate

William Bergeron

Associate

Ryan Davies

Associate

Shelby Daws

Associate

James Decker

Associate

Ramy Galal

Associate

Kyle Kasparek

Associate

Shane Micheil

Associate

Kirk Pearson

Associate

Griffin Schindler

Associate

Phong Tran

Associate

Justin Walley

Associate

Chris Xouleis

Associate

Alexandria Zuccolotto

Associate

OUR FOUNDERS


Michael Kushner was born and raised in Long Beach, California. He obtained his undergraduate degree from UC Berkeley, where he was inducted into Phi Beta Kappa during his third year and graduated with Highest Distinction the following year. Mr. Kushner then attended law school at UCLA. After moving to Orange County, Mr. Kushner honed his skills at two prestigious law firms before striking out on his own. From there, Mr. Kushner quickly earned a reputation as a formidable and skilled trial and transactional lawyer in the areas of business and real estate law, as well as an entertaining and informative lecturer on various trending topics.

Raised in Florida, where he began surfing competitively at a young age, Luke Carlson moved to California to obtain his education at Chapman University, where he graduated with honors. Prior to Mr. Carlson’s graduation from law school in 2009, he began working at Mr. Kushner’s law firm, where Mr. Carlson demonstrated not only a remarkable degree of business acumen, but also vast knowledge and expertise in the action sports industry. Mr. Kushner and Mr. Carlson complemented each other’s skills so well, that they decided to team up to form Kushner Carlson.

Since then, Kushner Carlson has grown at an impressive pace, transforming itself from a boutique law firm to a mid-sized powerhouse staffed with the industry’s sharpest legal minds. Today, the Kushner Carlson brand is synonymous with strategically aggressive representation and pioneering innovative legal technology.

And we’re just getting started.

CONTACT


ADDRESS

85 Enterprise, Suite 310
Aliso Viejo, CA 92656

PHONE

949.421.3030

KUSHNER CARLSON

85 Enterprise, Suite 310, Aliso Viejo, CA

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