Pakistani Terrorist

QUESTION: A board member’s husband went to another board member and told him “F**K you, you f*****g Pakistani terrorist why don’t you go back home.” This was in front of construction workers and neighbors. This is not the first police report involving this director. We have elections coming up. Can we use the police report to let neighbors know about his behavior?

ANSWER: Sometimes board members have no control over their spouses. Some, however, use them for their dirty work. Either way, the spouse’s behavior was inappropriate.

Poor Judgment. There are two possibilities related to the Pakistani board member. Either he is a terrorist or he is not. In the unlikely event he is, the spouse is displaying incredibly poor judgment. Common sense dictates you don’t aggravate a terrorist by swearing at him. In the more likely event the board member is not a terrorist, the spouse still showed bad judgment. His actions will have a negative impact on the board’s ability to conduct business. It’s bad enough when bad behavior is confined to a spouse’s personal life but when it bleeds over to the board, something needs to be done.

Legal Action. Your board member may be the sweetest lady in the world but if her abusive spouse continues to harass directors, the board may have no choice but to take legal action to stop him. Before it comes to that, you might ask for her resignation from the board. If she refuses, you can actively campaign against her reelection (which may or may not stop the abusive husband).

Campaign Material. Directors and members alike have the right to alert their neighbors to the problems created by the husband. Board members must, however, do so as individuals using their own funds and not as board members using association resources. You have great latitude in expressing your opinions against a “public figure” running for office, i.e., the wife/board member, but you want to minimize the potential for defamation by keeping all your communications truthful.

RECOMMENDATION: You should talk to your association’s legal counsel for advice on how best to handle the misbehaving husband.

EXTENDING THE
DEADLINE FOR VOTING


Older CC&Rs frequently require approval by 75% of the membership to amend them. Even worse, some also require approval by 75% of the mortgage holders.
That was what the Bel Air Ridge HOA had.

Prehistoric Documents. Their documents were recorded in 1976, which is prehistoric when it comes to CC&Rs. The HOA tried to amend them and, as expected, not enough owners voted. The board repeatedly extended the voting period while pleading with members to vote. They extended the balloting deadline five times.

Petition Filed. When balloting was finally closed, only 65% of the membership had voted. Although they clearly missed the 75% threshold, 53% of the membership approved the restated CC&Rs. Of the lenders, 9 voted in favor, one against and 71 ballots were returned as undeliverable. Even so, it was enough for the board to petition the court for approval.

Extended Balloting. Three homeowners filed papers with the court opposing the petition. The court did not find their arguments persuasive and approved the CC&Rs. The opponents appealed and challenged the repeated extension of the voting deadline. The court of appeals reviewed the issue and concluded the extensions did not violate the voting process since the Davis-Stirling Act contained no restrictions on extensions and prevailed over anything to the contrary in the bylaws.

Lender Approval. The challengers also attacked the lender approval process. The HOA had sent a letter to them stating: “If you, as a lender, do not complete and return your ballot in a timely manner indicating your disapproval of all or part of the document, it will be deemed that you have voted in favor of approving the entire Restated CC&Rs.” The court decided the HOA had made reasonably diligent efforts to seek lender approval and found no violation.

Reasonable Restrictions. The opponents also argued the new CC&Rs contained unreasonable restrictions. They did not explain why they thought the restrictions were unreasonable but, instead, argued the HOA failed to establish they were reasonable. The court disagreed and ruled for the association, thereby approving the new CC&Rs.

COMMENT: The case is unpublished but provides good insight into handling CC&R restatements. See Bel Air Ridge HOA v. Rosenberg. Kudos to the law firm of Kulik Gottesman & Siegel for their win.

POOL
CHEMICAL TESTING


As of January 1, 2014, association pools are no longer “private” for purposes of health and safety regulations. That means HOAs must now comply with public pool chemical testing requirements.

Testing & Recordkeeping. In addition to meeting higher chlorine requirements, HOAs must now test the water daily. (Small HOAs are exempted if they have 24 or fewer units.) Regulations require that written records be kept onsite and preserved for at least two years. This includes (i) chemical testing, (ii) incidents of fecal, vomit and blood contamination, (iii) incidents of drownings or near drownings, (iv) maintenance and repairs, and (v) manufacturer’s instructions for operation of all mechanical and electrical equipment and water treatment systems.

Reporting Requirements. Associations must also report incidents where two or more pool users or lifeguards have diarrhea within five days of each other.

RECOMMENDATION: Associations should contact their pool maintenance company to make sure they are in compliance with the new regulations. For more information, see public pool Maintenance and Operation regulations.


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 info@adamskessler.com.

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Inflatable Bouncers

QUESTION: Can an HOA ban jumpers, bouncers, slides, etc. without it being in the CC&Rs or bylaws? Many HOAs allow owners with children who have parties and hire jumpers to place in the common area. It causes problems when the HOA prohibits them on the day of the event.

ANSWER: Yes, they can be banned. When it comes to the common areas, boards have the power to regulate activities. They can do so because governing documents put common areas under HOA control and reducing liability is a key element of a board’s duties.

Injuries. According to the Consumer Product Safety Commission, injuries related to bouncers are on the rise. They estimate more than 100,000 bouncer related injuries were treated in emergency rooms from 2003 to 2013, including 12 deaths. The Child Injury Prevention Alliance noted that inflatable bouncers can lead to broken bones and concussions and estimate that hospital emergency visits are now at “more than 30 children a day, or about one child every 45 minutes.”

Liability. If an owner holds a bounce party in his own backyard and a child is injured, the association won’t be dragged into the litigation. If the party is in the common areas, the association can be sued even though it was the owner’s party. Accordingly, boards have an interest in protecting the association from potential liability related to bouncers.

Rules. Associations don’t necessarily need a rule banning bouncers since a list of prohibited activities could be lengthy–no bouncers, no trampolines, no archery, no weapons, no serving alcohol to minors, no dangerous activities, etc. In addition to being lengthy, such restrictions can be difficult to define. Is running across a greenbelt a dangerous activity and therefore banned? Is using a stick to hit a pinata a weapon? Even so, a short list of banned activities may be appropriate.

Last Minute Notice. Associations often have a catch-all provision in their governing documents requiring permission before holding an event in the common areas. I suspect you did not get permission in advance of the party, which is why the HOA bounced your bouncer on the day of the event.

RECOMMENDATION: Associations with common areas that lend themselves to children’s events should talk to legal counsel about how best to limit liability for such events. That could include insurance and/or a signed hold harmless/indemnity agreement. In addition, boards can adopt a list of the more dangerous activities they wish to restrict and incorporate it into the reservation agreement so members will know in advance what they can and cannot do. Boards need to be cautious how they word restrictions. Otherwise, they could trigger claims of discrimination against families with children.

FEEDBACK


Fireworks #1
. Common interest developments in urban areas cannot enact rules concerning fireworks that conflict with local rules and ordinances. Many incorporated cities have banned the sale or use of fireworks altogether for safety and fire hazard reasons. -John A.

RESPONSE: HOAs can, however, adopt rules that are more restrictive than those imposed by local governments. See the next reader’s comments.

Fireworks #2. Our city allows “Safe & Sane” fireworks but many people go beyond. This year we banned “ALL FIREWORKS” in our HOA. The reasons are safety and the well-being of pets. The biggest day for runaway dogs is the 4th of July (ask any animal shelter) and many shake/shiver with fright even when being comforted. No owner complained about the total ban and many offered their appreciation. -Gary S.

*****

Pit Bulls #1. We enjoyed the pit bull comments. I agree the ankle biters can sometimes be more destructive. I remember a classified ad from a few years ago:

FREE YORKSHIRE TERRIER.
8 YEARS OLD.
HATEFUL LITTLE DOG.

Thanks, -Jim M.

Pit Bulls #2. Regarding some of the feedback you received…I am offended by people who are always offended. -Wayne W.

RESPONSE: Let’s hope such people don’t follow presidential elections. Comments by candidates will certainly trump anything I might say.

Pit Bulls #3. The Postal Service recently suspended mail delivery to one of our courtyards due to an aggressive dog. A homeowner selling his unit in the affected court received a cash offer but the buyer backed out upon learning there was no mail delivery. That answers my question whether or not aggressive dogs can affect property values. -Paul H.

RESPONSE: Boards who bury their heads in the sand regarding aggressive dogs leave other body parts exposed that could get chewed off by aggressive lawyers as well as aggressive dogs. Legal expenses are part of the cost of doing business and and spending a little now can save a lot later on.

*****


Day Defined #1. With respect to defining a day, It is true that the earth does not spin exactly in synchronization with our 365 day year, but the only time it spins 366 times in a year is in a leap year which contains 366 days. A year is really closer to 365.242 twenty-four-hour days, so we add an extra full day every four years to make the correction. And even that is off, as the extra day in February has to be skipped every 100 years, but not every thousand years. There are also other corrections made from time to time (no pun intended) to compensate for the lack of synchrony. And these do not even consider the corrections to time that are made to account for changes in the earth’s orbit and its rotation. -Jerry F.

Day Defined #2. Your response to “Day Defined” – “The scientific Full Monty…” Hilarious, thanks! -Maureen B.


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 info@adamskessler.com.

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Fireworks

QUESTION: Can associations regulate or even ban fireworks?

ANSWER: Which kind–the board meeting kind or the pyrotechnics used on the 4th of July? For the first kind, you can adopt rules of conduct for your meetings.

Pyrotechnics. The second kind, sparklers, firecrackers, rockets, hand grenades and the like, can be banned altogether within the development or limited to when and where they can be used.

Time, Place and Manner. If the association is in a forested area impacted by the drought, the board might, for safety reasons, ban fireworks altogether. High density condominium projects might also ban them out of concern for damage to the common areas. Other HOAs might allow them in a common area park but limit the types of fireworks allowed. If the restrictions are reasonable, most people will follow them.

BUDGETING
FOR RESERVES


QUESTION: I am a new board member. We plan to increase our reserve funds, which previous boards did not do. Our funds are dangerously low. We did a survey and the membership would prefer a 5-year-plan to increase reserves. Can the board vote now to increase dues for future years (e.g. Jan 2016, Jan 2017, Jan 2018)?

ANSWER: You could but it would have no binding effect. Future boards can ignore the planned increases. Even if succeeding boards agree to the plan, they still need to annually adopt a budget and comply with notice requirements. Even so, you should announce your plan to steadily increase reserve contributions via dues increases. It will get everyone used to the idea.

FEEDBACK


I had far more feedback than I could print. Following is a sampling:

Pit Bulls #1. I need to tell you again how much I enjoy reading your Davis-Stirling newsletters! Great information and entertaining, too. I found your pit bull article interesting. Thanks again. -David B.

Pit Bulls #2. As always, your articles are excellent and timely…loved the pit bull one. -Bonnie S.

Pit Bulls #3. I loved your commentary about pit bulls. During my career as a mobile notary public, I have come into contact with numerous dog breeds. Pit bulls have gotten a bad rap, it’s not the breed, it’s how they are trained. The only time I had to ask a client to put their dog in another room was one who had a Min Pin. That little dog really scared me. -Ellen M.

Pit Bulls #4. As to pit bulls and other strong-jawed breeds. They are not inherently more likely to attack or bite. The small yappy dogs are more bite-happy. The problem is that when pit bull breeds attack or bite, horrible injuries follow. People are correct to be afraid of them. Boards should take a “better safe than sorry” posture, cite inherent danger of injury from the strong-jawed breeds and ban them.  -Larry S.

Pit Bulls #5. Do you have any additional information on ‘sanctuary associations’? (Still laughing) -John C.

Pit Bulls #6. I love reading your questions and answers, but the pit bull advice is the best and I think there is a place for a book by you on the best HOA questions and answers ever! -Pamela S.

Pit Bulls #7. A neighbor just forwarded your recent newsletter to me. I have always appreciated and valued your online information but your reply offended me enough to write you about it. You not only condoned the original writer’s bias towards pit bulls but went further and added Staffordshire Terriers and bulldogs to the mix.

While I understand that pit bulls and Staffordshire Terriers have a bad reputation because of their natural aggressiveness, they can be trained to be docile and are often owned by decent people. I have had three English bulldogs and they are very good around people. I have NEVER seen bulldogs on any “dangerous dog list”! I think you should retract your statement which unfairly puts them in a category of dangerous dogs. The worst thing they will do is slobber on people!

The little dogs are usually the ones that cause more problems with their incessant barking and running around off leash. To say that by getting rid of prostitutes and drug addicts will get rid of these three breeds of dogs means that only prostitutes and drug addicts have them–sorry to tell you that you are wrong. I am not a prostitute or drug addict and love my bulldog. -Rita R.

RESPONSE: Don’t shoot the messenger. You should talk to the organizations that categorize dogs. They are in agreement that a pit bull is not a single breed but rather a category of dogs with particular characteristics. I noticed that bulldogs make the ranking in some lists but not others. Except for the slobbering part, I find them cuddly.

Pit Bulls #8. OH, MY. I always enjoy your newsletter but this one was a WINNER!!! I needed the laugh because sometimes I get so upset with people doing dumb things. I wish them the best with their prostitutes and drugs. You are right the dogs will go with them. -Theresa M.


Pit Bulls #9. You guys are hilarious! -Tony A.

Pit Bulls #10. Sanctuary associations protecting criminals from apprehension while receiving truckloads of federal money–good one, it had me going. It is a spoof, isn’t it? -Suzy G.

Pit Bulls #11. He’s got prostitutes and drug use but he is worried about pit bulls? -William S.

Pit Bulls #12. While many of your replies are humorous, your response to the pit bull quandary was hysterical. The images conjured up in my head will last the day, along with the smiles. Love your style!! -Lisa I.

*****

Day Defined #1. Actually, the earth takes a little less than 24 hours to make one rotation on its axis. Twenty-four hours is how long it takes for a spot on the earth which is directly below the sun to return to directly below the sun. In its orbit around the sun, the earth shifts its position relative to the sun from one day to the next; so when the earth has completed one rotation, it has to rotate just a little more to get that spot directly under the sun again. This is particularly interesting when you realize that in one year, 365 24-hour days have passed; but the earth has rotated 366 times. -Brian W.

RESPONSE: I like precision in the law but sometimes less is better. The scientific Full Monty could make for awkward 4-day meeting notices. As seen in the next response, strict 24-hour periods are not required.

Day Defined #2. The Civil Code defines how days can be computed, at least for Civil Code issues. It states: “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is excluded.” (Civ. Code §10.) That means while 24-hour periods are recommended they are not strictly required. –Jay Hansen, Epsten Grinnell & Howell.

RESPONSE: Thank you Jay for shedding light on the topic!


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 info@adamskessler.com.

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Pit Bulls

QUESTION: Our condo association is plagued with prostitutes, drug use and pit bulls. I’m a non-voting member of the board and want to know what we can do about the pit bulls.

ANSWER: Before we get to the interesting part of your question, what is a nonvoting member of the board? Without the power to vote, a nonvoting director is really an advisor not a director. The Corporations Code defines “directors” as:

natural persons designated…elected or appointed…to act as members of the governing body of the corporation… A person who does not have…voting rights as a member of the governing body of the corporation, is not a director…regardless of title. (Corp. Code §5047.)

Your association’s legal counsel should review your governing documents to see if they truly provide for nonvoting directors. If so, they should be amended since there may be attorney-client privilege problems if non-directors are privy to executive session meetings involving the association’s attorney.

Pit Bulls. I noticed it’s a class of dogs that bothers you, i.e., compact muscular dogs with great jaw strength such as pit bull terriers, Staffordshire bull terriers, and bulldogs. If your board were to get rid of the prostitution and drug use, I suspect most of your pit bulls would join the exodus.

RECOMMENDATION: The task will be daunting but your board should work with the police and legal counsel to clean up the development. Or, in the alternative, you could designate yourselves a “sanctuary association” for drug dealers and prostitutes and then apply for federal subsidies. You could be eligible for truckloads of money.

DECLARANT
LANGUAGE IN DOCUMENTS


QUESTION
: Our CC&Rs and bylaws have never been revised. In a number of provisions, powers are given to the “Declarant.” Since the builder has been gone for over 20 years, should these provisions be removed from our documents?

ANSWER: Yes they should.

Declarant Defined. As defined by the Davis-Stirling Act, a “declarant” is one who creates the original documents that govern the association. (Civ. Code §4130.) Declarants normally give themselves a great deal of power and voting rights so they can complete the development and sell units without interference from homeowners.

Confusing. Declarant language can be very confusing to directors and members alike. Is the association a successor to the declarant? Does the association have the powers of the declarant? Is the association allowed to modify or delete declarant language? In short, the association is not a successor to the developer and does not have a declarant’s powers. And yes, associations can delete declarant provisions once the builder no longer has an interest in the development.

RECOMMENDATION. Associations should, at some point, update their documents. When they do, declarant language should be deleted along with all the legalese that goes with it. It gives you the opportunity to clarify maintenance issues (always a source of conflict and potential liability), add director qualifications, incorporate changes in the law, and make the documents easier to read.

WHEN IS A DAY
A DAY?


QUESTION
: I am trying to obtain the legal definition for a “day” as it applies to our HOA. If a “2-day notice” of a meeting is given at 8:30 on a Thursday night, Saturday morning at 9:30 is not 48 hours.

ANSWER: Fortunately, defining a day is easier than defining what the meaning of “is” is. The Sixth Edition of Black’s Law Dictionary states, “This word [“is”], although normally referring to the present, often has a future meaning, but is not synonymous with ‘shall have been.’ It may have, however, a past signification, as in the sense of ‘has been.'” Like I said, it’s not easy to define–even presidents struggle with it.

The definition of “day,” however is fairly straightforward. Black’s Law Dictionary defines it as “A period of time consisting of twenty-four hours” or “The period of time during which the earth makes one revolution on its axis.” It’s when you get to the fourth definition that it gets contrary: “The whole or any part of period of 24 hours from midnight to midnight.” Fortunately, that definition came from a case out of Kentucky so I think we can discount it. I prefer the common-sense 24-hour definition.

RECOMMENDATION: It’s always better to err on the side of full 24-hour periods so as to avoid legal challenges. If you give 4-day’s notice of a board meeting by posting on Monday at 5:00 p.m., the meeting should not be called to order until Friday at 5:00 p.m.

FEEDBACK


Drought
. Your article on dying trees was timely. Earlier this week a tree fell on a group of children on a school outing. People need to water their trees. -J.B.


RESPONSE: One of the unintended consequences of the push to stop watering lawns is that turning off sprinklers can be a shock to trees already suffering from the drought. According to the U.S. Forest Service, 12 million trees in California died last year from lack of water.


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 info@adamskessler.com.

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No Due Process

QUESTION: Our pool usage was revoked without any due process and nothing in writing. I went to use the pool one day and couldn’t get in. The president said we were banned as long as he was president and we were lucky we weren’t fined. I asked for a fine schedule but he couldn’t produce one. He said it depended on what the board saw fit for the offense. I mentioned the Davis-Stirling Act and he said it was nothing but a guideline. He said our CC&Rs are the law. Help!

ANSWER: Ah, where to start?

The Law. First, the Davis-Stirling Act is not just a guideline, it’s the law. It encompasses Civil Code sections 4000 through 6150. Violations by the board can result in lawsuits, fines, court orders and an award of attorneys’ fees. Second, your CC&Rs are not the law, they are recorded restrictions known as equitable servitudes. CC&Rs are high on the food chain but they’re a full step below the law.

Due Process. It’s entirely possible your family violated the rules, are a pain in everyone’s rear end, and deserve to have their privileges suspended. However, before any penalties can be imposed, the law requires that you first be given 10 days written notice of the violation and a hearing date so you can defend yourselves. Once the board hears the evidence and makes a decision, it has 15 days to give you its written decision.

Fine Policy. Finally, the board cannot create penalties on the fly. The board must comply with the association’s written fine policy (which must be published annually). If they don’t have a fine schedule, they can’t levy fines or suspend privileges.

RECOMMENDATION: If you’re violating the rules, you should stop. If your board is not following the law, they should start.

DEAD TREES

QUESTION: We are a small HOA in central California. With the drought, we look down at our proud brown grass and up at our trees which we hope to preserve. Several owners have giant redwood trees in their back yards. Should we address these tall trees which could fall onto our homes? Is this a board issue or an insurance issue?

ANSWER: Good grief–don’t wait for it to become an insurance issue. If trees topple, you could have dead or injured homeowners as well as significant property damage. Surviving family members will file costly lawsuits that could easily exceed your insurance limits and result in hefty special assessments.

Water Your Trees. If trees are not watered, they will become stressed and subject to insect attacks, disease and death. Despite Governor Brown’s executive order and subsequent legislation about not watering lawns, people should water their trees. If mature trees die, they’re extremely expensive to replace (not to mention the small issue of death and destruction when they fall).

RECOMMENDATION: Even though you can’t fine owners “for reducing or eliminating the watering of vegetation or lawns” (Civ. Code §4735(c)), a lawyer-letter may be sufficient to get owners to water their trees. If someone is too short-sighted to comply and his trees die, you can force him to remove them–which is far more expensive than simply watering them.

RENTER
VOTING RIGHTS

QUESTION: We have a board member that’s a renter. Our bylaws allow it but they don’t allow non-members to vote. So what do we do–keep him as a director but don’t let him vote?

ANSWER
: Your voting restriction likely deals with membership elections. That means your renter can’t vote to elect or remove directors. He can, however, run for the board and, if elected, vote in board meetings because he’s voting as a director not a member.

RECOMMENDATION: To restrict directors to members only, you need to amend your bylaws.

GATHERINGS, MEETINGS
AND WHATNOT


QUESTION
: If a meeting of homeowners and board members is called something other than a board meeting, such as a gathering or a town hall meeting, do the same rules apply?

ANSWER: It depends. If everyone gets together for a prayer meeting or a barbecue and directors don’t hear or discuss business, then it’s just a prayer meeting/barbecue and no rules apply.

Other Meetings. A town hall meeting is a little different. Such meetings are defined as informal membership meetings to discuss a particular issue. Other than giving notice of the meeting and posting an agenda of the items to be discussed, nothing more needs to be done. If a quorum of directors will be in attendance then at least four-day’s notice must be given.

Board Vote. If the board intends to vote on business at your assemblage/forum/whatnot, then it’s a gathering coupled with a board meeting and appropriate notice must be given.

Membership Vote. If the membership were to vote at your gathering/summit/congregation of homeowners, it depends on the nature of the vote. If it’s an informal advisory vote to give the board direction on a particular matter, it’s still an informal gathering and nothing special need be done–members can vote by a show of hands or a voice vote. If the members are expected to formally make a decision on issues requiring secret balloting, then secret ballots are required with at least thirty day’s notice.

RECOMMENDATION: The more conservative approach is to always give appropriate written notice of meetings together with an agenda whenever the board or membership gets together to discuss association business. I even like printed agendas at prayer meetings so I know what I’m praying for.

FEEDBACK

Dead Turf #1. If an owner turns off the irrigation to the HOA’s landscape in front of his home and causes it to die, can he be held liable for the restoration of said landscaping? -D.G.

RESPONSE: Yes he can. Owners have no right to tamper with landscaping maintained by the HOA. Turning off the irrigation falls into the category of “vandalism” and subjects the person to fines and costs of repair.

Dead Turf #2. Medium and larger associations should consider having arrangements with their vendors to make available to the owners acceptable plant material at wholesale or marginally above. This eases the burden on those owners who want to remove turf and install drought tolerant landscaping. Vendors may be willing to do weekend presentations to members on the available materials that will enhance the owners property while meeting the new HOA guidelines and standards. Such programs may also be helpful to make owners switching to drought tolerant material more knowledgeable about how best to successfully install and maintain their new landscaping. -Rich N.

Dead Turf #3. I recently sold my townhome in Covina and moved to a home in La Quinta. The comment about grass bouncing back with just a little water is misleading. Recovery of a lawn may not be possible if the roots are allowed to die. If that is the situation then it’s probably a good time to consider landscaping options such as drought tolerant plants and colored rock ground covering or bark chips. People in California need to accept the fact that changes in landscaping are necessary because of the extended drought. They can’t just ignore the situation or wish the drought away. -John A.


Adrian Adams, Esq.
Adams Kessler PLC

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

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Weeds & Dead Lawns

QUESTION: I know we are in a drought but what can we do when owners let their lawns die and weeds grow?

ANSWER: Normally, you would hold hearings and fine members. But with the current drought emergency, your options are limited.

Weeds. You still have the power to require the removal of dead plants and weeds. This is consistent with another statute, Civil Code §4750(e), which allows an association to require the removal of dead plant material and weeds from personal gardens.

Dead Lawns. Dead lawns are another matter. Because of the drought emergency, boards cannot fine owners for reducing or eliminating the watering of lawns during any period for which the governor or local government has declared a drought emergency. (Civ. Code §4735.)

Lawn Replacement. Can HOAs force the removal of dead turf and require its replacement with different landscaping? Probably not. Even when a lawn turns brown and looks dead, most will bounce back when watered. If an association were to order the removal of turf and the installation of new landscaping (under penalty of fines), a judge could deem it contrary to the anti-fining statute and rule against the association.

RECOMMENDATION: Associations should adopt landscape standards that describe the types of low-water plants allowed as well as permissible alternatives, such as hardscapes, wood chips, crushed rock, etc. Doing so establishes new aesthetic standards for the community. As more people remove their lawns and install drought tolerant landscaping, members with dead lawns may be more inclined to remove dead turf and re-landscape. Once the drought is over, associations can take a more direct approach to the problem.

Thank you to attorney Wayne Louvier in our Orange County office for his assistance with this question.

REESTABLISHING
PET RESTRICTIONS


Last month the court of appeals handed down an unpublished decision showing that associations can reestablish restrictions where previously there had been lax enforcement.

The CC&Rs of Villas in Whispering Palms restricts members to one dog per unit. Over the years, boards had granted variances so owners could have multiple dogs.

In 2003, the board decided it would no longer allow multiple dogs. It notified members that those who already had more than one dog would be grandfathered. However, once a dog died, it could not be replaced.


From that point forward, pet restrictions were strictly enforced and disciplinary actions were taken against violators in 2008 and 2009 which resulted in four homeowners giving up one of their two dogs.

In 2011, Richard Tempkin bought a second dog. The Villas sent him violation letters and met with him in an attempt to resolve the matter. When that failed, fines were levied. Finally, the Villas had no choice but to sue Tempkin.

Tempkin defended by alleging (i) bad faith by the board, (ii) arbitrary and capricious enforcement, and (iii) lack of due process. The court deemed his arguments unpersuasive and ruled for the association. Tempkin appealed.

The court of appeals reviewed the case and found no merit in Tempkin’s arguments. The court held that the board’s enforcement of the dog restriction, despite years of granting variances, was reasonable and entitled to judicial deference. The court noted that once the board decided to strictly enforce the rule, it was done uniformly. (See Villas in Whispering Palms v. Tempkin.)

Kudos to attorney Anne Rauch and her team at Epsten Grinnell & Howell for their fine work on this case.

MARIANNE PICK
JOINS ADAMS KESSLER


I am pleased to announce the hiring of Marianne Pick as Director of Business Development.

With the firm’s continued growth in the Orange County and San Diego markets, Marianne will be managing business development and client relations in these regions. Marianne comes to the firm with 12 years of experience in the Southern California HOA industry. Her work with boards and managers over the years has given her great insight into the challenges they face.

Marianne will team with Sue Anderson and Nathalie Ross Weinstein to assist boards and managers. Sue was recently hired for the Riverside and Coachella Valley regions. Nathalie will be heading the team with her recent promotion to Vice President of Business Development at Adams Kessler. Together, they will enhance our firm’s legal services and client satisfaction by ensuring timely delivery of quality legal products to our clients.

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

HIRING LAWYERS

I am hiring lawyers for my Los Angeles, Orange County and Inland Empire offices. If you are interested, please contact me by email.

Adrian Adams, Esq.
Adams Kessler PLC

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

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Building Permits

QUESTION: Our CC&Rs state the Architectural Control Committee may require a person submitting plans to obtain approval of governmental agencies. Is there a legal obligation for our association to do this and what are the dangers and legal ramifications to the association if it does not?

ANSWER: There is no obligation that your architectural committee demand proof that owners obtain building permits since the language in your CC&Rs is permissive rather than mandatory. Despite the language, homeowners have an independent obligation to obtain permits. Policing that obligation falls to the city or county in which the association is located.

Good Practice. Even so, many condominium associations require proof of a building permit before an owner’s remodel/construction can proceed. The reason is that construction in a condominium impacts common areas. Requiring a permit as part of the architectural approval process means the association can have a reasonable expectation that any alterations to the common areas will comply with building codes.

RECOMMENDATION: Every association should have written architectural standards with approval procedures. In addition, boards should seriously consider using a remodeling agreement (drafted by HOA legal counsel). Approval of architectural applications can be conditioned on the owner signing the agreement which obligates him to: (i) obtain a building permit, (ii) use licensed and insured contractors, (iii) not deviate from plans without approval, (iv) follow the rules, and (v) other requirements as may be appropriate. In addition, any significant alterations to the common areas should require a recorded covenant obligating the owner to maintain those alterations.

SWIMMING POOL
“GUESTS”

QUESTION: A renter today allowed his cleaning crew of three woman to bring 11 children, teens and adults to our community pool. Yes, they had a key. They were in the pool for three hours including feeding everyone lunch. The renter was not there since he goes to work at 7 a.m. and comes home after 8 p.m. What liabilities go along with this activity? Can we do anything?

ANSWER: Yes, there is plenty you can do. Neither the owner nor his tenant has the right to allow vendors, contractors, or domestic help (plus families and friends) to use the association’s facilities.

Liability. The potential liability is the same as if members used the pool, i.e., injuries and/or drownings that result in lawsuits. However, the chance for injuries increases with the number of children–especially if they are unsupervised. Another negative is the unhappiness of your members over strangers using the pool.

Rules & Regs. If you don’t already have pool rules, your board needs to adopt rules that: (i) the pool is for residents and guests only, (ii) guests must be accompanied by the resident, and (iii) guests are limited to three. The number of guests can vary from association to association so long as the limitation is reasonable. With rules in place, interlopers can be asked, politely, to vacate the pool area (or any other common area facility).

Rekey the Pool. In addition, the unauthorized “guests” can be required to surrender their key to the association. If they refuse, you should not get into a wrestling match with the person. Instead, you can rekey the facilities and charge the thoughtless owner for the expense (following a reimbursement hearing).

Hearing & Fines. You can also hold a disciplinary hearing with the owner and his tenant. If the board finds the tenant violated the rules, fines can be levied and pool privileges suspended for up to thirty days.

Discrimination. The real danger for associations is the drafting of the rules. Too many get themselves in trouble for discrimination against families with children. There are plenty of rights advocacy groups out there that will happily sue associations for discrimination. You want to make sure you’re not one of the suees.

RECOMMENDATION: Have legal counsel review your rules.

FEEDBACK

Newsletter #1. Adrian, you make my day with your humor. It is difficult being a board president and I appreciate all the smiles I can get! -Vickie B.

Newsletter #2. I am inspired, informed and stimulated every Sunday by your newsletter. Thank you so much for providing us with your knowledge and wisdom! -Denyse B.

Newsletter #3. I just want you to know I appreciate your weekly newsletter. The questions posed are interesting and make me aware of issues facing other groups. Keep up the good work! -Sammie B.

Newsletter #4. Loved, LOVED your joke about growing freeways via watering them! -Gary F.


Adrian Adams, Esq.
Adams Kessler PLC

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

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Protecting Committees

QUESTION: I know that board members are legally protected but what about committee members (like a rules committee, newsletter committee, finance committee, etc.)? Are they also protected under the Civil and Corporations Code?

ANSWER: Unfortunately not. By statute, board members have a higher level of protection but the same is not true for committee members. They do, however, frequently have protections under the association’s governing documents and and its insurance policy.

Advisory Role. One way to reduce potential liability is to make sure your committees are advisory only. Without decisionmaking authority, they make a much smaller target. Two exceptions to advisory-only committees are executive and architectural committees. The first is made up entirely of directors and the second derives its authority from the governing documents. The surest way to protect all volunteers is for the association to purchase insurance to cover them.

RECOMMENDATION: Proper D&O Insurance is a must. Make sure your association’s policy covers committee members as well as board members. Adopt an ethics policy so committee members know what constitutes proper and improper behavior. And, adopt committee charters so members know they are advisory only. Finally, if your governing documents are silent about protections for committee members, you should consider amending your documents.

WHEN A
DIRECTOR SUES


QUESTION: Our HOA has only five owners and all owners are on the board. Can an owner, under the D&O coverage, sue the board for an issue as an individual owner? My thought is that you can’t sue yourself, yet they wear two hats…board member and homeowner.

ANSWER: Yes, a director can sue his association. Your D&O insurance may deny coverage but it does not prevent him from suing.

Suing Himself. You’re right that, as a practical matter, your fellow director is suing himself when he sues the association. He can do it because, from a legal perspective, he is not suing himself. He is suing a separate legal entity–the association.

ADR. Before your unhappy director can sue, he must first determine if the governing documents require binding arbitration rather than litigation. If so, he must follow the governing documents. If your documents are silent, the plaintiff can go into court. Depending on what he seeks and why, the Davis-Stirling Act may require that he first endeavor to submit the dispute to alternative dispute resolution.

Recusal. During the litigation, the plaintiff director must recuse himself from any discussions or votes related to his lawsuit. If he refuses, the board can form an executive committee (minus the plaintiff) to work with the association’s attorney on the lawsuit. If the governing documents prohibit a director from serving while in litigation with the association, the board can vacate his seat.

Insurance. A consideration for the plaintiff is that the association’s insurance may refuse to defend. Some insurance policies exclude coverage if one director sues another director. D&O insurance is designed to protect directors from third-party claims, not infighting between directors or claims against current or former directors for imprudent business practices. This is known as an “Insured vs. Insured” exclusion.

Special Assessment. If the carrier denies coverage, the membership could be specially assessed to raise the funds needed to defend against the action. If that happens, the plaintiff may find himself an outcast. He should be careful about pooing where he eats.

RECOMMENDATION: The board should avoid litigation and make every effort to work out their differences.

Thank you to Mike Rey of the Mike Rey Insurance Agency for his input on this issue.

FEEDBACK

Droughts make people do funny things. As Mark Twain observed, “Whiskey’s for fightin’…water’s for killin’.” Let’s hope we don’t have any of either as HOAs deal with the drought. Following are a few more comments from readers.

Water Bills #1. Our docs allow the board to implement water saving measures, which could mean installing individual water meters per unit. Unfortunately, most multiplexes have several water line entry points into the unit–one for kitchens, another for bathrooms, etc. Thus, a single meter isn’t possible. I think the state needs to mandate that all new multiplexes being built have a separate meter for each unit. -Joseph L.

Water Bills #2. Our association had water meters put in at each townhouse which seems the fair way to go. We pay for our own water usage. -Suzy P.

RESPONSE: Fortunately, townhouse construction has a single line entering the unit. In your case, submetering makes sense. As noted by Joseph L., it may be impossible to retrofit condominium complexes with submeters.

Water Bills #3. Great drought map link. Thanks. -Scott C.

Water Bills #4. (Concerning the fairness of billing owners for their water usage by the number of residents in each unit…) The elderly lady may not use the pool but she still pays for it. -Don H.

RESPONSE: True. But the pool enhances her property values and she and her guests can use it if they choose to. Moreover, her assessments are not increased by the number of people using the pool whereas the number of people living in a unit directly affects water usage (and monthly dues).

*****

Drought. I noticed the freeways were being watered. -Suzy P.

RESPONSE: You shouldn’t be critical of the state–they are trying to grow more freeways.


Adrian Adams, Esq.
Adams Kessler PLC

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

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Allocating Water Bills

QUESTION: I rented my condo to a family of six--two adults and four children. The HOA now wants owners to pay for water based on the number of occupants rather than equally as is currently done. Can the HOA legally require me to pay for water based on the number of occupants?

ANSWER: In light of the drought and the unequal usage created by a unit full of renters, allocating expenses based on usage has two advantages for the association: fairness and conservation.

Fairness
. On the equity side, why should an elderly widow who lives alone subsidize water for a unit with six renters–especially when the landlord is making money on the rental? The more equitable approach is for each owner to pay their own share of water usage.

Conservation. Making owners pay based on usage also creates an incentive to conserve water. Owners will use less water when the money flowing out of their pocket is tied to the water flowing out of their faucet.

It Depends. Whether the association can change its billing practice depends on its governing documents. If the CC&Rs clearly require that the cost of water must be shared equally regardless of usage, the association must amend its documents before it can change its billing.

Renters. If the CC&Rs are silent on the issue, the association bill owners based on estimated usage. In Watts v. Oak Shores, the court of appeals supported the association’s authority to allocate cost. Watts was a landlord whose renters increased the association’s expenses. The board estimated those costs and assessed Watts. Watts sued and lost. He then appealed and lost. (He has now petitioned the Supreme Court–we don’t know yet whether the court will hear his petition.)

Reasonable Allocation. I believe the principles delineated in the Watts decision have a broader application than just renters. If an association is master metered, it could estimate water usage based on the number of people living in a unit. The court of appeals wrote that:

Nothing in the language of [Civ. Code §5600(b)] requires the exact correlation between the fee assessed and the costs for which it is levied… In some instances, such an exact correlation may be impossible to obtain. In other instances, the costs of studies necessary to obtain an exact correlation may be prohibitive… The most reasonable interpretation of [Civ. Code §5600(b)] is that it requires nothing more than a reasonable good faith estimate of the amount of the fee necessary to defray the cost for which it is levied. (Watts v. Oak Shores.)

According to the California Water Resources Control Board, residential water use averages averages 77 gallons per person per day but ranges from 43 gallons to 427 gallons per person depending on the locale. A map of California published by the New York Times shows water usage around the state. An association could use such numbers to estimate water usage and levy appropriate charges.

RECOMMENDATION: Condominium associations should have legal counsel review their governing documents to see if they can bill owners based on water usage. If not, they need to amend their documents. If documents are silent or allow it, boards should contact their local water board for per person average water usage. In addition, boards should implement additional water conservation by addressing leaks inside owners’ units. For assistance, contact us.

Attorneys Russ Higgins and Steve Roseman will be speaking at an event hosted by the Channel Islands Chapter of CAI. They will cover creative approaches to handling:

  • Nuisances. What to do about noisy people and pets, smoking, estate sales, and a host of other complaints.
  • Remedies & Enforcement. Navigating through ADR/IDR, pros and cons of monitoring compliance, options for disciplinary actions and effective enforcement policies.
  • Board Meetings. From drinking during meetings to disruptive homeowners, how do you maintain order?
  • Q&A. There will be time for attendee legal questions.

The program is Thursday, June 11 from 6:00-7:15 p.m. at the Courtyard Marriott, 600 E. Esplanade Drive in Oxnard. Managers, board members & homeowners who are CAI members are FREE. Contact Executive Director Leah Ross for questions and to register.

HOA LAWYER

I am looking for a lawyer for my Temecula office. If you know a good candidate, please contact me by email or:

Adrian Adams, Managing Director
Adams Kessler PLC
2566 Overland Ave., Suite 730
Los Angeles, CA 90064
(800) 464-2817
FEEDBACK

A passing comment by a reader about escrow documents created quite a discussion the past few weeks. I am printing a few more comments and then stopping so we can move to other topics. Some of the feedback was quite lengthy and had to be edited down because of space limitations.

Escrow Documents #1. A property transaction requires not just disclosures but reams of follow on communications. We have one unit where we had to process over 85 communications despite having produced the most extensive disclosure known to the California HOA industry. On top of the disclosures, we are asked to produce lender certs, escrow demands, attorney letters-all sorts of data submittals, and always in a hot rush. Our managing agent charges $500 and spends about 8-10 hours for each transaction. Then they have to deal with all the “we are too busy to read anything for ourselves” from the “professionals” who call and e-mail for repetitive hand holding. This is no “scam;” this is a critically important service. -Laurence

Escrow Documents #2. Realtors may be stubborn (May 17th newsletter) but they are looking out for the seller’s best interest. Governing documents are amended over time and photocopied. Recently a seller provided his own copies rather than pay for them. Unfortunately, he was a missing page that limited the weight of pets. The buyer moved in and was cited for having a dog 13 pounds over weight. The matter was finally resolved in small court but ended up costing the seller more than what it would have cost to have the documents transferred professionally. -Rita S.

Escrow Documents #3. I have been a RE Broker for 36 years. Today’s transfer fees include many tasks that cost time and money–more than just providing documents. Besides providing the most current documents, someone has to answer lender questions, follow up with the title company, get a copy of the deed, answer realtor questions, change the HOA records and files, send correspondence to the new owner, prepare information regarding method of payment for new owner and various other tasks. All of this takes time and money. -Nancy S.


Adrian Adams, Esq.
Adams Kessler PLC

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

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Runoff Election

QUESTION: In the event of a runoff between a sitting director and a non-director, is the latter required to attend the board meeting at which ballots of the runoff election are counted? If the outside director wins the election when does his term start?

ANSWER: Unless your bylaws require that a candidate be present when the results are announced (which I’ve never seen), he does not need to be present. If he wins, his term starts immediately unless your bylaws state otherwise.

ELECTIONS IN
SMALL ASSOCIATIONS

QUESTION: We are a small 6-unit condominium project. Each owner is a board member. Can we waive the secret ballot requirements for assessments and modifications to the governing documents?

ANSWER: The Davis-Stirling election requirements are particularly burdensome on small associations. There have been discussions in Sacramento about exempting small HOAs but, to date, that has not happened.

Informal Elections. Some small associations have taken matters in their own hands and unilaterally dispensed with the voting requirements. They get together each year in the living room of one of their units and, by consensus, declare all the owners elected to their respective seats. They do the same thing for assessments and amendments, i.e., decide such matters via voice votes. If someone wants secret ballots, they circulate slips of paper, write down their votes, fold the slips and pass them to the Secretary (or a spouse) to tally the results.

RECOMMENDATION: I can’t recommend the practice since it violates the Act. I’m simply reporting how some associations handle the problem.

EXECUTIVE MINUTES

QUESTION: Can a member appointed by the board act as recording secretary in executive session meetings?

ANSWER: There is nothing that would legally prohibit it. But as a practical matter, it would be more prudent to hire someone who does not live in the development. They would be less likely to gossip about what happens in executive session.

FEEDBACK

Escrow Documents #1. Our association posts its governing documents on its website. This is available publicly to Realtors or anyone else who wishes to view or download a copy. If requested, printed copies are provided by the manager for a fee based on costs. Since the documents are posted, Realtors seem satisfied with downloading. -Gordon C.

Escrow Documents #2. Escrow document charges are a scam! Our property manager created a very simple website. All governing documents (CC&Rs, amendments, condo plan, articles of incorporation, bylaws, rules and operating policies) are accessible online. When a property is listed, we give access to the listing agent and leave the responsibility of downloading and transmitting the documents to the agent and new buyer. There is absolutely no reason in this day and age for there to be a charge for this. If the lender wants another document filled out about occupancy, litigation and other stuff, our manager does this for $125. -Mike G

Escrow Documents #3. My management company averages 260 disclosure document requests a month asking for almost 1,200 documents. It takes time and money to process those requests. Using a third party allows us to reduce the cost about 25% from what it would otherwise cost to replace documents homeowners have misplaced. The average sales commission on a $750,000 home is $45,000 but realtors complain because the management company charges a few hundred dollars for the effort it takes to accommodate their request because they don’t “trust” the seller. If I were a homeowner and my realtor asked me to pay for something I already had and could provide for free, I would suggest they take it out of their commission. -Roy H.

Escrow #4. I noticed the feedback for escrow documents and wanted to chime in with my experience. Not only was I charged for email pdf copies (around $150-175) I was informed a printed physical copy was another $100!!! They didn’t even have copies of the prior full year of board meeting minutes! I contacted the property manager who kept insisting the 3rd party company had it all so I went back and had to complain twice to the 3rd party company because the property manager kept throwing it back at them. With this 3rd party BS everyone points the fingers at everyone else. That disconnection is a huge liability and disappointment considering what these “professional property management” companies charge. -Margot B.

**********

Trustees #1. I agree 100% with your response on trustees. The real problem is when, for example, the home is in the name of a spouse or a trust for the spouse and the other spouse wants to run for the board. He is clearly not an owner and most covenants only allow for an owner to run for the board. Our association amended its bylaws to alleviate this problem, however, no one thinks about this issue until it happens. -Paul M.

Trustees #2. In my trust where I am currently listed as sole trustee, I have my partner listed as successor trustee. In addition, I have a provision in the trust that states he is part owner (I list the percentage) of the condo unit that is recorded in the name of the trust. The HOA’s attorney stated that only I can act for the trust per the public documents. He said the association does not recognize ownership interests that are not part of the public record. Is that legal?

RESPONSE: The HOA has a smart attorney. I agree with him.

Trustee #3. It’s ironic that some people who are very vocal lack the legal knowledge in the specific area they are griping about. I always respond by asking them where they obtained their law degree. -John A.

Trustees #4. “Trustees are owners and have the right to vote and serve on the board.” How about a trustee who has a parent living in the unit but had an attorney write a letter stating the trustee authorizes the parent to vote for the trustee? Since the parent is not the owner of record, is this legal? -Phyllis J.

RESPONSE: Since the parent is not an owner, any attempt at proxy voting by the parent is void. By statute, a member can give their proxy only to another member. (Civ. Code §5130(a)(1).)


Adrian Adams, Esq.
Adams Kessler PLC

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

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