Children in the Stream

QUESTION: Two boys ages 6 and 10 were playing in our common area stream. When I asked about their parents, a man came out and said, “Where does it say in the rules children must be with their parents?” Do I have to worry a Fair Housing claim if I tell the children not to play in the stream? I really think it should be a rule that no children should be in the common areas without adult supervision.

ANSWER: If you are a neighbor telling children not to play in the stream, you don’t have to worry about Fair Housing claims. The association, however, could become a target if it adopts discriminatory rules.

State Agencies. When it comes to alleged discrimination, employees of the Department of Fair Employment (DFEH) are rarely neutral investigators. Some are zealous advocates for whomever files the complaint. I once had to go to the head of the DFEH to get an investigator pulled from a case because she was a nut.

Potential Liability. DFEH investigators, unfortunately, don’t focus on the big picture. Attempts by the association to avert injuries seems to be of little concern to the DFEH. It doesn’t matter that if an unsupervised child is injured in the common areas, the association will be sued.

Discrimination. They believe it’s their job to stamp out any perceived discrimination. For example, another association similar to yours was admonished by the DFEH because they had a rule that “children are not allowed to play in the…lake or streams.” The DFEH decided this was discriminatory because “This rule specifically targets children.” The DFEH ordered the association to revise its rules “to delete the word children wherever it appears.”

Minors. To satisfy the DFEH, rules must be narrowly tailored. For example, if you require “minors” to be supervised, the rule is deemed too broad. A minor is anyone under 18, which is considered too restrictive. If a 15-year old can get a driving permit, it is unreasonable to say they must be supervised while in the common areas.

Parental Supervision. If you require that anyone under 15 have “parental” supervision, the rule is also too restrictive. Any adult can do the job. Even “adult” supervision can be too restrictive. Some argue that a 16-year old is sufficient to supervise children.

RECOMMENDATION: Although heavy-handed, there is some logic in the positions taken by the DFEH. It means that association boards must be more careful how they word their rules and regulations. It may cost a few dollars but boards have their rules reviewed by legal counsel. It is less expensive to adopt properly drafted rules than to defend poorly drafted ones.

JOSEPH HUDACK JOINS
ADAMS STIRLING


I
am pleased to announce that attorney Joseph “Joe” Hudack joined our team.

In addition to a Juris Doctorate degree from Western State College of Law (magna cum laude), Joe has more than 25 years experience in corporate and commercial real estate.

Real Estate. His experience includes handling transactional real estate matters for companies such as Fluor, Walmart, and Dial. His responsibilities included drafting, negotiating, executing and closing acquisitions, sales, leases, subleases, and lease terminations. He also owned and operated a development company and was a national real estate consultant for companies such as Home Depot, Newell Rubbermaid, and Viad Corp.

Certifications. Joe’s certifications and licenses include:

    • CCIM (Certified Commercial Investment Member)
    • MCR (Master of Corporate Real Estate)
    • Licensed Real Estate Broker
    • Former licensed Contractor and Real Estate Appraiser

Inland Empire. Joe works out of our offices in the Inland Empire and serves as corporate and litigation counsel to associations throughout California. Joe is an impressive addition to the firm. To write him a note, see his contact information.

FEEDBACK


Donations #1
. A deceased member’s transfer of assets by will, trust or gift is not a taxable event. It is true that the transfer is not a charitable deduction in computing the estate or income tax. Therefore, while there is no tax benefit to the transfer, there is no tax paid either. Therefore, except for the missing charitable deduction, it is unlikely that such a transfer to an HOA will have any tax paid consequences. Readers should seek counsel from competent tax professionals before taking action. It is hard and sometimes impossible to fix these transactions after they have been done incorrectly or without informed consent. -Donald W. Haney, CPA, MBA, MS(Tax)

Donations #2. There should be a way for wealthy people with no heirs to hook up with people with few assets and no benefactors. Sounds like an arrangement made in heaven. -LLP

Donations #3. I do love your letter–your office is so very helpful in their replies. Rather then leaving your home to your HOA, consider the Salvation Army to help people in need, the USO to help veterans, your local church to help people, or your local animal shelter. That is what I am doing because I seriously believe those folks need the money more then my HOA neighbors. -Jim K.

Donations #4. Now you are talking. We all now know what to do with our millions. -Karen N.

*****


View #1.
My wife and I are as much tree lovers as anyone. But this does not mean neighbors should let one or more of their trees damage adjacent homeowners’ driveways or let them shed leaves during storms (especially Liquid Ambers) that wind up in the street to block sewer gratings and flood streets and driveways. As our president pointed out, for every right there’s a responsibility. Or, there are no one-sided coins. -Andrew B.

View #2. For trees, the correct answer would be to plant the correct tree in the proper location so as to get the view that was paid for and the beauty and benefits of the trees. -Richard B.

View #3. One paragraph noted “Association Trees” however, in one association it is the lot owners’ trees that are blocking views. -Joe G.

RESPONSE: That’s why I noted that “Getting homeowners to trim their own trees is much more difficult–they tend to be uncooperative when it comes to trimming their trees. To address this issue, you better add extra legal fees to your budget.”

*****

Technology. I saw that you hired a technology expert. It seems that property management companies align themselves with one particular web provider. What that means is when an association outgrows that particular provider, they are left with 2 solutions: make due with inefficiencies or find a new property management company. Do you recommend associations own their own domain address and contract with the webmaster directly? -Stephanie L.

RESPONSE: Yes, boards should reserve their association’s domain name. Even if they don’t set up their own websites, it keeps others from purchasing the name and misusing it.

Ownership Expenses. If an association builds their own website, it requires some expense on the front end and then ongoing maintenance costs. Plus, you need someone who can update information on the site.

Management Company. Sometimes it is more convenient to assign those duties to a management company. Some management company websites allow owners to file maintenance requests through the website as well as access to financial reports related to members’ payment of dues and special assessments.

Business Decision. The bottom line is it’s a business decision on your part. Either option is fine. You have to decide which one is best for you.
Adrian J. Adams, Esq.


Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.

Donations To Associations

QUESTION: Is it possible to set up a mechanism by which older homeowners could leave their assets to their association when they pass? I have friends who are well off but have no family to leave their money to.

ANSWER: Yes, both the living and the dead can transfer assets to their associations–one more easily than the other.

Estate Planning. An association’s ability to receive donations of cash and property is sometimes found in their governing documents. Even if not explicitly spelled out, they still have that authority as corporations. That means they can receive cash and property via someone’s will. As part of their estate planning, owners can simply name their HOA as a beneficiary in their will or trust. When they pass, their assets transfer to the association. The transfer would be taxable since homeowner associations are not 501(c)(3) charitable organizations.

Charitable Organizations. Homeowners can also make transfers while they are living. The transfer would, however be subject to taxation. Even though homeowner associations are nonprofit, they are not tax deductible organizations. If an association wants to make the gifts tax deductible, they could set up a separate tax exempt Community Service Organization (CSO) with its own board of directors.

Limitations. The independent CSO could then oversee fund-raising and charitable services. A significant limitation is that the recipient association cannot receive a direct benefit from the CSO–the funds raised cannot be used for maintenance of the common areas or to supplement their reserves. . To ensure compliance with the laws governing charitable organizations, the CSA must register with the Attorney General’s Registry of Charitable Trusts which oversees them. In addition, it must annually file tax returns with the IRS and the Franchise Tax Board showing that its funds are being used for charitable purposes.

Charitable Services. For a senior community, charitable services might include transporting seniors to their doctors, changing the batteries in smoke alarms in their homes, or holding educational classes.

Thank You. Many thanks to the members of our CID lawyers organization–a group of over 70 HOA lawyers from around the State who share ideas on novice or difficult legal issues that arise from time to time. Some have experience setting up Community Service Organizations and shared their expertise on this issue.

NOTE: If readers have wealthy friends with no heirs, I’m available for adoption. It’s one of the many services we offer. -Adrian

6th ANNUAL DRM
EDUCATION SYMPOSIUM

Free Legal. Desert Resort Management will be holding its annual education symposium for board members and homeowners. I will host one of their round table discussions where attendees will be briefed on new laws and their impact on associations.

Future of HOAs. In addition, there will be two keynote speakers. Andrew Brock, Senior VP of Associa, will discuss the future of community association living and what it means for boards of directors.

Battlefield Lessons. Scott McGaugh, New York Times Bestselling Historian and Marketing Director for the USS Midway Museum, will be sharing some lessons from the battlefield such as training, building trust, and using teamwork to help unite communities.

Date & Location. The Symposium will be held at the Agua Caliente Casino Resort Spa in Rancho Mirage this Tuesday, February 7 from noon to 6 p.m. For more information and to RSVP, go to their Symposium Website.

ERICA GREATHOUSE
CHIEF TECHNOLOGY OFFICER

I am pleased to announce that Erica Greathouse joined ADAMS | STIRLING as Chief Technology Officer (CTO). Prior to joining our firm, Erica spent 25 years overseeing implementation of technology for other law firms.

For fourteen of those years, Erica served as Director of Information Technology for Cox, Castle & Nicholson, a nationwide real estate law firm.

As CTO, Erica will work with our Technology Committee to improve our firm’s legal services through technology.

Among other things, Erica will develop and oversee our e-discovery procedures, telecom operations, video conferencing, social media policies, and risk management. Erica is an exciting addition to the team.

FEEDBACK


View #1
. In 1990 my HOA was sued over a view issue. I was on the ARC and a principal witness (we won). At the depo, the opposing attorney asked me to define “view.” I responded by asking her to define view in the context of the instant case. After a minute of contemplation she blurts out, “it’s difficult to define view.” To which I added, “let the record show that opposing counsel cannot define view, so therefore, I won’t.” Semper Fi -Bob P.


RESPONSE: You highlight the problem with views–everyone has trouble defining them.

View #2. Haven’t the courts already defined a view in Ekstrom v. Marquesqa? It says a view is defined as “a view of the ocean or neighboring golf course visible in any direction from anywhere on a homeowner’s lot, inside or outside one’s house.” Further, it says “The word (obstruct) means to block from sight or be in the way of (and thus even one palm frond would block some portion of a view) and the term (view) means that which is visible to the naked eye while standing, sitting or lying down anywhere in one’s home, or anywhere on one’s lot, looking in any direction one wishes.” -Bob I.

RESPONSE: The court took an extreme position which will likely be tempered in subsequent decisions. Some lower court decisions have already shied away from that definition. I’m reluctant to join the court’s overbroad definition since it would only encourage more litigation. Will a palm frond obscuring 1% of a corner of a 180% view justify a lawsuit and a favorable decision? I don’t think so. The court’s intemperate language is too broad to be equitable in its application.

I was involved in an action where an owner sued his neighbor over view obstruction from two windows—a guest bedroom where you had to stand in a corner with your back flat against the closet to see a partial view, and a guest bathroom where you had to stand on the toilet to see the view. Under Ekstrom’s sweeping definition, the plaintiff should have won. He didn’t.

View #3. Trees should be pruned based on the health concerns of the trees, not the view concerns of the condo association. In many cities, it is illegal to top trees, as you suggested for height restrictions (as well it should be, because topping creates poor structure from defensive growth, and ultimately more cost to the association in upkeep). I want trees in my view. They create lower cooling costs, shade, and privacy. But in most cases, it seems HOAs should just plant nothing, since the plants are rarely appreciated for their natural beauty, treated for their health, nor considered worth financial investment. -Colleen M.

RESPONSE: In a perfect world, trees would only be pruned to maintain their health. Unfortunately, that is hard to balance against the rights of owners who paid a fortune for a view of the ocean. Somewhere there is a happy medium but I’m not sure anyone has found it yet.

Congrats #1. Just saw your announcement that Nathan joined your firm. Great recruit!!! I had the pleasure of working with him in Sacramento a couple years back and hold him in high regard. -Bruce R.


RESPONSE: Nathan is an outstanding attorney. Not only that, he’s a good man. I’m very happy to have him. His email address didn’t appear in last week’s newsletter. If people would like contact Nate, see his Contact Information.

Congrats #2. Congratulations on your growth! Glad however to have you back in the game. Missed your often satirical, missive/musings. -Liz D.

Congrats #3. No apologies necessary. I get so much from your newsletter that I don’t mind waiting for it. Thank you for all you do. -Diana H.

Congrats #4. Good luck to a terrific company….you have always been helpful. -Ruth H.

Congrats #5. Woo-hoo! Glad to see you’re back. Thought I’d been dropped from your list. -Robert M.

Congrats #6. Congratulations…  I quite often refer to your site for general knowledge! Oh, how I wish we had someone like you in Reno, NV. -Caroline K.

RESPONSE: Hmmmm…

Adrian J. Adams, Esq.


Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.

What Is A View?

Hi Everyone,

I apologize for the delay in my newsletter schedule. I didn’t run off and join the Foreign Legion. Instead, I’ve been busy hiring people and renting office space. We are growing.

I am staffing offices in Northern California, adding three, maybe four additional attorneys to the firm and two more staff members.

The first in a series of announcements follows my article on Protected Views.

WHAT IS A
PROTECTED VIEW?


QUESTION
: Some owners in our HOA have great views, others none at all. If the ocean is only visible from a corner of the lot and can be covered by one hand at arm’s length, is that a view? We are spending $60,000 per year on idiotic tree trimming.

 

RESPONSE: I understand the need to keep costs under control. To define a view we have to start with your governing documents.

Typical CC&Rs. View protection language in CC&Rs is never precise.  The following two provisions are typical:

…nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot…

No tree, shrub, or other landscaping shall be planted or any structures erected that may unreasonably obstruct the view from any other lot.

What is a “view” and what does “unreasonably obstruct” mean?

Dictionary Definition. Dictionary definitions of “view” are not much help:

Black’s Law Dictionary: “the outlook or prospect from the windows of one’s house.”

Dictionary.com: “View is a general word, referring to whatever lies open to sight: a fine view of the surrounding country. Prospect suggests a sweeping and often distant view, as from a place of vantage: a beautiful prospect to the south.”

Many CC&Rs include language giving the architectural committee or the board authority to determine when an obstruction is unreasonable. Older documents often do not–they provide no definition and no arbiter for determining what is reasonable or unreasonable. That’s where courts come into play.

Case Law. Following are some cases where various view disputes were addressed:

In Seligman v. Tucker (1970), the association’s CC&Rs had a view-protection clause but no standard for determining what view was protected. The court made its own determination that the view being protected was the original view when the houses were built. It decided that a down-slope neighbor who was building a second story on his house unreasonably obstructed plaintiff’s view of the San Fernando Valley. The defendant was ordered to remove his second story.

In Ezer v. Fuchsloch (1979), trees on a neighboring lot had grown such that they almost completely obstructed plaintiff’s view of the ocean. The court interpreted the view language to mean that trees and shrubs had to be trimmed to rooftop height to preserve views. Defendants argued that their 25-foot tall pine tree had an independent right to exist without being trimmed. The court found the “tree rights” argument interesting but unpersuasive. The defendant was ordered to trim all trees and shrubs to rooftop level.

In Zabrucky v. McAdams (2005), the view protection language was unclear as to whether owners could add second stories to their houses. As part of its analysis, the court found that to significantly obstruct any owner’s view of the ocean would depreciate the economic worth of their property as well as dramatically reduce their enjoyment of their home. Since much of the value of properties depended on their views of the ocean, the court broadly interpreted the CC&Rs to prohibit second stories.

In Ekstrom v. Marquesa (2008), the CC&Rs protected views by requiring all trees be trimmed to rooftop level. The board made an exception for palm trees since trimming them would kill them.

When advised by legal counsel that the board’s exception was contrary to the CC&Rs, the board adopted a definition of view that would avoid trimming most palm trees. They defined “view” to be that which is visible from the back of the house, six feet above ground level, standing in the middle of the outside of the house looking straight ahead to infinity, with nothing to the left or right of the lot lines being considered part of the home’s view.

The court rejected the board’s definition. It ruled that the architectural committee had discretion to determine whether any particular palm tree exceeding roof height in fact blocked a view, but the association did not have discretion to exempt trees that blocked views. The association had to trim palm trees even it killed them.

What Is A View? From these cases, it is clear that courts will enforce view protection language in CC&Rs. Unfortunately, they have yet to define a view. If the ocean is only visible from a corner of the lot and can be covered by one hand at arm’s length, is that a view? Probably not. The courts would likely look at those areas of a lot where owner activities primarily occur–from the patio, around the pool, and from the main windows in the house.

RECOMMENDATION. If your CC&Rs state that all vegetation must be trimmed to rooftop height, then you have no choice but to trim all common area trees to that height as often you need to. If your CC&Rs state that view obstructions cannot be unreasonable, then adopt guidelines for determining what obstructions are reasonable and budget accordingly. Getting homeowners to trim their own trees is much more difficult–they tend to be uncooperative when it comes to trimming their own trees. To address this issue, you better add extra legal fees to your budget.

NATHAN MCGUIRE
MADE MANAGING PARTNER OF
NORTHERN CALIFORNIA OFFICES


We are pleased to announce that Nathan McGuire joined ADAMS | STIRLING as Managing Partner of our San Francisco, Sacramento and Stockton offices. He and his team will handle the Firm’s growing base of Northern California clients.

“Nate” McGuire has been named Super Lawyer Magazine’s “California Rising Star” for the last 5 years running and is the recipient of an AV Preeminent Peer Review designation from Martindale-Hubbell, which signifies the highest level of excellence.

In addition to extensive experience as general counsel to common interest developments, Nathan has broad experience in real estate subdivision development, purchase and sale agreements, escrow issues, restrictive covenants, easements, deeds, and other issues affecting real property.

Nate is an active member of the Community Associations Institute and the Building Industry Association and a frequent author and speaker on community association topics. He is also a delegate to the California Legislative Action Committee and serves on the Executive Committee as Vice Chair.

Nathan graduated with distinction from St. Mary’s College with a BA in English and Philosophy. He earned his Juris Doctor from U.C. Davis School of Law.

You can reach Nathan at: NMcGuire@AdamsStirling.com.
Adrian J. Adams, Esq.


Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.

Christmas Gifts for Board Members

QUESTION: Our association’s corporate counsel gives a seasonal gift to board members. I’m uncomfortable receiving them and wonder whether it is ethical for a law firm to give gifts to directors and ethical for directors to accept them.

ANSWER: For a law firm to give gifts to clients at the end of the year as a token of appreciation is common and acceptable. We do the same. The gifts, however, must be appropriate.

Appropriate Gifts. Giving directors an Alaskan Cruise or a new car or cash would, in my opinion, be inappropriate. Acceptable gifts are more along the lines of tickets to a baseball game, a fruit basket, a nice bottle of wine, dinner at a restaurant, etc.

NOTE: If you feel awkward receiving such gifts, send them to me. I can recycle them.

INVOLUNTARY DISSOLUTION
OF CORPORATIONS


A
law took effect January 1, 2016 making corporations subject to administrative dissolution if they have been suspended by the Franchise Tax Board or the Secretary of State for at least 48 months. (AB 557.)

Many boards are often unaware their association has been suspended because their communities are small and self-managed or frequently change management companies.

In addition to the penalties associated with suspension, dissolution could have a significant financial impact because the cost to reincorporate is much greater than a simple revivor.

RECOMMENDATION: All boards should check their association’s corporate status on the Secretary of State’s website. If you have been suspended, you should immediately take steps to revive your corporation. If you need assistance, contact me.

CAN RESERVES PAY
FOR A LANDSCAPE DESIGNER?


QUESTION
:
Our building is thirty years old and our landscaping is at the end of its lifespan. All homeowners agree it needs to be replaced. Many want to hire a landscape designer to design an attractive low-water landscape. The designer’s fee is $25,000. Landscaping is not currently in our reserve study. However, the board ordered a new study and landscaping will be added. Can we pay for the designer out of our reserves?

ANSWER: Yes, you can pay for a designer from your reserves. It is a legitimate part of the cost of replacing your landscaping.

Missing Component. Landscape replacement is often overlooked by associations when putting together a reserve study. Belatedly adding the component is within the board’s authority and does not require a vote of the membership.

Impact on Reserves. Using reserve funds to replace your landscaping means your existing funds will dip. Depending on the adjusted level, you may need to increase your annual contributions to keep the funding at safe levels for future component replacements.

RECOMMENDATION: Work with your reserve analyst to revise your reserve study to establish proper future contributions. Otherwise, special assessments may be in your future.

DIRECTOR’S VOTE
A PROTECTED ACTIVITY


As
frequently happens, there are winners and losers when a board votes on an issue. Normally, the vote is recorded in the minutes and the board moves to the next agenda item.

In a case published a few days ago, the losers wouldn’t let go of an issue. In a duly noticed meeting, a 9-member board voted six to three to renew a contract with the association’s management company. Three directors who voted against the contract sued the six directors who voted in favor.

The association’s attorneys moved to dismiss the action with an anti-SLAPP motion. The court of appeal agreed and ruled that a director’s vote at a board meeting constitutes a protected activity under the anti-SLAPP statute.

NOTE: This was a smart decision by the court. A ruling in the other direction would have opened the door for losing directors in all future votes to go running into court to arbitrate their disagreements. This would have been an enormous waste of association and court resources and would have paralyzed HOA operations. Kudos to the court on its decision. (See Lee v. Silviera.)

Congratulations to attorneys Fred Whitney and Constance Trinh of Neuland, Whitney & Michael for their win on behalf of Friar’s Village.

THANK YOU!


A sincere thank you to all my readers for your support this year. Your newsletter questions and feedback have been delightful.

Clients. In addition, I am grateful for our many clients, both long-term and new. Many of you have been with me for over 20 years. In addition, new clients join the firm each year and this year over 130 associations were kind enough to select us for their legal services.

Attorneys. Because of your support, ADAMS | STIRLING has grown to 17 exceptional lawyers who are dedicated to representing residential, mixed-use, and commercial associations.

BEST WISHES. May you and your families enjoy the holidays and have a New Year filled with peace, prosperity and happiness. From all of us at Adams Stirling, Merry Christmas and Happy New Year. See you in 2017!
Adrian J. Adams, Esq.


Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email.

Member Contact Information

With the passage earlier this year of Senate Bill 918, associations must annually provide written notice to the membership of their obligation to provide the following information:

1. The address or addresses to which notices from the association are to be delivered.

2. An alternate or secondary address to which notices from the association are to be delivered.

3. The name and address of a legal representative who can be contacted in the event of the owner’s extended absence.

4. Whether the separate interest is owner-occupied, rented out, or vacant.

If an owner fails to provide contact information, the property address shall be deemed to be the address to which notices are to be delivered. (Civ. Code §4041.)

See sample form prepared by senior attorney Wayne Louvier.

AIRBNB RENTALS
ALONG THE COAST


Airbnb is an online service that connects short-term renters (STRs) with people who have rooms or homes to rent on a daily or weekly basis.

Hotels & Cities. The site has grown spectacularly since its founding in 2008 so much so that 50,000 renters per night are using Airbnb. This is costing hotels $450 million per year, depriving cities of $226 million in tax revenues per year, and removing tens of thousands of homes from the long-term rental market.

Impact on Associations. HOA owners and investors have jumped into the lucrative market and are using Airbnb to create a steady stream of weekend rentals in violation of their CC&Rs. Such rentals significantly burden associations, some of which resulted in litigation. The court of appeals  recognized the burden created by STRs:

That short-term renters cost the Association more than long-term renters or permanent residents is not only supported by the evidence but experience and common sense places the matter beyond debate. Short-term renters use the common facilities more intensely; they take more staff time in giving directions and information and enforcing the rules; and they are less careful in using the common facilities because they are not concerned with the long-term consequences of abuse. (Watts v. Oak Shores.)

Other problems include security breaches, vandalism, litter and higher maintenance costs.

Typical CC&R Restrictions. STR restrictions are understandable since associations are intended to be stable communities with homeowners occupying units. To that end, almost all CC&Rs prohibit STRs. They often contain language prohibiting hotel-like use of residences as well as requirements that rentals be for at least 30 days, six months or one year.

Coastal Commission. The enforcement of STR restrictions has taken a twist for associations along the coast. The hyperactive California Coastal Commission has taken steps to prevent associations from enforcing their CC&Rs by threatening large, punitive fines.

The Coastal Commission argues that its heavy-handed approach increases the public’s access to the water. My firm obtained documents from the Coastal Commission where they cite tenuous authorizing language under the California Coastal Act for their actions. We reviewed the law and flatly disagree with their interpretation.

RECOMMENDATION. If your association gets a “cease and desist” letter from the Commission, you should immediately contact legal counsel. If you have questions about restricting short-term rentals, contact me.

Thank you to senior litigation attorney Ronald St. Marie for his research on this issue.

HIRING FOR OUR
LOS ANGELES OFFICE

 

I am looking for an attorney for my Los Angeles office to work as general counsel with community associations.

If you have at least 5 years experience in litigation or real estate transactional work and are interested in making a move, contact me at 800-464-2817 or by email.

FEEDBACK


Smoking Weed #1
. Your newsletter is right on about pot smoking in the common areas. We follow your directions with our residents. We notify them, with a polite letter, and then help them, if appropriate, to seal their front doors so they can enjoy their pot without disturbing their neighbors or the common area. Respecting their rights, as well as the rights of their neighbors really works well. Excellent advice, as always. -Bill B.

Smoking Weed #2. I don’t like California’s voter initiative ballot proposals. We pay state legislators to make laws not poorly informed voters. The governor of Colorado was quoted recently as saying that the marijuana initiative in Colorado, which he supported, was one of the worst decisions he made in his political career. I wonder if the people in this state will ever wake up and smell the Folgers and cease acting as an ad hoc legislature. -John A.

Smoking Weed #3. As attorneys you a great. As physicians you fail. For cancer patients, among several terminal illness, Cannibus must be through oral applications. Please stick to your specialties. -Don G.

RESPONSE: The next reader agrees with my diagnosis.

Smoking Weed #4. Have to comment on your blurb about marijuana smoking. Most medicinal users will not smoke marijuana. That is an old-fashioned concept. Today, most doctors will prescribe pills containing isolated THC or recommend using it in cookies or other bakery products. Seldom will you see someone smoking medicinal pot in public areas. -Walter D.

Smoking Weed #5. As a new owner and board member your newsletter has helped me considerably. In our HOA we don’t have a problem with public smoking of marijuana. However, we do have one owner who smokes it heavily in his unit. He has been asked to smoke with his windows open so as not to bother the other owners. We don’t know if he is complying with this request or not but the hallway reeks with the smell of marijuana all day long. Any suggestions? -Phil H.

RESPONSE: Residents have a right not to be assaulted by the smell of pot. You have a number of options, see controlling nuisance odors.

*****

My story about a condo president helping elect our next U.S President brought a mix of responses. Half were happy and half not so. Following is a sampling:

President #1. Once again your newsletter makes my Sunday morning. I especially liked the story about how Trump found a condo executive to guide him into the presidency. You are correct about the challenges of running an HOA. Ever onward!!!! -William B.

President #2. “Thanks to her steady hand…” Seriously? Or satire? -Greg P.

President #3. If the President-Elect of the U.S. can be totally unqualified and lacking in knowledge required to do the job, why should it be any different for an HOA president? -Nancy K.

President #4. Loved the Kellyanne Conway story. Forwarded it to my brother who lives in a small community in AZ. Thought he would enjoy the irony of the story. -Judy B.
Adrian J. Adams, Esq.


Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email.

Smoking Weed

QUESTION: Our association prohibits smoking in the common areas. Does the legalization of marijuana mean that our rules no longer apply?

ANSWER: With the passage of Proposition 64, everyone is giddy about lighting up a Doobie. They need to read the fine print before doing so.

Limitations. Proposition 64 does not invalidate existing laws, ordinances or restrictions against smoking. Pot smokers cannot light up in restaurants, theaters, schools, daycare centers, airplanes, or public places. If your association restricts smoking in the common areas, it applies to all smoking, including recreational and medicinal use of marijuana.

Medicinal Users. I don’t think there will be a problem with recreational smokers. It’s been my experience that medicinal users can be challenging because they feel entitled. They believe a doctor’s note gives them the right to smoke anywhere, anytime. They are mistaken. Pot smokers do not have a right to negatively impact those around them. If a user is in the common areas and wants their medicine–they can eat a brownie. If they feel the need to smoke–they can find a place without restrictions.

RECOMMENDATION: If someone lights up in the common areas, don’t snatch the joint from their fingers. That will lead to an altercation. Send a letter politely advising them of the smoking restriction. If they refuse to comply, fines and suspension of privileges can be imposed (following a duly noticed hearing). If that doesn’t work, have your association’s lawyer send a letter. If all else fails, file a lawsuit. Sad to say, some people need to be hit with a baseball bat before they get it.

CAMERAS AND
BINOCULARS


QUESTION
: Our home sits in the sight line of the president of our HOA. As a result, we are getting letters to correct the smallest violations on a monthly basis. Our surveillance cameras caught him with binoculars peering at our property. Can I sue for harassment?

ANSWER: That’s awkward–his binoculars and your cameras peering at each other. If the president is truly harassing you, yes you can sue.

In an unpublished case decided in July of this year, an association president harassed a resident by publicly disparaging the resident, improperly towing his guest’s car, sitting outside his house with a video camera, refusing to allow needed repairs, and a number of other improper actions.

The resident sued the association and its president for intentional infliction of emotional stress citing 19 separate incidents. The trial court dismissed the action but the court of appeal reversed. The appellate justices made it clear that directors can be sued for their bad behavior. (See Boswell v. The Retreat Community Assn.)

RECOMMENDATION: Hire a lawyer and start with a letter to the board. If it causes the president to back off, you can avoid costly and uncertain litigation. Litigation is uncertain because a court could easily find that you had numerous rules violations and the president was properly giving notice of those violations.

CONDO BOARD PRESIDENT
MAKES HISTORY


Here is an interesting bit of trivia. We can credit (or blame) a condo board president for making Donald Trump President of the United States.

Kellyanne Conway is a campaign manager, strategist, and pollster. Trump met Conway when she served on the condominium board at the Trump World Tower in Manhattan.

According to a Washington Post interview, Trump would show up at board meetings to hear residents’ concerns. He liked how Conway handled board meetings and followed her career managing political campaigns.

When the time was right, Trump convinced Ms. Conway to run his campaign. Thanks to her steady hand, Mr. Trump is now choosing his cabinet and meeting world leaders.

NOTE: I’ve known for years that if you can successfully run a condo board, you can do anything.

4th ANNUAL
ABC’s of HOAs


HOA Organizers is hosting an event for board members to learn, interact, and meet with industry professionals.

I will cover new laws impacting associations. Demetrios Xanthos will review insurance issues. Neda Nehouray will address board management responsibilities and procedures. Robert Nordlund will provide tips for avoiding special assessments related to reserves and large repairs. There will be Q&A following each session.

This is a free event with a catered lunch and raffle prizes. The program will be held Saturday December 10, 2016 from 11:00 a.m. to 3:30 p.m. at the beautiful Olympic Collection, 11301 Olympic Blvd #204, Los Angeles 90064.
Please RSVP Christina Peterson by email or (818) 778-3331.

In addition, this year’s event will be streamed live on Facebook. If you are unable to attend, you can log onto the HOA Organizers Facebook page around 12 noon to watch the event.

FEEDBACK


I want to thank everyone for their positive feedback on our new website. Below are is a sampling:

Website #1. I checked out your new website and found it to be as gorgeous as promised in your newsletter. Really excellent. Congratulations on a job well done. I’ve always loved your website and considered it an excellent resource both for the public and for attorneys like me who don’t specialize in HOA law. Now it’s a pleasure to look at, too. -Susan K.

Website #2. I love your new website and all the wonderful information you provide–even here in Boynton Beach, Florida. -Gail S.

RESPONSE: It may be time for me to open an office in Florida.

*****

Failure to Investigate. In Palm Springs Villas v. Parth, the president was completely unqualified to be president. She should have familiarized herself with the CC&Rs, bylaws, and other documents prior to her first board meeting. Ditto the financial statements. I don’t know who the lender was but the people making the loan should have done their own due diligence. Moreover, what were the rest of the board doing while this was going on? -John A.

RESPONSE: I agree. Fellow directors should have removed her as president long before. They could have avoided costly litigation.

Adrian J. Adams, Esq.


Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, Boards should call (800) 464-2817 or email.

Clubhouse Music Fees

QUESTION: We play music in our clubhouse and have a movie night each week. One of our members said we have to pay a license fee because everything is copyrighted. Is that true?

ANSWER: It depends. Congress allowed for limited exemptions to the licensing rule that clubhouse music could fall into (such as playing a radio or television in a public place if the association does not charge a fee to watch or listen to the performance). Following are some of the guidelines for deciding whether you qualify.

Intellectual Property. Music and movies are the intellectual property of those who create and copyright them. If you authorize the “performance” of their work, you are required to pay a fee. This applies to radio and TV stations, restaurants, department stores, etc. It also applies to community associations that put on “public” (17 U.S.C., §101(1)) performances of music and movies in their clubhouses.

Clubhouse Considered Public. A clubhouse is considered a public forum within the development. (Fermata Int’l Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp. 1257 (S.D. Tex.1989); Damon v. Ocean Hills.) One condominium association was found in violation when it played copyrighted songs for a dance held in its clubhouse where it did not charge a fee to attend but asked for a donation, which the court deemed an admission fee. (Hinton v. Mainlands of Tamarac, 611 F.Supp. 494 (S.D. Fla. 1985).)

Clubhouse Movie Night. Unless license fees are paid, clubhouse movie nights for members violate copyright laws. The Motion Picture Licensing Corporation posted the following on its website:

  • Motion pictures and other audiovisual works that are available for rental or purchase are intended for personal, private, home use only. If you wish to show the work in any other place, you must have a separate license that specifically authorizes the public performance of that work. These rules are detailed in the federal Copyright Act, as amended, Title 17 of the United States Code.
  • According to The Copyright Act, only the copyright owner holds the exclusive right, among others, “to perform the copyrighted work publicly.” (Section 106)
  • The rental or purchase of a motion picture or other audiovisual work does not include the right to perform the copyrighted work publicly. (Section 202)
  • Films may be shown without a separate license in the home to “a normal circle of family and its social acquaintances” (Section 101) because such showings are not considered public.
  • Films may be shown without a license to non-profit educational institutions for face-to-face teaching activities because the law provides a limited exception for such showings. (Section 110(1))
  • All other public performances of motion pictures and other audiovisual works are illegal unless they have been authorized by license. Even performances in semi-public places such as clubs, lodges, factories, summer camps and schools are public performances subject to copyright control. (Senate Report No. 94-473, page 60; House Report No. 94-1476, page 64)
  • Both for-profit organizations and non-profit institutions must secure a license to show films, regardless of whether an admission fee is charged. (Senate Report No. 94-473, page 59; House Report No.94-1476, page 62)

Licensing. Associations can purchase annual licenses for music from ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music Inc.), UMG (Universal Music Group), RIAA (Recording Industry Association of America), and SESAC (Society of European Stage Authors and Composers). A license from any of the above organizations only applies to copyrighted material in that organization’s collection. Accordingly, it may be necessary for an HOA to obtain licenses from more than one organization. For movies, the licensing organizations are MPLC (Motion Picture Licensing Corporation) and Criterion Pictures.

Penalties. Inadvertent violation of copyright laws can result in statutory damages ranging from $750 to $30,000 per violation plus attorneys’ fees and costs. Intentional violations can result in damages up to $150,000 per violation plus attorneys’ fees and costs.

RECOMMENDATION: The laws are wide-ranging and the exceptions can be confusing. Boards should consult legal counsel to see if they qualify for an exception.

DIRECTOR’S FAILURE
TO INVESTIGATE


The business judgment rule protects directors from personal liability provided they conduct a reasonable investigation (due diligence) before making a decision.

In a recently published case, the Court of Appeal found that board president Edna Parth was subject to personal liability for failing to investigate matters before taking action. The court was disturbed that, among other things, she:

1. Hired a roofing company without soliciting bids, checking references or licensing, without verifying insurance, or consulting management or legal counsel. The company proceeded to perform defective work that required additional repairs.

2. Signed promissory notes for $900,000, $325,000 and $550,000, secured by the association’s assets, receivables and property. Parth later testified that she had not reviewed the CC&Rs or bylaws and did not know whether she had authority to sign the notes and was not aware they needed membership approval.

3. Signed a five-year contract with a landscape company and later admitted she did not know if she had authority to sign it. She testified that her understanding of her authority under the bylaws was “none.”

The court noted that the failure of a director to conduct due diligence is a breach of their fiduciary duty. In addition, conduct contrary to the governing documents may fall outside the business judgment rule. The court commented that directors cannot close their eyes to matters as basic as the provisions of the CC&Rs and bylaws and at the same time claim they exercised business judgment.

RECOMMENDATION: Board members should make sure their minutes reflect that they investigated and deliberated on issues before making a decision. In addition, they should consult legal counsel, management, and consultants as may be appropriate. Finally, they should have a working knowledge of their governing documents (and then follow them). To read the case, see Palm Springs Villas II HOA v. Parth

NEW
ADAMS STIRLING
WEBSITE


I am pleased to announce a complete redesign of our firm’s website. It is very classy and provides everyone with an easy way to get to know us.

All of my attorneys are top-notch and they’re friendly. We provide a wide range of legal services which are described on the site.

We also provide significant online resources to the public at no cost.

Check out our new website. I think you will like it.


Board Meeting Agendas #1. I LOVE this newsletter. As a former board member of an HOA, I wish I had had this when I served. -Suzanne K.

Adopt a Highway #1. Have there been any issues regarding limiting this program or halting it altogether due to lawsuits? We live in a community that has become unsightly due to the litter lining the major highway which runs through town. I have heard rumors the program can’t do clean ups anymore because of lawsuits. If this is not true, I will contact our city council and find out why it is not being implemented. Are negotiations possible between Cal Trans and local communities to prioritize litter clean-up efforts? -Allan S.

RESPONSE: I’m not aware of the rumor and there is no mention of it on the State’s website. By all accounts, the program is thriving. You should contact program representatives for more information.

Adopt a Highway #2. Congratulations to Senator Stirling! I remember the days when highways were littered. It was so bad you could not see the forest for the trash. Nice to know there is one lawmaker who actually did some good. -Finn M.

Adopt a Highway #3. Congratulations, Larry. That was just one of your great pieces legislation. -Don B.

Adopt a Highway #4
. Thank you Adrian for your adopt-a-highway recognition. Credit for the success of the legislation also goes to Peter Morin, founder of the Adopt-A-Highway Corporation headquartered in Orange County. -Larry Stirling
Adrian J. Adams, Esq.

 

 


Adrian J. Adams, Esq.
ADAMS | STIRLING
A Professional Law Corporation

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.

Board Meeting Agendas

QUESTION: Section 4930 of the Civil Code provides for an agenda to be included with notices but it does not provide a definition of agenda or what the bare bones requirements for one are. I hope your firm will be able to expound an answer.

ANSWER: There are two statutes that refer to agendas:

Notice of a board meeting shall contain the agenda for the meeting. (Civ. Code §4920(d).)

[T]he board may not discuss or take action on any item at a nonemergency meeting unless the item was placed on the agenda included in the notice that was distributed…” (Civ. Code §4930(a).)

Legislators often leave a lot unsaid when they enact laws. They either assume we know what they are talking about or they misjudged things. If nobody can agree on what a statute means, the courts sometimes weigh in. In this case, I don’t think we need a judge to tell us what an agenda means.

Definition. Black’s Law Dictionary defines “agenda” as “items of business or discussion to be brought up at a meeting.” I checked Robert’s Rules of Order but didn’t find anything useful. I then checked the Complete Idiot’s Guide to Parliamentary Procedure and found the following:

If you really want to manage your meeting, you need an agenda. With an agenda, the specific items that are expected to come up at a meeting are placed into the order of business.

How detailed should an open meeting agenda be? It needs to contain enough information so members can easily understand what will be discussed at the board meeting.

Maintenance Issues. For example, if the board intends to discuss installation of a new landscape sprinkler system, reroofing a building, and repainting the clubhouse, a generic agenda item called “Maintenance” is not enough. No one reading the posted agenda will have any idea what that means. The agenda should list each item of business. That way, members can decide if they want to attend and give their opinions during open forum. See sample agenda for open meetings.

Executive Session. Notice of executive session meetings must also contain an agenda. (Civ. Code §4920(d).) Because executive sessions are confidential and topics are generally noted in open meeting minutes (Civ. Code §4935(e)), agenda descriptions are more circumspect. See sample agenda for executive sessions.

RECOMMENDATION. To learn more about parliamentary procedure, I don’t recommend buying the unabridged Robert’s Rules of Order. All you need is a simplified version that covers the basics. Amazon.com has a variety of materials you can purchase.

RENTAL
AGREEMENTS


QUESTION
: Our CC&Rs require that any owner who rents their unit have a signed rental agreement; that the renters provide contact information; that the lease be no less than 12 months; that the renters sign and acknowledge the rules, etc. Our property manager did not request a lease agreement from new renters because they were family members of the owner. If they admit to paying rent to their parents, are they not renters?

ANSWER: If they pay rent, they’re renters. And yes, they need to comply with your rental policies. BTW, it sounds like you have a good set of policies.

SEN. LARRY STIRLING
HONORED


Most people know that Senator Stirling authored the Davis-Stirling Act. Few know that he is also the father of the highly successful Adopt-A-Highway program.

Twenty-five years ago, Senator Stirling authored and then championed a bill to address the problem of highway litter. His concept was simple–authorize a public/private partnership to allow individuals, organizations, and businesses to help maintain sections of California’s highways.

To date, more than 120,000 Californians have cleaned and enhanced over 15,000 miles of roadside by removing litter, planting trees and wildflowers, removing graffiti, and controlling vegetation.

In a 25th Anniversary Celebration of the Adopt-A-Highway program, Senator Stirling was honored for his work and presented with a framed copy of the original bill he authored.

We should all thank Senator Stirling for fathering a concept that has enhanced our highways at no cost to taxpayers. His legislation is so effective, it has been adopted by 21 other states across the nation. Congratulations Senator Stirling!

HIRING FOR OUR
NORTHERN CALIFORNIA OFFICE
 

We are looking for an attorney for our Northern California office to service clients in San Francisco and the surrounding region.

We seek an attorney with at least 5 years experience advising HOA boards.

Please contact Adrian Adams at 800-464-2817 or by email.

Adrian J. Adams, Esq.
Adrian J. Adams, Esq.
ADAMS | STIRLING
A Professional Law Corporation

We are friendly lawyers. Boards and managers can reach us at (800) 464-2817 or info@AdamsStirling.com.

Adverse Possession of Common Areas

An interesting case was decided last week. Without approval, a homeowner built a retaining wall on 6,000 square feet of common area. Because of the rural nature of the development, the trespass went undiscovered for several years.

When it was discovered and demands went unheeded, the association sued. The homeowner argued he had acquired ownership of the common area through adverse position.

Under California law (Code Civ. Proc. §§318, 325, 328), a person can acquire legal ownership of another’s land without paying for it if he can prove the following:

1. Possession of the land was under claim of right or color of title;

2. Possession was actual, open, and notorious;

3. Possession was adverse and hostile to the true owner;

4. Possession was continuous for at least five years; and

5. The person paid all taxes assessed against the property during the five-year period.

Payment of Taxes. In a common interest development, payment of all taxes on disputed common area is impossible for a claimant to establish.

Although common areas have value, they are not separately assessed for taxes. Their taxable value is reflected in the increased market value of members’ properties created by common area pools, clubhouses, riding trails, parks, etc. Property taxes on common areas are, therefore, billed to and paid by all homeowners individually, not by the association. (Lake Forest CA v. County of Orange.)

For example, if there are 100 lots, a member claiming adverse possession of common area pays his 1/100 share of the taxes through the increased value of his property. The remaining 99/100 share of the tax, however, is paid by the other 99 homeowners through their own property taxes. As a result, the fifth element of adverse possession cannot be met by a claimant. Such was the ruling in Nellie Gail Ranch OA v. McMullin.

Congratulations to Fred Whitney and his team at Neuland, Whitney & Michael for winning this case for Nellie Gail Ranch.

STOCK CO-OP LEASE
VERSUS CONDO CC&RS


QUESTION
: On your website, you provide a list of governing documents for each type of common interest development. Why do stock co-ops not have CC&Rs? Does a proprietary lease substitute for CC&Rs since they both describe the rights and obligations of the membership?

ANSWER: My website chart does not include CC&Rs for stock cooperatives because they don’t exist. The functional equivalent is the proprietary lease or occupancy agreement.

Different Approaches
. A co-op lease and condo CC&Rs both accomplish the same task but in entirely different ways. It’s like an automobile and a horse. They both carry people from one place to another but they burn different fuels, emit different exhaust, and move at different speeds.

Condominiums. In a 100-unit condominium development, members own their units. In addition, each owns a piece of the common areas. CC&Rs (equitable servitudes) are recorded against each of the 100 condominiums and binds their owners.

Stock Co-op. In a 100-unit stock cooperative, there is only one owner–the corporation. The corporation owns the entire development including the units (called apartments). Members cannot buy an apartment. Instead, they buy stock in the corporation. A proprietary lease or occupancy agreement creates a landlord-tenant relationship between the corporation and the shareholder that gives the person the right to occupy an apartment.

Enforcement Mechanism. If a shareholder breaches the occupancy agreement, he can be evicted from the property. Condo associations often wish they had that kind of authority but they don’t. They cannot evict a member because the association does not own the units. At best, an association can fine, suspend privileges, and seek judicial enforcement of its restrictions.

Conversions. Stock cooperatives are primarily an East Coast phenomenon. Very few were built in California because condominiums are a superior form of ownership when it comes to loans and refinancing. As a result, condominiums have higher market values. That is why so many co-ops have converted to condos over the years. To see the different documents for each form of ownership, see governing document chart.

FEEDBACK

30 Years of Records. Regarding the president who died, I wholeheartedly agree, serving on an HOA board can be detrimental to a director’s health. If the stress doesn’t kill you, a homeowner might. Fortunately, I saw the light and after 8 years I am no longer on my HOA board. There is a burn-out factor. It’s taken me about a year before I could attend a board meeting. -Alice O.

Is it Legal? I believe there was a typo in the Davis-Stirling.com Newsletter last week. You mentioned the “buck-a-coor” program but we were hoping that you meant the “buck-a-Coors” program. This sounds like a very worthwhile and valuable program, especially since we are currently paying $2.49 for a 24 ounce can of Coors. Please provide more information on the exciting “buck-a-Coors” program. -Richard W.

RESPONSE: My nimble fingers must have felt the same way. They immediately went for the buck-a-Coors program instead of CAI’s buck-a-door for their legislative advocate. One could only hope.

Adrian J. Adams, Esq.

Adrian J. Adams, Esq.
ADAMS | STIRLING
A Professional Law Corporation

We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or info@AdamsStirling.com.

Is It Legal?

QUESTION: Can HOAs legally contribute to CAI’s buck-a-door program??

ANSWER: Yes they can. The program is not a political action committee and does not contribute to any political campaigns. Instead, it pays for a consumer advocate hired by the Community Associations Institute’s California Legislative Action Committee (CAI-CLAC).

Annual Onslaught. Each year, 2,000 to 3,000 bills are introduced into the legislature and CLAC tracks those bills affecting associations. The committee is composed of homeowners, managers, and attorneys from around the state dedicated to protecting and improving California’s associations.

Advocacy. I’m familiar with how CLAC works because I am a member. I attend regular meetings where we discuss legislation and decide which bills to support, modify or oppose. We then work to educate key legislators on the impact of a particular piece of legislation. When we need to, we alert our network of readers and ask for letters of support or opposition.

Successes. This year, CLAC successfully opposed a number of bills. Our biggest success was the defeat of AB 1720 (the Hindenburg). The ill-conceived bill would have driven up HOA legal fees throughout California and put volunteers at risk by allowing adverse legal counsel to attend meetings.

Buck-A-Door. Through the buck-a-door program, associations contribute one dollar per residence per year to support CLAC’s valuable work. The money pays for our consumer advocate, printing, postage, and other incidentals needed for CLAC’s operations.

RECOMMENDATION: Associations should build into their their budgets an annual donation to CLAC. To make a donation, see Support CAI-CLAC or CLAC’s Pledge Form. I encourage everyone to sign-up.

30 YEARS OF
RECORDS


QUESTION
: Our manager/board president died. Meeting agendas, financial documents, etc. were never published in 30 years. The records are in her home. Her husband still lives there and seems cooperative. How and who should be asking for the records? Can any homeowner ask for them or should we obtain a lawyer?

ANSWER: I’m sorry for your loss. Serving on a board will shorten a person’s life. So will managing an association. Your president did both.

Lawyers. There is no need to hire a lawyer. The nicest person on your board should make a friendly request to the husband. Offer to help find the records and move them. He may be happy to get rid of them.

Records Policy. Not all the records need to be kept. Your board should adopt a Records Retention Policy. Once that is in place, you can sort through and dispose of most records. For example, you want to keep all minutes from the beginning of time. Financial records, expired contracts, etc. older than seven years can be shredded.

RECOMMENDATION. To avoid any premature deaths to your members, you should hire a management company. Most are good at handling stress. They can also assist with recordkeeping. Whenever possible, you should scan and save your records electronically. It saves trees, eliminates storage, and makes it easy to find documents.

MISSING BOARD
RESOLUTION


QUESTION
: We have a board resolution dated April 17, 2013, signed by the secretary. But there is no mention of this resolution either in the agenda or the approved minutes for this date. I am curious if the resolution is in force nonetheless.

ANSWER: Yes, the resolution is likely in force. The fact that it was signed by the secretary and is part of your corporate records indicates it was authorized by the board. Another indicator of authenticity is if the resolution has been enforced by prior boards.

If you wish, you can reaffirm the resolution at your next board meeting and include it in the minutes. If you do, you should add background information about it being passed in 2013 and the board is simply correcting the record. If, on the other hand the current board is unhappy with the resolution, it can vote to rescind it.

 

FEEDBACK


Humor #1
. While I have to admit I got a good laugh, that was a pretty cold shot about San Francisco being a foreign government. I excused your comment as being some form of latent jealousy because we have the Giants, 49ers, and Warriors. But I still read your blog and enjoy it. -Anonymous

Humor #2. Each week, I think to myself that your commentary can’t get any more humorous, but this week topped them all! Thanks for taking very serious subjects and adding a bit of levity to the mix! -Maryann M.

Humor #3. That was hilarious. Made me laugh. -Laura W.

*****

This concerns enforcement of Burbank’s smoking ordinance.

Smoking. Your article may lead members to believe they can sue one another for violating local ordinances, but that would not be possible unless a private right of action clearly exists under the local ordinance, which would be very unusual. However, an HOA member victimized by second-hand smoke can still bring a cause of action against the perpetrator for public or private nuisance, intentional infliction of emotional distress, personal injury, or other tort, supported by facts that include a defendant’s violation of local smoking ordinances–particularly if the defendant has been cited for the violation. Thanks again for the valuable service you provide. –Dana Rosenberg, Attorney at Law

*****

This concerns a board’s ability to continue a meeting once it loses quorum.

Meeting Quorum. The information you shared in the newsletter is correct. As with many things, there is more than one correct answers. Parliamentary Procedure, and usually Roberts Rules of Order Newly Revised (RONR), are the meeting procedures that deliberative assemblies should apply. RONR does not permit business to continue once the chair is aware that a quorum no longer exists. (RONR §40 Quorum; page 348; line 14-23.) -Victoria C.

RESPONSE: Not to get presidential but statutes trump parliamentary procedures. The Corporations Code does not make an exception for Robert’s Rules when it states a board can continue meeting once quorum is present notwithstanding a subsequent loss of quorum. (Corp. Code §7211(a)(8).) Moreover, the Davis-Stirling Act does not require the adoption of parliamentary procedures for board meetings, only membership meetings. (Civ. Code §5000(a).) As a result, Robert’s Rules never enters the picture. Having said that, boards should end their meetings when they lose quorum, unless there is an urgent matter that needs attending.

Adrian J. Adams, Esq.
Adrian J. Adams, Esq.
ADAMS | STIRLING
A Professional Law Corporation

We’re friendly lawyers–boards and managers can reach us at (800) 464-2817 or info@AdamsStirling.com.