Filling an Empty Seat

QUESTION. If a board member resigns one full year before the end of her term, is her empty seat automatically open for election or does the board appoint her replacement?

RESPONSE: I know Clint Eastwood had trouble filling an empty chair three years ago but it’s fairly routine for boards of directors. The mechanism depends on two things: (i) how the vacancy was created and (ii) the language in your governing documents.

Recall. Vacancies caused by the membership’s removal of a director (a recall) cannot be filled by the board. It must be filled by the membership at a special election (Corp. Code §7224(a)). That should be done on the same ballot as the recall.

Death & Resignation. Vacancies created by death or resignation of a director are filled by approval of a majority of the remaining directors, unless the governing documents expressly provide otherwise. (Corp. Code §7224(a), Robert’s Rules, 11th ed., p. 467.) Most bylaws follow the Corporations Code and give the board the authority to fill the seat.

Failure to Appoint. If the board fails or refuses to fill an empty position, the membership can call for a special election. (Corp. Code §7224(b).) The process is initiated by filing a petition with the board for a special meeting to fill the seat.

RECOMMENDATION: Check your articles of incorporation and bylaws to see if they address the subject. If they are silent, then follow the Corporations Code as described above.


: Concerning special assessments, our CC&Rs state we need a majority of the total voting power of the association to pass an assessment. Yet, Davis-Stirling clearly states that assessments pass with a majority of a quorum. Does the statute trump our CC&Rs?

RESPONSE: Whenever there is a conflict between the law and governing documents, the law controls unless it specifically defers to the governing documents. See “Hierarchy of Documents” and “Rules of Interpretation.” In this case, the Davis-Stirling Act controls. That means a majority of a quorum of the membership can pass a special assessment.


I am pleased to announce that on Monday we launched a new and improved version of the award-winning website.

Mobile Friendly. The new website will work on any device with a web browser–from desktops to tablets to smartphones. Because it’s designed to mold to the screen size of any portable device, the website is fully responsive, mobile- and tablet-friendly. As a result, the old mobile app I created (the first in our industry) has been deactivated. We may design a new one with other features at a later date and will let everyone know when that happens.

More Features. The new programming also gives us the ability to build more features into the website. Those are now under development and will be announced as they are completed.

ABCs of HOAs

I will join a panel of experts in a program hosted by HOA Organizers. The event is for board members and will cover new laws affecting associations.

In addition, we will cover insurance issues, collections and foreclosures, management procedures and responsibilities, and deferred maintenance/budgeting. There will be time for Q&A with each session.

This is a free event with a catered lunch and raffle prizes (including an iPad). The program will be held Saturday December 12, 2014 from 11:00 a.m. to 3:30 p.m. at the beautiful Olympic Collection, 11301 Olympic Blvd #204, Los Angeles 90064.

Please RSVP or fax (818) 286-9434 or phone (818) 778-3331 (Kristal).


Pepper Spray #1
. Nice people may feel reluctant to use pepper spray when they aren’t sure if they are actually in jeopardy. And, at the moment they need to use it, they may fumble it out of lack of experience and nerves. A good thing to have on hand in such a situation is a good, loud whistle, like a metal referee’s whistle. These are readily available on the internet and in sporting goods stores and everyone knows how to blow a whistle. No fear of hurting an innocent person with it, either. -Susan K.

Pepper Spray #2. Employees should use wasp/hornet spray. It is not expelled as a spray but as a strong stream, as far as 20 to 25 feet away, preventing a potential threat from getting close to them. With pepper spray, you run the risk of affecting others from the spray, especially in any breeze. The wasp/hornet spray shoots a very strong stream and is more highly effective than pepper spray. This requires no certification, no legal mumble jumble, no questionable passion restrictions, just an effective anti-threat weapon that is much more effective than pepper spray. -Don C.

RESPONSE: Good grief! Don’t take out a bad guy with a product designed to kill wasps. The lawsuit that followed would be very expensive. That’s like setting bear traps to catch burglars. The burglar would never enter your house again but you might be spending the rest of your life sharing a cell with him in prison. Only use products approved by the state for self-defense. If you want an alternative to pepper spray, Susan K’s whistle works.

Pepper Spray #3. Good newsletter as always. Just wanted to feedback on the pepper spray. I am a deputy with the San Francisco Sheriff’s Department and have spent a great amount of time in court as an expert witness with regard to DNA and ID systems, We also cover use of force a lot in our department. You are dead on about having a policy and best to have an actual “Use of Force” policy. A written policy and staff training gives the association solid footing in any legal action that may follow.  -Joseph L.

RESPONSE: I edited Joseph’s response due to space limitations. He pointed out a number of issues for associations to consider when using pepper spray. If boards want to arm their employees, they should work closely with a security consultant and legal counsel to fashion appropriate policies.

Adrian Adams, Esq.
A Professional Law Corporation

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Pepper Spray for Employees

QUESTION: Our association has a large onsite staff. A police officer attended our staff meeting because of recent security incidents affecting our employees. He said we should issue pepper spray to them for their safety. I am concerned about liability.

ANSWER: While it’s appropriate to be concerned about liability, it should not outweigh the safety of your employees. If there is a foreseeable risk of harm to your staff and the association does nothing, you could have a bigger liability problem if an employee is attacked and injured.

Proper Product. If you issue pepper spray to employees, make sure you get the right product. Do not get tear gas. Unless you know what to purchase, you should buy from a California store rather than the internet since different states have different laws. A California store will carry the proper type of pepper spray. Also, don’t buy
the key chain size; get something larger.

Proper Training. To protect against potential liability, get your employees certified to use it. Like any weapon, the first step is education and training. You should have a written policy and instruct your employees that pepper spray is only for self-defense, not for apprehending criminals (or subduing unruly board members).

Proper Control. Keep the product locked up when not in use to keep it out of the reach of children and unauthorized adults. You should keep a log where employees check the product in and out with each shift. Otherwise, it may disappear.

RECOMMENDATION: Talk to legal counsel and a security consultant to see if other measures can be taken to protect employees without issuing pepper spray. If you need the product, they can assist with guidelines and proper training.

Thank you to attorney Wayne Louvier for researching this issue.


: When a non-member is invited to talk to the community about projects or other items of interest, should he/she speak before the meeting is called to order? Since HOA meetings are for members only, shouldn’t the board ask any person who is not a member to leave?

ANSWER: You’re misreading the statute. It does not prohibit non-members from attending meetings. Rather, it confers rights on members to attend. (Civ. Code §4925(a).) Others can attend at the pleasure of the board.

Spouses, Staff & Others. Although boards can prohibit non-members, that is not the industry standard. It would be unusual to prohibit managers, support staff, and legal counsel since they assist boards in carrying out their duties. In addition to managers and staff, most boards allow spouses and renters to attend meetings and speak during open forum.

Agenda. There is nothing wrong with putting guest speakers on the agenda, calling the meeting to order and recording in the minutes that the person spoke on a particular issue. It may be important to show the board’s due diligence. It also helps keep the membership informed. The Secretary should not transcribe the speech in the minutes–only record who spoke and the topic.

RECOMMENDATION: Don’t tie your hands with a strict prohibition on non-members. First, boards need the assistance of staff and others for their meetings. Second, spouses and renters aren’t all bad. Some of them are actually interested in the well-being of the community and can be helpful.


Attorney Laurie Poole (Peters & Freedman) and I will speak at a luncheon hosted by CAI on new laws affecting associations. We will highlight:

  • Artificial turf and clotheslines
  • New VA & FHA disclosures
  • New pool requirements
  • New cases on short-term rentals, hard-surface floor installations, and more

Everyone is invited to the chapter’s largest event of the year. It will be held Friday, November 20, 2015 at 11:30 a.m. at the Palm Valley Country Club, 39205 Palm Valley Drive, Palm Desert, CA 92211. Please RSVP online or call 760-341-0559.


Our Inland Empire and Los Angeles offices are busy and each needs another lawyer.

I am looking for attorneys with 2-5 years experience. Litigation experience is a plus.

If you know good candidates, please contact me by email or by phone at 800-464-2817.


Going Paperless #1. Do you think clients have something to say about their management companies going paperless? -Richard L.

RESPONSE: As I noted in the article. “[L]et your clients know in case they object. If they object, you can ship the paper minutes to them for safekeeping.” You have another option. If your a board is unhappy with their management company going paperless, you can always hire one that keeps records in a closet off the bathroom. I understand some government officials utilize similar data storage arrangements.

Going Paperless #2. What about paperless information dissemination? We have a website where we store all pertinent HOA documents including past board and committee minutes and agendas. If we switch to electronic transmission, is that an acceptable method of information delivery? -Sheila C.

RESPONSE: Sorry, you can’t use electronic notice unless members agree to it. Everyone under 18 already has an electronic device surgically implanted at birth but older folks are a little behind when it comes to such things. Hence, the Davis-Stirling Act requires you to kill trees and send paper via snail mail unless owners agree to electronic notification.

Going Paperless #3. Paperless is great but what about those folks that do not have a computer or access to the web? -A.H.

RESPONSE: Even though the management company is paperless, notices and disclosures are printed and delivered to members in paper form.

Going Paperless #4. You state that all corporate records may be kept in non-paper form. Does this include election materials? What about reserve studies, contracts for services, invoices from vendors, utility bills, etc.? -Hank J.

RESPONSE: Election materials must be held by the Election Inspector for one year to allow for election challenges. (Civ. Code §5125.) Once twelve months have passed, the materials can be transferred to the association for disposal or storage. As for reserve studies, contracts for services, invoices from vendors, utility bills, etc., all can be scanned and stored digitally. NOTE: Paper files should not be thrown in the dumpster–they should be shredded so as to protect confidential information.

Adrian Adams, Esq.
A Professional Law Corporation

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Going Paperless

QUESTION: Our company is going paperless. All of our signed meeting minutes are scanned and uploaded to hard drives and then to the association’s website for viewing. Can we get rid of the original signed paper minutes?

ANSWER: Yes you can. First, however, let your clients know in case they object. If they object, you can ship the paper minutes to them for safekeeping.

Electronic Records. The Corporations Code specifically allows all corporate records to be kept in non-paper form.

[M]inutes and other books and records shall be kept…in any other form capable of being converted into clearly legible tangible form… When minutes and other books and records are kept in a form capable of being converted into clearly legible paper form…[they] shall be…accepted…to the same extent as an original paper record. (Corp. Code §8320(b).)

Secure Backup. Because data can be lost from hard drive crashes, stolen computers, fires, etc., which could put you out of business and get you sued, I recommend redundant, multiple location, backup of your digital records so your company can retrieve the latest data in the event of a disaster.

That means your data should be stored in multiple offsite locations. Companies such as Carbonite, IronMountain, and CompuVault will automatically backup your hard drives each night over the internet to at least two secure facilities. The sites should be in different regions or states so if a disaster hits one site (earthquake, flood, fire, etc.), the other site is unaffected. Following is an illustration from a company called “Hybrid Data Storage”:

RECOMMENDATION: I took my law firm paperless five years ago and the benefits are significant. If management companies have not already done so, they should seriously consider entering the 21st Century.

Thank you to attorney Wayne Louvier for researching this issue.


I am pleased to announce that attorney Patrick Nichols joined our firm.

A dynamic litigator, Patrick will be in our litigation department handling architectural disputes, rules enforcement, insurance defense, restraining orders, alternative dispute resolution, and all litigation related matters for our clients.

. Before joining Adams Stirling, Patrick gained valuable litigation experience in state and federal courts including California’s Court of Appeals where he drafted, argued, and won numerous motions for summary judgment, demurrers, and motions to compel. Patrick conducted and defended countless depositions of percipient and expert witnesses and drafted dispositive motions in personal injury, professional negligence and government liability cases.

Employment Litigation. Patrick also has important employment law experience he gained from a busy employment law boutique where he performed all aspects of case management and client counseling plus writ petitions to the Court of Appeals. Patrick’s strong background in labor and employment law gives him a unique litigation perspective when advising clients on such matters.

Education. Patrick earned his Juris Doctor degree from Pepperdine University School of Law where he competed on a competition trial team that achieved high scores over a dozen other schools. Patrick earned a Bachelor of Arts in Business Administration from Principia College where he was elected student body treasurer and participated in varsity football and rugby. He also studied abroad at the Kyoto Institute of Culture and Language in Kyoto, Japan.

Legal Services. To learn more about our legal services, contact us.


Pythons #1
. Pythons and other constrictors do not actually “crush” their prey (though the end result is much the same). Rather, they wrap their body around their potential dinner and when it exhales they take up the slack and tighten their grip. When the prey can no longer inhale, it becomes bereft of life. -Jerry F.

RESPONSE: That is comforting to know. If I ever find myself in that situation, I will keep it in mind.

Python #2. I read with great interest your comments on prohibiting pythons as pets. But what about prohibiting pythons as homeowners? -Ronald J.

RESPONSE: The slithering kind are easy to deal with, just call Animal Control. The two-legged kind cost HOAs a lot of aggravation and money, Animal Control won’t touch them, and they squeeze the life out of board members and managers alike.


NOTE: There were too many clothesline responses to print and some had to be edited for space limitations.

Clotheslines #1. People are walking around in public displaying their underwear, thongs, bras, and even the body parts these items were once intended to cover; so, I don’t understand why letter writers find underwear drying on a clothesline offensive. Just sayin’. -Stephany Y.

Clotheslines #2. “I’m sure that’s what the legislature had in mind.” Objection: Assumes facts not in evidence. What minds? -Joe S.

Clotheslines #3. I believe the feedback over clothesline is funny, how many people do you really think are going to use clothesline in the big picture? I say very few, and so what if they do? I grew up with clothesline and never gave them a second thought. It seems people are just so uptight about everything these days. Be glad we live in America and I hope no one gets too offended by the sight of a families laundry hanging on the line saving energy. My guess is 99.9% of American’s are too lazy to use them. -Ron R.

Clotheslines #4. I am thankful that the governor signed the bill. Our condo just passed a rule saying that we could use drying racks as long as it was in a discreet location and underwear was not visible. They actually use the word “underwear.” -Thomas C.

Clotheslines #5. Always enjoy your newsletter. Why don’t people get more involved in politics so these stupid laws don’t get passed in the first place? The people passing these laws hear one person and JUMP to act. They don’t look beyond the end of their nose to see what it will do to others. -Theresa S.

Adrian Adams, Esq.
A Professional Law Corporation

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Pythons as Pets

QUESTION: If our CC&Rs don’t restrict it, can an owner have a python as a pet? A member found a python that got loose in their garage and the owner still has another one in his unit.

ANSWER: Yes, pythons can be restricted, even if your CC&Rs are silent on the issue.

Domesticated Animals. Normally, CC&Rs have language limiting pets to usual domesticated cats, dogs, fish and birds. A python is neither usual nor domesticated. Most people consider them quite scary. If you were rummaging around in your garage, which would you rather be surprised by–a puppy or a 10-foot snake? As a “pet” you can’t pet them like a kitten, you can’t let them slither around the property unattended, and if you value your life you can never sleep with them. Feeding them is not for the squeamish, not to mention the terrified mice.

Can Be Deadly. Pythons can grow to 23 feet and weigh up 250 pounds. Even though they are not venomous, they can deliver a nasty bite. They are generally docile, until they’re not. A large python can easily kill a person. Last month, one nearly crushed to death a pet store owner before police were able to pry it off him. It was wrapped around his head, neck, and torso. In 2013, two young brothers were strangled in their sleep by a python. In 2009, a python crushed the life out of a two-year-old girl while she slept in her crib. When a python is hungry, people and pets are not safe. Pythons cannot be trained as service animals and if someone claims it’s a “therapy” animal, the person truly needs therapy.

RECOMMENDATION: Owners can give their snakes cute names (Monty comes to mind) but they remain creepy and deadly and associations can ban them if they so choose. A prohibition can be done by amending CC&Rs or by a simple rule change.


Last week’s newsletter dealt with preserving the confidentiality of delinquent owners by using the Assessor’s Parcel Number (“APN”) in board minutes to conceal their identity.

Delinquencies #1. Our assessor’s office has a website in which property addresses can be located using the parcel number. Does this destroy confidentiality? -Norma G.

RESPONSE: Using an APN is nothing more than a fig leaf but it’s the level of confidentiality sufficient to satisfy the state. By statute, “The board shall maintain the confidentiality of the owner or owners of the separate interest by identifying the matter in the minutes by the parcel number of the property, rather than the name of the owner or owners.” (Civ. Code §5705(c).) I don’t know why the legislature bothered since the President listens to our telephone conversations and activists leak everything to the internet.

Delinquencies #2. Our HOA assigns an account number to each homeowner and uses this number for liens. If a parcel number is used, homeowners can call assessor’s office to get the owner’s name. This number is also used in the minutes. This avoids any embarrassment to the homeowners and remains confidential. -Chris S.

RESPONSE: I like your common sense approach. It technically violates the statute but I doubt anyone would object–not even a judge.

Delinquencies #3. To clarify, in open session the board states that parcel “x” is delinquent by $500 and parcel “y” is delinquent by $2000 and votes to place a lien on both properties. Then, records it in minutes that members can view. In executive session, the board votes to foreclose on parcel “z” which is delinquent by $10,000. Are you saying the minutes available to members should state that in executive session, the board voted to foreclose on parcel “z” whose delinquency was $10,000? -Paul C.

RESPONSE: Yes. Just to be clear, when it comes to foreclosures, the board votes in executive session and records full and complete information using the person’s name and address in executive session minutes, which are NOT available for members to view. The board must ALSO include an abbreviated version using APN numbers in the next open session minutes, which members are allowed to view. (Civ. Code §5705(c).)


Clotheslines #1. Great newsletter as always! Just wondering though, what does the “ongoing drought” mentioned in Clothesline #5 question have to do with drying clothes on clotheslines? Are people hoping the water will drip off and irrigate the landscape? -Jan B.

RESPONSE: I’m sure that’s what the legislature had in mind.

Clotheslines #2. Thanks so much for the chuckles. Marijuana leaves on a clothesline is something I hadn’t thought of. And I have met some of those judges with a screw loose. -Patricia G.

Clotheslines #3. I have been a manager for 25 years and I do not understand how this law has passed. The law will bring down property values. The property I manage has two laundry rooms if residents can’t afford $2.50 to do their laundry they can’t afford to live in the community. Why change the law for a few people that complain about the cost. I can’t imagine looking down on a neighbors backyard and seeing a clothes line with their undergarments. Letting residents hang clothes is going to waste more water since our association pays for the water residents use. It appears no one is thinking straight about this subject. -Karen E.

RESPONSE: Speaking of property values, affluent communities with unfenced backyards facing golf courses will be most affected. Members and guests now get to play on expensive courses with breathtaking views of everyone’s underwear. Our tax dollars at work.

Adrian Adams, Esq.
A Professional Law Corporation

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Delinquency Reports

QUESTION: Where should delinquency reports and discussing delinquencies be held, in an open meeting or executive session? For privacy reasons, I think it should be in executive session.

ANSWER: Discussion of delinquencies should should be done in both open and closed sessions of the board.

Open Session. Delinquency reports should be in open sessions because members have a right to know the finances of their association. It allows them to monitor whether or not the board is taking care of business. Failure by the board to collect assessments means budget shortfalls, deferred maintenance, special assessments, and/or increased dues for the membership. If I were a member, I would want to know if my association had a $500 delinquency problem or a $50,000 problem.

Moreover, the Davis-Stirling Act requires that the decision to record a lien for delinquent assessments be made in an open meeting and recorded in the minutes of that meeting prior to recording the lien. (Civ. Code §5673.) Confidentiality is maintained by referencing units/lots by their assessor’s parcel number.

Executive Session. Delinquency reports should also be on the agenda for executive session meetings. Once an owner is delinquent by at least $1,800 or the delinquency is at least twelve months old, the board can initiate foreclosure proceedings. (Civ. Code §5720(b)(2).) The vote must be held in executive session and recorded in the minutes of the next open meeting. As with liens, boards maintain confidentiality by using the assessor’s parcel number to identify the property. (Civ. Code §5705(c).)


: Recently, when posting notice of an upcoming board meeting
, the agenda for that meeting was not included. Our president said it was okay because the agenda was emailed. Is that correct?

ANSWER: Sorry, it’s not correct. Starting January 1, 2008, board meeting agendas must be posted along with the notice of meeting. (Civ. Code §4920.) In the alternative, the notice and agenda can be delivered to everyone. (Civ. Code §4920.)

Email. Emailing the agenda is an option only if the recipients consent in writing to receiving notice via email. (Civ. Code §4040(a)(2).)

RECOMMENDATION: Sending agendas and notices by email makes a lot more sense than only posting in the common areas. Emails reach more people, especially those who are out of town or live elsewhere. Associations that want to save money and keep members better informed should get owners’ email addresses and written consent to send notices. By “notices” I mean more than just board meetings. There are a great many disclosures and notices that associations must give members each year.


Senator Stirling. Thank you to everyone for the many notes of congratulations and kind words about Senator/Judge Stirling joining me as a partner in our firm. They are much appreciated. -Adrian


Clotheslines #1. I interpret the clothesline bill to indicate you still can’t drape laundry over your banister or balcony. But if you suspend a line from those items, you can hang your laundry from it, correct? -Jean S.

RESPONSE: If you mean suspend a line between balcony posts–no. That’s no different than hanging laundry over the railing. It’s unsightly. Putting up a line in your backyard is different because it is generally not visible to others.

Clotheslines #2. While a balcony does not qualify as a d
rying rack or a clothesline, meaning I cannot hang my clothes over the balcony, I am pretty sure the law allows me to put a drying rack on my balcony, correct? -Casey R.

RESPONSE: The statute specifically states it “applies only to backyards that are designated for the exclusive use of the owner.” (Civ. Code §4750.10(d)(3).) That means associations can restrict drying racks from balconies. However, if balcony railings are constructed such that a drying rack is not visible, associations shouldn’t care if you put one on the balcony. It’s when they are visible that it creates a problem.

Clotheslines #3. If the unit only has an exclusive use balcony, can the resident put a clothes line apparatus on their balcony? -Ron R.

RESPONSE: No, not without association permission.

Clotheslines #4. You said the statute allows for reasonable restrictions on clotheslines. What is a reasonable restriction? -J.D.

RESPONSE: One that comes to mind is requiring that clothes be removed from lines each day by dusk. Leaving them overnight can be a nuisance if a wind causes the clothes to flap around and make a lot of noise keeping neighbors awake at night. Another one is to limit clotheslines to clothes only, i.e., they can’t be used for drying marijuana leaves.

Clotheslines #5. With the ongoing drought are clotheslines now allowed in condo complexes regardless of the rules? -Judy R.

RESPONSE: If a condominium complex has exclusive use backyards, it applies. What if it only has balconies and patios? Owners with balconies clearly can’t hang clotheslines. However, boards could allow drying racks if they wanted. Patios are a bit of an unknown. I could see a judge deeming ground floor patios to be the equivalent of a backyard and allow clotheslines. If the patio is fenced, nobody will see the clothesline except those living above it. If the patios are open (no fencing), I don’t see a court jamming it down everyone’s throats and ordering an association to allow clotheslines. I have to qualify that by saying there are judges out there with a screw loose so I can’t guarantee it.

Adrian Adams, Esq.
A Professional Law Corporation

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Announcement re Adams Stirling

I am very pleased to announce that former Senator, Assemblyman, Judge and author of the Davis-Stirling Act Lawrence W. Stirling has joined me as a partner in our firm.

Public Service. After serving in the U.S. Army, Mr. Stirling attended Western States University School of Law where he earned his juris doctorate. Larry’s history of distinguished service in the public sector spans several decades. It started with four terms in the Assembly where he authored over 200 pieces of legislation.

Senator/Judge. Larry Stirling’s commitment to “Quality in Government” led to his 1988 election to the State Senate where he continued his distinguished service to constituents. The following year, Senator Stirling was appointed to the bench by Governor George Deukmejian where he served as a judge for the next fourteen years.

New Partnership. Senator Stirling is the epitome of integrity, trust, and reliability. In recognition of his public service and contributions to our industry, I am honored to call Larry Stirling a partner and change my firm’s name to Adams Stirling PLC.

The Future. Our partnership will play a significant role in our firm’s continued growth. This past year we added three talented attorneys to our firm and staffed two new offices. In the coming year, we will open a staffed office in Northern California, launch new educational programs, and give the website a major update which will open new capabilities as we service the legal needs of common interest developments throughout California.

To send a note to Senator Stirling, email us at


Governor Brown signed into law a bill that voids any prohibitions associations might have against clotheslines.

Backyards Only. Members can now install clotheslines and drying racks in their exclusive use backyards. AB 1448 defines a “clothesline” to include a cord, rope, or wire from which laundered items may be hung to dry. Fortunately, the bill specifically prohibits a balcony, railing, awning, or other part of a structure from qualifying a clothesline.

Reasonable Restrictions. The bill allows associations to adopt reasonable restrictions on clotheslines and drying racks. It defines “reasonable restriction” as one that does not significantly increase the cost of using a clothesline or drying rack. Nobody knows what “reasonable” and “significant” means yet. Legislators left that for the courts to decide.

RECOMMENDATION: The statute goes into effect January 1, 2016. If boards want to regulate clotheslines when the statute takes effect, they should start the 30-day rule adoption process by November 30. At some point, associations will also need to amend their CC&Rs to remove clothesline prohibitions.


Attorney Privileged Info. As a board member, it is extremely hard to keep one’s mouth shut when another board member is misquoting the attorney’s letter in an open meeting and relaying only the portions of the letter that he feels support his stance. This has happened on a number of occasions. -Jan H.

RESPONSE: I often think how nice it would be if we could require a personality test before people move into an association. If they don’t pass, they can’t move in. Dysfunctional people could still be newscasters, just not board members.

Ham Radios. I received a number of lengthy responses defending ham radio antennas and forwarded them to CAI. They thought opposition to the bills was “sheer hogwash.” One response has typewritten, single spaced and three pages long. Who knew there was such passion in the ham radio world? -Adrian Adams

Artificial Turf. The Rams vs. Steelers September game pyrotechnics caused a fire on the turf. Smoke can be toxic! Clean-up caused a 30-minute game delay. Do we really want this on HOA property? -Joan B.

Drones. Not to beat a dead drone, but SkyPan International, a Chicago aerial photography company that films real estate, is facing a $1.9 million fine from the FAA. They had 65 violations but that equates to about $30,000 per violation. Here is the full story: $1.9 million fine for filming with a drone. -Finn M.

Adrian Adams, Esq.
Adams Stirling
Professional Law Corporation

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Executive Session Legal Issues

QUESTION: Do homeowners have the right to know what questions are being asked by the board of legal counsel that result in HOA funds being used to pay the attorney? Some owners want to be aware of the issues so we can be more educated.

ANSWER: I applaud your desire to become more educated. However, the board cannot disclose the information since it would breach the attorney-client privilege and create potential problems for the association.

Potential Litigation. For example, if an issue came before the board which could result in the association being sued, the directors would need to speak to legal counsel to find out how best to handle the situation. After analyzing the matter, the HOA’s attorney tells the board the association could lose if they were sued.

Confidentiality Lost. If the board’s question and the attorney’s answer were reported to curious members, it would spread it all over the community. Board members have a fiduciary duty to act in the best interests of the association and hold things in confidence, members do not. The information would make its way to the aggrieved party who would be encouraged to file suit since the HOA’s attorney believes he would win.

Case Law. The courts addressed this issue and made the following observation:

It is no secret that crowds cannot keep them. Unlike directors, the residents owed no fiduciary duties to one another and may have been willing to waive or breach the attorney-client privilege for reasons unrelated to the best interests of the association. . . . “[o]ne can only imagine the sleepless nights an attorney and the Board of Directors may incur if privileged information is placed in the hands of hundreds of homeowners who may not all have the same goals in mind.” (Smith v. Laguna Sur Villas.)

RECOMMENDATION: If homeowners have a burning desire to know what legal counsel is advising the board, they should get themselves elected to the board. That gives them the opportunity to be in the loop and make decisions for the membership.  For a more complete discussion of this issue, see Attorney-Client Privilege.

One of the purposes of an association is to protect property values. In addition to maintenance, HOAs regulate what people do with their property, i.e., no boats parked on the front lawn, paint your house, don’t install large unsightly antennas, etc.

Bills in Congress. Unfortunately, there are bills in congress that would eliminate HOA restrictions on ham radio masts and towers.

Negative Impact. Robert Browning, a radio enthusiast with a General Class Amateur Radio license, examined the impact of the bills and believes voiding HOA restrictions would be detrimental to communities. He made the following observations:

  1. Electronics Interference. Ham operators can use either small towers or large ones. Small towers are less unsightly but require higher wattage to be effective. This can interfere with the electronics of neighbors up to several hundred feet away.

  2. Property Values. If the ham operator installs a large tower so as to avoid interfering with his neighbor’s electronics, he creates an eyesore. The bigger the tower, the more unsightly it becomes, both from size and from all the cables needed for stability. The bigger the eyesore, the more it drives down property values.
  3. Safety Issues. Large towers, if not properly secured, can topple onto neighboring properties causing injuries and damage. Safety concerns by neighbors would further depress property values.

Public Interest. Some believe the public interest requires radio towers in HOAs for emergencies. Mr. Browning argues to the contrary. He points out that emergencies (wildfires, earthquakes, hurricanes, tornadoes) require ham operator to report to a particular location. Licensees who volunteer have ready-to-go radio kits called “go-bags” with portable radios, batteries, generators, portable masts and antennas. Thus, there is no need for radio towers in homeowners associations.

Needless Burden. Mr. Browning further observed that other emergency responders do not burden their neighbors with the tools of their trades. For example, paramedics and EMTs do not drive ambulances home, nor do police officers or tow truck drivers. In conclusion, the legislation is unduly burdensome and produces no true public benefit. To read Robert Browning’s report in its entirety, see his White Paper.

RECOMMENDATION: To protect their property values, readers should urge federal legislators to oppose ham radio legislation. CAI has made it easy to send an email to legislators by providing a link with prepared language. It takes only seconds to send. Click here to send an email.


. I was really excited to see your article on board member drones until I realized it had nothing to do with board members droning on and on at meetings! -David A.

Artificial Turf. Boards would be wise and fiscally prudent to consider the costs and environmental impact of artificial turf. It adds to the heat envelope. In the recent women’s soccer championship games in Edmonton, the temperature was in the 70’s but the temperature on the artificial turf was 125 degrees. Some turf in hot areas has turned grey and melted. Additionally, artificial turf is a petroleum-based product. -D. Wallace

Adrian Adams, Esq.

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Drones Revisited

I have really smart readers. A few pointed out an error in last week’s newsletter involving drones. This is one of them:

When it comes to drones, there are rules for hobbyists and rules for non-hobby activity. A board member filming the work on a roofing project for the purpose of inspection probably falls outside the boundaries of a hobbyist activity. It likely falls under civil operation and would require a section 333 exemption. -Melanie H.

Hobby Exemption. Melanie is correct. To fly a drone without registering it requires that it be flown strictly for hobby or recreational use. (Public Law 112-95 section 336.) The Federal Aviation Administration (FAA) has applied model aircraft guidelines to drones, which they classify as “unmanned aircraft systems.” (Interpretation of Special Rule for Model Aircraft.) A board member using a drone to inspect and film the HOA’s roofing company would likely be deemed a “business” purpose not recreational.

Business Purposes. FAA policy specifically excludes the use of unmanned aircraft systems for business purposes. (72 FR at 6690.) Business purposes are not limited to for-profit companies but would apply to non-profit associations as well. I know it seems silly but that means a board member flying his drone to document roof work for the association should get a section 333 exemption. As of September 22, 2015, the FAA had granted 1,658 such exemptions, mostly for aerial photography and surveying.

RECOMMENDATION: Under current FAA guidelines, associations should not use drones for business purposes such as inspecting common areas, monitoring vendors, documenting rules violations, etc. without first getting an exemption from the FAA.

Thank you to attorney Adam Jeffery for researching the regulations related to drones.


I am pleased to announce the hiring of attorney Adam Jeffery. Adam will work with our Inland Empire managing attorney Cang Le to service
our growing client base in the Desert Cities, Temecula and Riverside.

Experience. Adam’s background includes real estate, business and contract law. He was recently with a busy litigation firm where he worked on quiet title actions, mortgage disputes, breach of contract and breach of warranty issues.

Dispute Resolution. During law school, Adam conducted court-assigned mediations at the Riverside Superior Court. In his externship, he assisted with mediations and voluntary settlement conferences. He was also on the ADR Competition team in mediation and negotiations. In addition, Adam competed on the Trial Advocacy Competition team.

Education. Adam was on the Dean’s List and earned his Bachelor of Arts in History from the University of California at Riverside. He went on to earn his Juris Doctorate from the University of La Verne College of Law. His team won first place at the College of Law Intramural Negotiation Competition. His honors include CALI Awards for Civil Procedure, Advanced Evidence Practicum and Capital Punishment Seminar.

Contact Us. To learn more about our legal services, contact us.


QUESTION: Our HOA is responsible for front yard landscape maintenance and replacement. But owners pay the water bill. Per the new law, would homeowners have the right to install artificial turf even though they don’t control their front yard maintenance?

ANSWER: Nobody knows and ultimately the courts may have to answer your question. Normally, I would say this situation is analogous to townhouse roofs where members own their roofs but maintenance and replacement is controlled by the association. In such cases, owners do not have right to alter their roofs. They can’t, for example, change the roofing material from shingles to tile.

Unclear Principle. The same principle should apply to lawns. Owners do not have the right to change or interfere with landscape materials installed and maintained by the association. Even so, a judge could decide differently because of (i) the drought emergency, (ii) the owner is paying for the water, and (iii) the intent of the legislature to encourage artificial turf.

Too Broad. As noted in an earlier newsletter, the change to the Davis-Stirling Act makes void any architectural or landscape guidelines that prohibit members from installing artificial turf. (Civ. Code §4735(a)(2).) In my opinion, the statute is too broad. In a situation where an owner maintains flower beds per existing architectural guidelines, does the statute give him the power to tear them out and install artificial turf? Doing so would completely change the aesthetics of the development. I hope a judge would say “No” to such nonsense but who knows?

RECOMMENDATION: Associations should establish clear policies on turf specifications (color, quality, base materials, etc.), where it can be installed, and standards requiring replacement when the condition and color of the material drops below a certain standard.


Deadlocked #1
Good article on deadlocked boards. We had this situation two years ago, and our board honored a homeowners’ petition for a special election. The election itself had one of our highest participation rates ever (close to 80%) and we elected an excellent person to the board. -Norbert K.

Deadlocked #2. Another technique I have seen is that a director resigns effective upon the appointment of their successor. Therefore, the resigning director votes on his/her successor and the deadlock option is avoided. -Donald H.

RESPONSE: Yes, if done properly, a resigning director can participate in the appointment of his/her successor so as to avoid a deadlock. See Director Resignations.

Adrian Adams, Esq.
Adams Kessler PLC

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Deadlocked Board

QUESTION: Upon a resignation, can you tell me how a new director is chosen when the appointment process is tied 3-3 with the remaining board members?

ANSWER: If they can’t agree on a replacement, the board can put the seat up for special election. Only once have I had a board so thoroughly deadlocked that they could not agree on anything. It completely paralyzed operations.

Petition. When that happens, the Corporations Code provides that any director or members holding not less than 33 1/3 percent of the voting power may petition the court appoint a provisional (i.e., temporary) director to break the deadlock. (Corp. Code §7225(a).) The petition is fairly straightforward and is given priority by the courts. If unopposed, the appointment can be done within 30-60 days, depending on the court’s schedule.

Powers & Compensation. A provisional director has all the rights and powers of a director until the deadlock is broken or until removed by an order of the court or by approval of a majority of the membership. The director is entitled to compensation as determined by the court unless otherwise agreed with the association. (Corp. Code §7225(d).) Either way, the association picks up the tab.

RECOMMENDATION: The membership should pressure the board for a special election. It avoids the expense of a provisional director.


: One of our board members inspected our roofers with a drone and filmed them. Is it legal to film a contractor without his agreement? Do we need board approval to have a drone flying above the HOA? Can it be published on YouTube? More generally, is it time to replace human walk-thru of properties by movies made by drones?

ANSWER: Yes, you can film a contractor working on your property. You already have the right to inspect your vendor’s work which is normally done by walking the project. Even so, you should let your contractor know your plans so his crew will be on their best behavior and not take a swing at the drone.

Drone Technology. I do not favor a director operating a drone without board knowledge or approval. It is always better to have the board’s support, especially when it comes to controversial issues such as drones. Doing so protects the director. If he takes actions without board approval and something happens, he could find himself exposed to potential liability.

Legislation. An August 27, the Legislature approved a bill authorizing lawsuits against anyone flying a drone lower than 350 feet over private property without the owner’s permission. (SB 142.) Filming a roofing vendor repairing the HOA’s roof is not a problem. However, flying the drone over any balconies, patios or owners’ lots to get to the roof could land the director and his drone into court.

Industry Concerns. Fortunately, Governor Brown vetoed the bill. He was concerned that journalists could be sued if they flew their drones over private property to get to a newsworthy scene. In addition to news organizations, real estate companies are increasingly using them to film a house before it goes on the market. Getting an areal view of the property and the surrounding area helps to attract buyers. The movie industry also had concerns about the bill.

HOAs. For now, your board can use a drone to inspect roofing work. If, however, your director pauses at an owner’s window to peek inside, you’re probably going to get sued.

YouTube. I’m generally cautious about posting things to YouTube. If you can ensure that only members have access, then maybe. If there is nothing controversial about the film and it simply shows the progress of the roofing project, giving members a bird’s eye view shouldn’t be a problem.

RECOMMENDATION: Drones are here to stay and will only increase in numbers and sophistication. Before a board member or manager flies a drone over the development, they should board approval. In addition, associations should establish written guidelines for the use of drones in the event they allow them. If a board decides to ban drones, they should include the restriction in their Rules and Regulations. Boards should get legal counsel involved before making a decision.


am pleased to announce attorney Jane Blasingham joined Adams Kessler. Jane will be working with attorney Wayne Louvier in our Orange County office.

Experience. Jane’s experience includes planning, entitlement, management, budgeting, permitting, and construction of new residential communities for large, national home builders in California.

Formation of HOAs. Jane managed the formation of new communities and oversaw the creation of CC&Rs, bylaws, rules and regulations, and maintenance manuals. She served as a director on four homeowner association boards and held president, vice president, and director positions.

Education. Jane attended Master’s College where she earned a Bachelor of Science degree and graduated cum laude with her department’s highest award. She earned her Juris Doctorate from Western State College of Law where she graduated magna cum laude and valedictorian of her class. As a member of Law Review, Jane served as a technical editor and writer. Her accolades include five Witkin awards for academic excellence, Distinguished Honor Roll, and Dean’s Circle member for academic achievement.

Contact. To congratulate Jane or to learn more about our legal services, contact Jane Blasingham by email or by phone at (800) 464-2817.


We are continuing to expand our team of talented attorneys and are looking for candidates.

The ideal candidate will have experience in community association law.

Contact me by email or at 800-464-2817.


Violation Pictures
. You said we should avoid including children in our violation pictures. What if children are the problem? What if they are skateboarding where they shouldn’t or vandalizing something, or tagging walls? -Robert A.

RESPONSE: If a child is the problem, a picture of him/her in the act is appropriate. Some parents have trouble believing their little angels could ever do anything wrong. A photo will help convince them.

Artificial Turf #1. Your link to synthetic turf guidelines is tremendously appreciated! So often people just go with the lowest bid and the artificial turf looks terrible in a couple of years. People need to consider the cooling/oxygenating properties of natural ground cover rather than just going with the first material which looks green (for awhile). The high school a couple of blocks away took out their artificial turf on the playing fields because of the extreme heat (players were getting burned legs when sitting on it) and the chemical issues which are by no means totally resolved. Sometimes money isn’t the most important factor. -Nancy H.

Artificial Turf #2. As I read the new statute regarding artificial turf, if a homeowners’ association does nothing at all the law has not been violated. Civil Code §4735(a)(2) prohibits any requirement that artificial turf not be installed in common areas. If the association takes no action with regard to artificial turf and remains silent on the issue, all is well. Or am I reading this incorrectly? -Don B

RESPONSE: If the HOA does nothing, it’s not in violation. However, if you don’t adopt guidelines, what are you going to do when owners replace their front lawns with green indoor-outdoor carpet? It says you can’t prohibit artificial turf “or any other synthetic surface that resembles grass.” If you want to avoid things that “resemble” grass or cheap turf that turns gray in a couple of years, strong guidelines are important.

Adrian Adams, Esq.
Adams Kessler PLC

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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Rules Enforcement Pictures

QUESTION: Our architectural committee is enforcing lot appearance rules. They are taking photos of violations before sending warning letters. We are getting blow-back about taking photos from some homeowners. Are we okay to take such photos?

ANSWER: Yes, you can take pictures of violations.

Hearings. When holding a violation hearing, associations are required to produce evidence of the violation. A picture is worth a thousand words of testimony. It’s rare for someone to challenge a violation when confronted with photos.

Privacy Issues. People sometimes claim “invasion of privacy” if someone takes pictures of the violation. There are no privacy issues if the violation is visible to others. If it can be seen from the street or adjoining properties, it’s not private. If, however, committee members have to peer over a fence to see the violation, privacy becomes an issue.

Children. Another caution–committee members should avoid taking photos when children are in the picture. Owners understandably take exception to others taking pictures of their children. With so many pedophiles loose in our communities plus internet trafficking of children, they don’t want their children put at risk.

RECOMMENDATION: You might consider adopting written guidelines on the collection of evidence and acceptable practices for taking pictures of violations.


Normally new laws do not go into effect until January 1 of the following year. A new “turf” bill was deemed sufficiently urgent that it went into effect when signed by Governor Brown on September 4. The bill was aimed squarely at common interest developments.

AB 349 makes void and unenforceable any provision in an association’s governing documents that prohibits artificial turf or any other synthetic surface that resembles grass. The bill also prohibits HOAs from requiring the removal of water-efficient landscaping installed in response to the current drought emergency. That leaves an unanswered question–if the drought resistant landscaping gets shabby or the artificial turf turns gray, does that mean HOAs can’t force their removal and replacement? I see litigation in our future.

RECOMMENDATION: Since associations can no longer prohibit artificial turf, boards need to immediately adopt architectural guidelines on color, pile and weight, toxic materials, permeability, water absorption, etc. (See “Synthetic Turf Guidelines.”)


I will join Robert Nordlund, PE, RS in a discussion about making tough budget decisions when money is tight. Key takeaways for board members & managers will include true & perceived budget limitations and how to establish financial priorities.

Choose your preferred time from the drop down menu: Tuesday, September 15 – 11am PDT (2pm EDT) and 1:30pm PDT (4:30pm EDT). Click here to submit  questions prior to the webinar.


Kudos #1
. Hilarious! Keep it up! -Janice T.

Kudos #2. I did not like your response (about San Francisco) to Pool Maintenance #3. “Non-professional” would be too pallid; “snide” or “egregious” would be more appropriate. -Stuart R.

RESPONSE: My source told me San Franciscans had a sense of humor. I should have known better than to listen to him…he’s from LA where everyone carries an AK-47.

Kudos #3. As always, informative and enjoyable–keep entertaining us out here in HOA land. -Nancy H.

Kudos #4. Another great newsletter. We have several of the problems you write about. Spouses threatening, litigation by a board member, and three pools. Although we need a government to set some laws, I think they are overdoing it. I want clean pools but this is a great burden on small HOAs. -Theresa S.

RESPONSE: Large HOAs with lots of pools are also feeling the burn.

Kudos #5. I had to scour the globe but I believe your useful, entertaining & well written newsletter rates right up there with the car club newsletter I receive from New Zealand. -Greg M.

RESPONSE: That warrants a trip to New Zealand to check out my competition. I’m packing my bags.

Kudos #6. Adrian, I like your no-holds-barred, like-it-or leave it replies. As a manager who always has to try and give a politically correct response, you often say how I feel. I particularly liked: “Reading my newsletter is like watching a scary movie, sometimes you have to cover your eyes.” -C.T.

Adversarial #1. Please define “adversarial” so we can avoid potential hazards. -John G.

RESPONSE: A director who incessantly disagrees with his fellow directors on everything and is generally a pain in the behind is clearly adversarial (or off their meds)–but that is not what the court had in mind. If a board reasonably believes a director is likely to initiate litigation against the association, they can exclude him/her from the board’s discussions with legal counsel on the issue.

Adrian Adams, Esq.
Adams Kessler PLC

“Much More Than Just a Law Firm!” We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or

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