Balcony Dry Rot Repairs

Feb 14, 2021 0 Views 0 Comments

Questions continue to come in about balcony inspections. To understand the importance of inspections, we start with a small science lesson. -Adrian

QUESTION: You keep referring to dry rot. What is it? Why do we have to inspect the waterproofing if it doesn't stop wood from rotting when it's dry?

ANSWER: The term "dry rot" is a misnomer. Wood does not rot when it's dry. For decay to occur, moisture must be present before fungi can feed on the wood.

Nature's Life-Cycle. There are 144,000 species of fungi, which includes yeasts, mildews, molds, and mushrooms. They are essential in the making of bread, wine, beer, and cheese. They also have medicinal uses, such as in the making of penicillin. They are part of nature's life-cycle and have an important role in breaking down organic matter and returning oxygen, nitrogen, and phosphorus into the soil and the atmosphere.

In the Air. Like viruses and bacteria, fungal spores are microscopic and travel through the air. The spores act as seeds which grow when they land on moist wood products. When they plant themselves, they feed on the wood's cellulose. Cellulose is what gives wood its strength. As the fungi consume cellulose, the wood weakens. In nature, that's a good thing. In balconies and other elevated structures, it's not.

Waterproofing. Without moisture, fungi can't grow. Thus, the importance of keeping all waterproofing systems well-maintained. That is why the Davis-Stirling Act requires a thorough inspection of waterproofing components such as flashings, membranes, coatings, and sealants. (Civ. Code 5551(a)(1).)

Repairs. Fungi (like termites) spread throughout a structure as they feed on wood. As a result, dry rot can be difficult to treat. To stop the destruction, all decayed wood and fungi must be removed. The longer it goes untreated, the weaker the wood becomes until it collapses without warning.

RECOMMENDATION: Conducting inspections sooner rather than later will save money. If dry rot is caught early, it can be eradicated before it spreads too deeply into a structure. The first inspection must be completed by January 1, 2025. (Civ. Code 5551(i).) Waiting until December 2024 to inspect elevated structures allows any existing infestation to spread. The further it spreads, the more costly the repairs. See our January 31 Newsletter for a list of Inspection Companies.


QUESTION: Last week's newsletter said that balconies over garages still need their railings inspected. I didn't think an inspection was required if the balcony did not extend out from the building. -Matthew S.

ANSWER: I should have been more complete in my response. When a balcony or walkway does not extend from the building because it is fully supported by an underlying structure such as a garage, it does not need invasive 9-year cycle of inspections.

Reserve Study Inspections. However, the railings and waterproofing elements still need to be inspected every three years by the association's reserve study provider (assuming the governing documents assign repair and replacement responsibilities to the association, which most do).

RECOMMENDATION: If boards have not already done so, they should have legal counsel review their governing documents and provide a legal opinion clearly defining maintenance, repair and replacement responsibilities when it comes to exclusive use railings and waterproofing systems on elevated structures.


QUESTION: What if the balcony is attached to a townhouse? Isn't that the responsibility of the homeowner? Does the association still need to conduct inspections?

RESPONSE: The answer depends on the legal structure of your development. A townhouse is a form of construction, not a form of ownership. A townhouse can be defined as a condominium or a separate interest in a planned development.

Condominiums. If the townhouse is a condominium, responsibility for  balconies will depend on how a condominium unit is defined. If the unit's boundaries are the unfinished surfaces of the interior walls, ceilings and floors, the townhouse structure is owned in common by the membership. That makes the association responsible for repair and replacement of the structure (unless the CC&Rs clearly state otherwise). (Civ. Code §4775.)

If a unit's boundaries are defined as extending to the exterior surfaces of the townhouse, the structure becomes part of the unit and is owned by the homeowner. It's rare but I've seen units defined as such in some CC&Rs. If this is the case, the balcony is the responsibility the unit owner (unless the CC&Rs state otherwise).

Planned Developments. If townhouses are a planned development, homeowners own the structure and the lot upon which it was built. That means homeowners are responsible for their own balconies. The balcony bill does not apply to planned developments. "At least once every nine years, the board of an association of a condominium project shall...[inspect] exterior elevated elements for which the association has maintenance or repair responsibility." (Civ. Code §5551(b)(1).)

RECOMMENDATION. Developer documents are sometimes as clear as mud. This is where boards need legal counsel to prepare an opinion. Boards should not guess when it comes to maintenance and repair obligations. They don't want to find out after a lawsuit is filed that they guessed wrong.


QUESTION: If a board wanted to change balcony responsibilities from the association to the owner in light of the balcony bill, would you agree that the board (as part of their fiduciary duties) have a duty to disclose to members the inspection requirements of Civil Code §5551?

ANSWER: Boards can't change balcony repair responsibilities. They would need to submit an amendment to the membership for approval. If members agree to take on maintenance, repair and replacement responsibilities for their balconies, they are not mandated by the statute to inspect their own balconies (although they should). The statute applies to condominium associations, not individual members.

COMMENT About Borescopes. The balcony statute allows the use of borescopes to inspect elevated structures. I've received mixed feedback about their effectiveness. Their advantage is that only small holes are drilled into the stucco, which are easily patched.

The Downside. It is sometimes difficult for the scope to see signs of water infiltration and deterioration of the framing. The better approach is to open the underside of balconies so an inspector can easily see the structural elements.

Both Methods. Some inspectors use both inspection methods depending on the particular project and the condition of the structures.

WARNING ABOUT CONTRACTS. Following are two provisions from balcony inspection/repair contracts I recently reviewed. They create significant legal exposure for an association if a board were to sign agreements containing them. These kinds of heavy-handed one-sided provisions are the sort that should immediately be stricken from a contract:

Disparagement. Should any resident write or make any statement considered defamatory, derogatory, or disparaging about Contractor or the work performed under this Agreement through any means or format such as Facebook, Twitter, or Linkedln, blogs, texts, e-mail or other electronic means, or by posting negative reviews on public forums such as Yelp, the Association shall be liable to Contractor for liquidated damages in the amount of Ten Thousand Dollars ($10,000) for each violation of this provision.

Indemnify and Hold Harmless. The Association shall hold harmless, indemnify and defend Contractor from any and all claims, including, but not limited to, personal injury, death and property damage brought by any person arising out of or related to any work performed by Contractor under this Agreement. Moreover, the Association, at Association's expense, shall employ legal counsel satisfactory to Contractor to defend the Contractor.

RECOMMENDATION: If a vendor bids on a project and submits a contract containing these kinds of provisions, boards should steer clear of the company. Before directors sign ANY CONTRACTS, make sure legal counsel reviews them.

FIDUCIARY DUTIES
OF HOA BOARDS OF DIRECTORS


The fourth in our series of  2-Minute Videos describes the fiduciary duties of board members.

As soon as homeowners are elected to their association's  board of directors, their actions and decisions are held to a higher standard.

Directors need to know what those standards are so they don't expose themselves to liability.

  Watch Fiduciary Duties of HOA Boards.

Those who want to research this topic further can find a detailed explanation of fiduciary duties on our website. Our next video will cover Executive Session Meetings.


Federal Update. The CDC updated its large gatherings guidelines including how to have a safer Mardi Gras. It updated its guidance for ventilation in buildings and its guidance to reduce risk of Covid-19 spreading between people and wildlife. The CDC also issued various updates on masks including: Improve how your mask protects you; Types of Masks; and Improve Fit and Filtration.

Statewide Update. The following Counties have changed Tiers: Del Norte (Purple Tier to Red).

The State updated the Places of Worship and Cultural Ceremonies Capacity Guidance. It launched safe schools map for the state of California which shows the status of school reopenings across the state. The January 5, 2021 hospital surge order has been revoked due to declining cases and hospitalizations.

Northern California. Alameda County issued a 2/10/21 Press Release re: First Cases of South African Variant in Alameda and Santa Clara Counties.

Butte County issued a 2/8/21 Press Release re: Availability of Testing Appointments.

Marin County issued a 2/8/21 Press Release re: Minimal Spread in Schools Since Reopening. The County also issued 2/11/21 Press Release re: Vaccinations Beginning for Those 65 and Older.

Mendocino County issued a new Health Order regarding the allocation, administration and reporting of COVID-19 Vaccines.

Mono County issued a 2/8/21 Press Release re: Vaccination Progress and Challenges Ahead.

Monterey County issued a 2/9/21 Press Release re: Plan to Expand Vaccination Eligibility for Local Residents.

Nevada County issued a 2/10/21 Press Release re: MyTurn Vaccine Limited Appointments.

Sacramento County issued a new Health Order to reflect the places of worship changes as well as school information.

San Francisco County issued a 2/9/21 Press Release re: Plan to Expand Vaccine Eligibility to Workers in Education and Childcare, Emergency Services and Food Sectors

Mateo County issued a 2/11/21 Press Release re: Expanding Vaccinations to Eligible Essential Workers.

Santa Clara County issued a 2/10/21 Press Release re: First Two Cases of South African Variant Identified in Santa Clara and Alameda Counties. The County issued a 2/11/21 Press Release re: Indoor Worship Services indicating that the US District Court for the Northern District of California suspended its prior order that the County allow indoor worship services for the time being. The County issued a 2/11/21 Press Release re: Community Based Drop-In Vaccination Clinics to Expand Efforts in Areas Hit Hardest.

Santa Cruz County issued a 2/8/21 Press Release re: Watsonville Mass Vaccination Site.

Sonoma County issued a 2/10/21 Press Release re: State Guidance Allowing TK-6 Schools to Open for In-Person Learning with Safety Plan. The County issued a 2/10/21 Press Release re: County Keeping Pace with Other Counties in Vaccine Rollout. The County issued a 2/11/21 Press Release re: Supervisors Adopt Ordinances Strengthening Protections Regarding Evictions and Sick Leave.  

Tehama County issued a 2/9/21 Press Release re: Vaccine Updates.

Southern California. Los Angeles County issued a revision to its health order to comply with the U.S. Supreme Court ruling regarding places of worship allowing indoor worship up to 25% of indoor capacity.

All restaurants, breweries and wineries are to verbally inform customers prior to seating that everyone sharing a table must be from the same household. Updated guidelines for day camps and day care for school-aged children and updated cohort size of up to 14 children and up to 2 supervising staff.

Clarified in office worksites and gyms and fitness centers that all employees must wear masks, except when in an office with door closed, or while eating and drinking during break time.

Short term rentals can now accept out of state reservations for non-essential travel.

Imperial County issued a health order to align with the U.S. Supreme Court ruling in South Bay United Pentecostal Church, et al. v. Newsom et al. and the state’s guidelines for places of worship and providers of religious services and cultural ceremonies.

San Diego County updated the health order to comply with the  U.S. Supreme Court ruling regarding places of worship allowing indoor worship up to 25% of indoor capacity.

San Bernardino County issued a press release that it is complying with the U.S. Supreme Court ruling regarding places of worship allowing indoor worship up to 25% of indoor capacity. It also issued a press release that the county expanded its staff and hours for the Covid Hotline to residents seeking vaccination appointments. Further, improvements to the county’s vaccination appointment page and that vaccinated persons will still need to wear masks to protect families, friends and others who have not been vaccinated.

Santa Barbara updated the health order to comply with the  U.S. Supreme Court ruling regarding places of worship allowing indoor worship up to 25% of indoor capacity. Also allows for wedding ceremonies to occur indoors up to 25% capacity. Wedding receptions are still prohibited.

READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 2-12-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

How to Avoid Another Disaster

Jul 23, 2021 0 Views 0 Comments

Robert Nordlund gathered a panel of experts to address concerns about the recent building collapse in Florida.

We will discuss issues surrounding the disaster, how they affect associations in California, and how boards and managers can avoid exposure to liability.

Watch a short (4-minute) video about the program next Tuesday and then register for it. Sharing their expertise and answering questions will be:



Robert Nordlund, PE, RS
Association Reserves
Founder/CEO
 

Adrian Adams, Esq
ADAMS | STIRLING PLC
Founder and Managing Partner
     

Tim Cline, CIRMS®
Cline Agency Insurance Brokers
CEO
 

Kevin Davis
Kevin Davis Insurance Services
President
     
 Tuesday, July 27, 2021
Presented at two different times:
11:00 a.m. and 1:30 p.m.
  CLICK HERE TO REGISTER
(Your registration will be
valid for both sessions.)

Deferred Maintenance and No Reserves

Jul 11, 2021 0 Views 0 Comments

What happened to Champlain Towers is relevant to California associations. The towers were built in 1981. (Condo construction in California started in the 60s and took off in the 70s.) The Association had no reserves and decades of deferred maintenance. It had low assessments, very likely because it was not funding its reserves, nor was it maintaining and repairing common areas.

Low Reserves. Unlike California, Florida has no requirement for reserve studies. Everything is voluntary. When the board finally commissioned a study in 2020, Association Reserves, Inc. found the Association was only 6.9% funded — a frighteningly low level that guarantees large special assessments in an association's future.

Water Damage. The enormous amount of deferred maintenance was catalogued in a 2018 structural engineering survey commission by a board that was trying to do the right thing. The recurring theme throughout the 9‑page report is water intrusion leading to structural damage. The engineer noted that window frames, balconies, the pool deck, planters, and the entrance drive (over the underground parking) all had waterproofing problems. The report highlighted “abundant cracking and spalling” in concrete columns, beams, and walls. There was also “significant cracking in the stucco exterior façade” (another source of water intrusion and possible mold).

Balconies Damage. Windows and exterior doors in the entire complex were at the end of their useful life and needed to be replaced. Half the balconies had evidence of deterioration. The engineer noted extensive soffit damage and balcony concrete slab edges experiencing concrete spalling or cracking and water infiltration. He expressed concern about deteriorated framing and recommended further investigation of the balconies. (See Structural Field Survey Report.)

California Associations. There may have been original design problems, but the lack of maintenance described in the report is stunning. This should be a wake-up call for boards of directors to (i) immediately comply with California's balcony inspection requirements; (ii) work with their reserve analysts to keep their reserve studies updated; (iii) fund their reserves to at least 70% — even if that means raising assessments; and (iv) spend reserve monies to keep their common areas properly maintained.

Legislation Needed. Even though I am not a fan of additional legislation, California's Legislature should mandate reserve funding. It would help boards overcome member resistance to increased assessments needed for reserves and ongoing maintenance. Doing so would not only protect the safety of millions of California residents, it increases property values. A study conducted by Robert Nordlund, founder and CEO of Association Reserves, Inc., found a correlation between reserves and property values.

RECOMMENDATION. The most important thing a board can do is properly fund its association's reserves and then spend the money to maintain the common areas. A guide on the best practices for "Reserve Studies & Reserve Management" was put together by the Foundation for Community Association Research and is available as a free download. Boards, treasurers and budget committees should read it. (Additional "Best Practices" guides on matters such as security, ethics, financial operations, and governance are also available from the Foundation.)

 


Fabulous newsletter issue on the Surfside collapse. Excellent analysis & writing. Kudos to Ryan Gessell too. -Linda H.

Love your website. –Paul P.

Its one thing to require inspection, maintenance and repairs, as with the balcony bill. It is quite another to pay for it. And money was the ultimate issue in Florida. While I do not care for more knee-jerk legislation, I think the most common problems with HOAs arise not just from deferred maintenance, but its related bedfellow, inadequate reserves. We all know failing to “assess as you go” is philosophically unfair to more recent buyers who eventually must make up the difference from previous under-assessment. Well-meaning boards are hamstrung by resistant owners and will often get immediately recalled when they try to make ends meet. With a legislative mandate, that trend may slow down and associations can start to the their reserves in order without boards fearing retribution. -Wayne L.

A number of years ago, in an attempt to reach the “mind” of Marjorie Murray, I attended two of her workshops and engaged in email conversations with her. I tried to explain that CAI and CCHAL want boards to make informed decisions, fulfill their fiduciary duties, comply with their governing documents and any applicable laws. How we achieve those goals is where our paths diverged. CAI wants board members and managers to be armed with the knowledge and tools they need to succeed. Marjorie wants people to SUE their associations. From what I read of Marjorie’s bio when I first met her, she was some sort of a housing advocate before she founded CCHAL and started on her campaign to destroy HOAs. Marjorie is a nut job; I think we all know that. The real question is: Why doesn’t Sacramento realize it? –Victoria C.

Keep up the good work. You are NOT a lonely voice in the wilderness! ‑Barry C.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary only, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion on the issues they face. We serve as corporate counsel to California associations only. Request a proposal to represent your association.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Ripples from Champlain Towers

Jul 9, 2021 0 Views 0 Comments

Interest remains high about what happened in the deadly collapse of the condominium highrise in Florida and how it might apply to associations in California.

Associated Press. On Tuesday, I was interviewed by a reporter from the Associated Press about how the disaster will ripple across the United States. I think it's very likely legislatures will be compelled to adopt new laws regulating highrise construction, maintenance obligations, and reserve funding. In addition, older highrises may find themselves under intense scrutiny with deferred maintenance suddenly made a priority.


In the interview, I noted that the Champlain Towers Association's problems shifted into a new phase. In the aftermath of the deadly ’94 Northridge earthquake, associations I represented suffered severe financial strain when owners stopped paying their assessments and simply walked away from their units. I believe members of Champlain Towers will stop paying their assessments, the towers will never be rebuilt, and the Association will be dissolved.

In addition, I suspect the Association's insurance carriers will balk at providing coverage because lack of maintenance, which the association knew about, led to the collapse. Eventually, the property will be sold and what little money the land brings will be distributed to members, all of whom lost everything in the disaster.

Nationwide Research Project. I pointed out that aging infrastructures are a growing problem for a significant percentage of associations in California and the rest of the nation. The problem is such that the Foundation for Community Association Research convened a task force to examine the problem. I am a founding member of the Critical Issues Think Tank that recommended the study, and a member of the Aging Infrastructure Task Force that examined the issues related to system failures in common interest developments.

The results of our multi-year project, which surveyed associations across the U.S., compiled information and analyzed it, was published last year — 12 months before the collapse of Champlain Towers.
The data in this timely report identifies many of the problems experienced by the doomed highrise.

Board Negligence. Negligent boards who defer maintenance have created costly situations for their associations. I've represented many associations that were forced to impose huge special assessments on members (as much as $75,000 per unit) because prior boards failed/refused to properly fund their reserves and repair common areas. The majority of issues reported by those who responded to our survey were water intrusion in windows and siding, deteriorating balconies, failing plumbing, electrical problems, and failing roofs.

You can read the results of the survey in "Breaking Point: Examining Aging Infrastructure in Community Associations."


Leaking Podium Decks. I read your column this morning on Surfside and wanted to remark that there are a lot of buildings in California that have similar problems — podium decks that leak into garages below.

I've spoken with half a dozen of my fellow waterproofing professionals and we all agree that leaking podium decks are prevalent throughout California and subject to the same problems that Surfside had — water infiltrating concrete, which corrodes the rebar, causing it to expand, and concrete to fail.

Podium decks with failed waterproofing are extraordinarily expensive to repair. We have seen the same infighting among board and members that you described at Surfside over the cost and methods to repair. Unfortunately, boards will spend money on elaborate sheet metal channels underneath a cracked leaking podium deck rather than spend money to fix the problem.

Surfside will change everything just like the Berkeley balcony collapse did. It's a tragedy that it takes 150 people to die before things get done. -Bill Leys, The Deck Expert, AWS Consultants


Insurance Issues. I just read your comments on the Surfside Condominium collapse and have a question concerning insurance. Would a normal condo policy cover the loss or would they consider it an "Act of God?" For safety reasons, authorities took down the remaining building. Does insurance cover this loss? –Larry D.

ANSWER: Because it involves insurance, I passed the question to Ryan Gesell of The Cline Agency Insurance Brokers. This is his response:

Acts of God. Property policies only cover losses due to covered perils listed on the policy. While it’s true there are policies that cover what we would typically consider an “Act of God” like an Earthquake or Flood, it doesn’t appear that the cause of the initial collapse of this building was the result of a covered peril under the Special Form property policies. We haven’t seen a copy of the policy that this Association maintained, but it’s likely they had a Special Form policy which is designed to cover the typical losses you’d see in a condominium building (fire, lightning, explosion, windstorm, sudden water damage, etc.) subject to the exclusions on the policy.

Insurance Adjusters. Obviously, this loss will be scrutinized extensively, and the adjusters assigned to the loss will no doubt be scouring the policy language for what their duty is to the insured after the reports stating the official cause of the collapse are finalized. According to initial reports, the collapse has been attributed to structural damage due to poor building design and poor drainage on the pool deck and planters. Poor building design is not a covered peril. Condominium master policies were not designed to protect against a loss like this. They don’t rate for it in their premiums, and the policy will almost certainly have language excluding coverage for this type of loss.

Cost to Rebuild. And, unfortunately, the cost to rebuild those portions of the building that were brought down intentionally to prevent further loss of life will also not likely be covered as again, it wasn’t the result of a covered peril. Furthermore, we don’t expect that there will be any collectible insurance for the unit owners under their individual HO‑6 policies for the Additional Living Expenses of moving into a hotel. All H0‑6 carriers are different and will have their own policy language, but typically they would only cover those types of expenses if the loss of the primary residence was the result of a covered peril under the policy.

General Liability and Umbrella Policies. That said, we would expect that the General Liability and Umbrella policies the Association maintains to step in and pay the expected liability claims brought by the families of those poor folks that perished in the collapse. We’d expect those carriers to pay up to the policy limits, as the lawsuits are likely to be significant. Beyond that, the individual owners may be held liable for any awards in excess of the collectible insurance coverage.

Financial Hardship. It's a very sad set of circumstances indeed. Sad for those who lost their lives, for the families of those who died, and for the owners who survived and who will likely face financial hardships as a result. In summary, unless the investigation reveals facts that are currently unknown and the loss is attributed to a covered peril on the policy, we don’t expect there to be any collectible insurance for the rebuilding of the structure.

D&O Policy. The D & O issues are also extremely interesting. Here’s a circumstance where you’d expect the current board members as well as directors and officers going back a decade or more to be named in lawsuits alleging their actions (or in this case, the failure to act) led to the building’s untimely demise. Unfortunately, D & O polices contain bodily injury and property damage exclusions, which are designed to ensure the D & O policy does not inadvertently duplicate the coverage provided by the underlying general liability (CGL) polices.

Thank you to Ryan Gesell, CIRMS™, CMCA®, Vice President, Cline Agency Insurance Brokers, for providing this information.


Audit Disclosures. What did the auditor know, when did he|she know it, when and how was it disclosed in the financial statements? If an audit or review was performed on the Champlain Association (apparently owners can opt out of such Florida requirements for up to 3 years), then immediately upon issuing a $15,000,000 estimate of the cost to cure the building issues, the loss and related liability should have been recorded on the Association’s GAAP‑compliant financial statements.

If this loss was not recorded on the HOA’s books such that the members could grant their “informed consent” to the situation, I am thinking that the HOA’s CPA and related volunteers and professionals are at serious risk of malpractice.

CAI should develop the best accounting and reporting practices for HOAs across the country, because what is going on now is misleading, fails to reflect economic reality, and inconsistent with current liability recognition standards. -Donald W. Haney, CPA, MBA, MS(Tax)

Politics. I am surprised you took such a political stance in answering a simple question regarding ADUs. I was put off by your answer. -Daniel H.

RESPONSE: Owners can't bury their heads in the sand and pretend politics don't affect our industry. When governors and legislators constantly make terrible decisions that disrupt our communities, someone needs to speak up. Turning garages into rental units and building another one in the yard is one of those short-sighted decisions that will have a long-term negative impact on communities. Senate Bills 9 and 10 are two more bills that will destroy property values and strain HOA resources if passed into law. Politics are all around us. Being polite and not engaging in the fight is not an option. When boards of directors make terrible decisions, you replace them. The same is true with politicians.

YouTube Videos. Adrian - Kudos on another excellent explaining video on the HOA process that breaks it down into understandable and basic bite-size pieces. Thanks for putting on YouTube. I have subscribed. Perhaps more newsletter recipients should know about ability to subscribe to your YouTube channel. -Leland B.

RESPONSE: Leland, thank you for the kudos. We have a growing library of videos as well as a large and growing subscriber base on our YouTube channel: HOA Legal Issues.

 

THE PURPOSE OF AN
ASSOCIATION


The next in our series of 2‑Minute Videos is timely in light of the Champlain Towers disaster.

Our video describes the purpose of associations — why are they created and what are they supposed to do? What role does a board of directors play in managing an association?

  Watch: Why Do Homeowner Associations Exist?

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary only, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion on the issues they face. We serve as corporate counsel to California associations only. Request a proposal to represent your association.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Surfside Condominium Collapse

Jul 6, 2021 0 Views 0 Comments


The collapse of the 12-story condominium tower in Surfside, Florida captured the nation's attention because it was so sudden and deadly. Things like this are not supposed to happen.

Perfect Storm. It appears a number of factors contributed to the tragedy. Among them were construction defects, environmental factors, poor code enforcement, poor maintenance, and a refusal to impose special assessments to make needed repairs.

Resignations. In 2019, five members of the seven-member condo board resigned in frustration over endless debate concerning the scope of work and its cost. They had been issued dire warnings, but members balked at paying the estimated $15 million to make repairs.

In the president's letter of resignation, she pointed out that the prior president was undermined repeatedly and couldn't get anything done. The sniping continued against the new president. She complained of "ego battles, undermining the roles of fellow board members, circulation of gossip and mistruths."

Consequences. Rogue directors who blocked repairs had deadly consequences. It led to the deaths of over 150 members. Lawsuits have already been filed against the association, with more on the way. The association is now in court-ordered receivership.

RECOMMENDATION: If a condominium project is less than ten years old, it is important for boards to talk to legal counsel to determine if defects exist. They should have the property inspected and a report prepared, and then take appropriate action.

Maintenance and Safety. For projects older than ten years, boards must fulfill their primary duties — maintenance of the common areas and ensuring sufficient funds are available to do so. That means properly funding their reserves and then spending those monies to keep building components in good condition. When directors receive a report warning of imminent harm, they should move quickly with an emergency special assessment, if needed, to address the danger.

****


Interim Meetings. Our board is having an interim meeting between regular board meetings every month. We have motions, votes, and executive meetings during these meetings. Is it legal to do this and call it an interim meeting? –Diane M.

ANSWER: It's legal if the board gives the membership four days' notice and posts an agenda. Whenever a quorum of directors gets together to "hear, discuss, or deliberate upon any item of business," it's a board meeting, no matter what they call it. (Civ. Code §4090.)


Taxes on ADUs. Will building an ADU increase property taxes on the land owner? -S.D.

ANSWER: That’s a good question. I suspect the answer is yes. Local governments are always looking for more tax revenue. Building an Accessory Dwelling Unit (ADU) in one's backyard is no different than adding onto your house, which triggers a reassessment and increased taxes. Converting a garage into a JADU doesn't add square footage, but it's an improvement which increases taxable value. Maybe some of our readers have experience with this and can report on it.

Continue Masking? I'm vaccinated but immuno-compromised due to medication for rheumatoid arthritis. Can I ask my HOA to continue to require masking and social distancing (for everyone) in our laundry room as a provision of the Americans with Disabilities Act? -Lora

ANSWER: You can ask but I don't believe the association is required to accommodate your request. Requiring everyone in the complex to wear a mask to protect you when you have alternatives may be a bridge too far. In Davis v. Echo Valley Condominium Association, Davis suffered from asthma and claimed the association's refusal to ban smoking discriminated against her because of her health issues and was in violation of the federal Fair Housing Act (FHA). The court determined that a smoking ban would amount to a fundamental alteration of the association's policies and would intrude on the rights of other residents to smoke within their units. The court ruled that a smoking ban is not a reasonable accommodation.

Suspend Cable TV. As part of the dues, our association covers cable TV for all owners. If a homeowner is behind in their dues and has rebuffed all payment plans, can their cable be shut off until they are paid in full? –Kevin H.

ANSWER: Yes, you can suspend their cable TV. It's a service, not an entitlement. If they fail/refuse to pay for the service, it can be turned off. Before suspending the service, you should hold a hearing and give the person an opportunity to pay the monies owed or enter into a payment plan.


ADUs in Front Yards. You mentioned that ADUs can be in a garage or back yard. Placer County is interpreting the law to mean they can be in the front yard also. They are even granting variances to front setbacks to allow them to be built between the existing home and the street. If there is another interpretation or court ruling that restricts ADUs to the back yard or garage, please write about it and let us know ASAP! Also, it is my understanding that an attached ADU could also be built thereby allowing 3 ADUs per lot! -Netti J.

ANSWER: I am not aware of anything at this point limiting the proliferation of ADUs. The Governor and Legislature are putting band-aids on the housing crisis. Robbing communities of the right to control their own zoning, breaking up stable single-family home neighborhoods, adding more cars to streets, and overloading facilities is not the solution. A new Governor and Legislature may be the solution.


Changing Management Companies. We are in the throes of changing management companies. Our intention is to overlap services for the sake of a "smoother" transition (2-weeks' worth). Is there a statute that prohibits such an overlap of management companies? –Marshall D.

ANSWER: There is nothing illegal or improper in overlapping management services to help ensure a smooth hand-off.

HOA BUDGET
REQUIREMENTS


The next in our series of 2-Minute Videos describes budgets.

It addresses Davis-Stirling requirements on HOA boards of directors, their notice obligations, approval requirements, disclosures, and increase limitations.

  Watch: HOA Budget Requirements


Marjorie Murray. Does anyone know a good investigative journalist who can dig into her present and past activities? -Sharon F.

RESPONSE: It would be nice to shed some light on what motivates Ms. Murray. Does she live in an association? Was she ever on a board of directors? Was she recalled by the membership? Something happened to trigger her hostility. There were repeated warnings by others and me that her election bill was a train wreck. She refused to listen and plowed ahead. She called the legislation her "baby." Instead, it's a dumpster fire.

Thank you for today's newsletter. The information is just the best. -Jones A.

Your Newsletter is great! An oasis in a condo desertscape. Totally worth the time and effort. -Nancy H.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary only, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion. We serve as corporate counsel to California associations only. Request a proposal to represent your association.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

New Mask Mandate

Jun 17, 2021 0 Views 0 Comments

As we noted in yesterday's Video Bulletin, Reopening without Tiers, all unvaccinated persons are required to wear masks in indoor public settings and businesses.

Does this apply to HOA clubhouses, pools, gyms, and board meetings? We don't know. As with everything else in the pandemic, Health Department mandates forget to address the issue.

We suspect associations are included in their mandate even though we don't fit the definition of "indoor public settings and businesses." At this point, the conservative approach is to assume we are included.

Where masks are required only for those who are unvaccinated, the California Department of Public Health allows the following options:

1. Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest to vaccination prior to entry;

2. Implement vaccine verification to determine whether individuals must wear a mask; or

3. Require all to wear masks.

We recommend the first option — signage that allows vaccinated individuals to self-attest to their vaccination. The picture above is a poster now being used by Albertson's Markets. The message under the mask states:

If you shop in our store without a mask, you are attesting to the fact that you are fully vaccinated.

To minimize risk, we recommend associations post similar signage in their indoor common areas. We will provide additional information as we learn more about the mandates.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary only, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion. We serve as corporate counsel to California associations only. Request a proposal to represent your association.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Reopening without Tiers

Jun 16, 2021 0 Views 0 Comments

We are pleased to introduce a new educational venue for our readers. We are launching a series of "live" videos called the HOA VIDEO BULLETIN.

The Bulletin will cover a wide range of topics, such as breaking news, trends in the industry, legislation, case law, and more.

Our Video Bulletins will feature our attorneys and special guests. They will then be published the same day through this newsletter, our website, social media, and our YouTube channel: HOA Legal Issues.

Our first HOA Video Bulletin covers California's June 15 loosening of COVID restrictions. Our "Pandemic Edition" features Partners Adrian Adams, Laurie Poole, and Nathan McGuire discussing restrictions that still apply to associations.


  Watch: Reopening Without Tiers

The Blueprint. On June 15, California moved “Beyond the Blueprint” with Governor Newsom issuing two new Executive Orders. The first, Order N‑07‑21, rescinds the March 19, 2020 Stay-at-Home Order and the May 4, 2020 Blueprint for a Safer Economy, which means that the colored tier system is no longer in place. It is important to note that local Health Officers can impose additional requirements, which some have already done.

The second, Order N‑8‑21, keeps specific provisions of certain prior Executive Orders. One such Order relaxes the physical location requirement for the Brown Act and the Bagley-Keene Act, which apply to public meetings. As before, the guidance is silent on HOA meetings.

Face Masks. The CDPH issued Face Covering Guidance which is intended to track CDC guidance. The Order requires:

• All persons must wear masks: on public transport; in K‑12 schools, day cares and youth settings; healthcare settings; State and local detention centers and correctional facilities; and homeless shelters, emergency shelters, and cooling centers.

• Unvaccinated persons are required to wear masks in indoor public settings and businesses.

• Where masks are required only for those unvaccinated, the business venue operator or host may:

  1. Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest to vaccination prior to entry;
  2. Implement vaccine verification to determine whether individuals must wear a mask; or
  3. Require all to wear masks.

RECOMMENDATION: Unfortunately, there are as many questions as there are answers. While associations may not technically be subject to the above requirements because they are not "public settings/businesses," boards should consider whether to implement rules to protect the health and safety of their members. Each scenario will be different. As more information becomes available, we will publish it.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary only, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion. We serve as corporate counsel to California associations only. Request a proposal to represent your association.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Reopening Facilities

Jun 13, 2021 0 Views 0 Comments

On Tuesday, June 15, California is lifting most, but not all, COVID restrictions. Associations can reopen their facilities but still need to follow applicable Health department directives.

Proof of Vaccination. Those who are fully vaccinated will be allowed to use the association's gym and other facilities as they did before the State went into lockdown. Those who have not been vaccinated will be required to continue wearing masks in outdoor common areas where physical distancing cannot be maintained, as well as in indoor common areas. It means associations still need rules to comply with these requirements.

This, of course, creates a problem of monitoring who has been vaccinated and who has not. Posting a guard at the entrance of the clubhouse and gym and demanding proof of vaccination is not something I recommend. I prefer signage that the unvaccinated wear masks, and then rely on the honor system.

Sanitation Requirements. The State will continue to require sanitation standards be followed for pool areas, restrooms and gyms. Boards will need to review their County's standards and decide whether they can meet them or not. That means some facilities might continue to be closed.

Liability Waivers. To reduce potential liability, more than a dozen states adopted COVID immunity legislation. Unfortunately, California did not. That means associations might consider the continued use of liability waivers until the pandemic is officially declared over.

Guests. Another consideration for boards: should they prohibit guests from using their facilities so as to maximize their availability for residents? What about trainers? Should they be allowed? Should they be required to sign hold-harmless agreements?

RECOMMENDATION: Even though the State is reopening, we are not yet at pre-pandemic levels. Because California has not adopted legislation protecting businesses (and associations) from COVID liability, and because insurance policies routinely exclude coverage related to communicable diseases, boards should consult legal counsel and decide how best to reopen their facilities without incurring liability.

Thank you to attorney Megan Hall for her contribution to this article. Megan has been tracking and reporting each week on the changing requirements related to COVID-19.

 

LEVY ASSESSMENTS ON
ACCESSORY DWELLING UNITS?


QUESTION: Our HOA has an owner who built an ADU. It has a separate address. Are we allowed to charge an additional set of HOA dues for the ADU? Appreciate any insight you can provide. –Stacie C.

ANSWER: I know it's tempting but you can't levy assessments on an ADU — it is located on a lot that is already being assessed. You can, however, charge the owner a reasonable fee for the increased load his renter puts on your association's amenities, gate operations, streets, etc.

Short-Term Rentals. The courts addressed this issue in Watts v. Oak Shores. Oak Shores is a large planned development located on a lake. Many owners rented out their homes on a short-term basis to people who went boating on the lake. Renters would bring their suitcases, a power boat, and other water toys when they took possession of short-term rentals.

Increased Load on Amenities. Because so many owners rented out their homes on a short-term basis, it significantly increased traffic on weekends and holidays, and imposed an increased load on front gate staff and the association's roads. In addition, renters made greater use of the amenities than owners, caused more wear and tear on the docks, created more rules enforcement issues, and left behind trash that maintenance crews had to pick up. To offset the increased expenses, the board imposed a $325 annual fee on landlords.

Lawsuit Filed. Homeowner Ken Watts sued, claiming the board had no authority to levy the fee and, if they did, they had to calculate an exact amount for each rental instead of charging a flat fee on landlords. He cited Civil Code §1366.1 (now §5600(b)), which prohibits an association from imposing or collecting "an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied." After a lengthy trial, the court disagreed with Watts and ruled in favor of the association. Watts appealed.

Court of Appeals. The Court of Appeals upheld the lower court's decision. The Justices commented that other association members should not be required to subsidize Watts's vacation rental business. They decided the board could impose a reasonable fee to offset expenses associated with short-term renters.

The Court also ruled that the fee levied by the association did not have to be exact. All that's required is a reasonable good faith estimate of the fee necessary to defray the cost for which it is levied. To read the decision, see Watts v. Oak Shores.

Long-Term Renters. If an owner rents his house to a long-term renter, charging the owner a fee would not be justified, since a long-term renter would be no different than the owner living in the house. It does not increase the load on an association's facilities. Short-term renters and ADUs, however, are different.

Impact of ADUs. Developments are designed to handle particular numbers of people and vehicles. Adding ADUs exceeds those designs. With each ADU built in an association, it adds more people using the clubhouse, pool and gym, more cars passing through the gates, less available parking, more guests and even more cars, more rules enforcement issues, more trash being generated, etc. Per new ADU laws, each home in a planned development can convert their garage into an ADU, plus build one in the back yard. That means there can be three families per lot where previously there was one.

RECOMMENDATION: If boards want to charge owners a fee for their ADUs, they need to put pencil to paper and arrive at a number they can justify. Oak Shores used a CPA to help management arrive at a fee they could defend in court. Once boards formulate a reasonable dollar amount, they can impose the fee with a rule change. It does not require a vote of the membership.

 

 

Federal Update. The FDA issued Press Release re: Stop Using Innova Sars Cov-2 Antigen Rapid Qualitative Test.

CDC updated the following guidance on: Older Adults and Travel Recommendations.


Statewide Update. The State will officially reopen on June 15 according to the following guidance: Beyond the Blueprint.

The State issued 6/7/21 New Summer Programming and School Reopening Data.

The CDPH issued new Face Covering Guidance Effective 6/15/21. This guidance is intended to align with the CDC’s guidance.

The CDPH issued 6/7/21 Updated Testing Guidance.

The following Counties have changed Tiers: Alameda County (Orange Tier to Yellow); Napa County (Orange Tier to Yellow); Stanislaus County (Red Tier to Orange).

Press Release from California Occupational Safety and Health Standards. Board voted on June 9 to withdraw revisions to Cal/OSHA’s COVID-19 emergency temporary standards, leaving the November 2020 emergency temporary standards in place until at least June 17, when the Board meets again.


Northern California. Alameda County moved to the Yellow Tier and issued a 6/8/21 Press Release re: Move to Yellow Tier.

Butte County issued a 6/7/21 Press Release re: Gridley Clinic Offering Phizer Vaccine.

Calaveras County issued a 6/10/21 Press Release re: Vaccination Clinics.

Contra Costa County issued a 6/10/21 Beyond the Blueprint Update.

Fresno County issued a 6/10/21 Press Release re: Vaccination Event and Carnival.

Napa County moved to the Yellow Tier and issued a 6/8/21 Press Release re: Move to Yellow Tier. The County issued a 6/11/21 Press Release re: Beyond the Blueprint.

San Francisco issued a 6/9/21 Press Release re: Reopening Pursuant to Beyond the Blueprint Effective June 15. The County issued a 6/11/21 Press Release re: Streamlining Testing Amidst Decline Due to Vaccination.

San Joaquin County issued a 6/9/21 Press Release re: Move to Orange Tier and June 15 Re-Opening.

San Mateo County issued a 6/10/21 Press Release re: Most County Offices to Open for In-Person Service June 15.

Sonoma County issued a 6/9/21 Update on Emergency Rental Assistance Program.

Stanislaus County moved to the Orange Tier and issued a 6/9/21 Press Release re: Move to Orange Tier.

Tehama County issued a 6/9/21 PSA re: Reaching Immunity.


Southern California. Los Angeles County Press Release regarding reopening on June 15. Los Angeles County to align with State’s masking guidelines, where fully vaccinated individuals do not need to wear masks indoors with exceptions for public transit, K-12 schools, healthcare settings, correctional facilities and shelters. Masks will still be required indoors for unvaccinated individuals in public settings and businesses. San Bernardino County Press Release regarding what will it look like on June 15.

San Diego County Press Release regarding San Diego’s move to yellow tier.

San Luis Obispo County Press Release regarding SLO County’s move to yellow tier.

Santa Barbara County updated its health order to align with its move to yellow tier. Press Release regarding Santa Barbara’s move to yellow tier. What can I do now that I am vaccinated?

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

Pool Covers, Pet Restrictions and Electric Vehicles

Jun 6, 2021 0 Views 0 Comments

Pool Covers. I love your newsletter. A former board member said we are not allowed to put a solar cover on our community pool. Is this true? ‑Robin B.

ANSWER: No, I don't believe it's true. There are significant benefits to covering pools at night and during winter months. Covers reduce heat loss by up to 90%, save water by reducing evaporation, and keep pools cleaner. There are three different kinds of pool covers: tracked, anchored and floating. Floating covers cause the most concern. Since they are designed to float on the water, they can collapse under the weight of a child, allowing the child to become trapped under the cover and drown. 

RECOMMENDATION: Before installing a pool cover, boards should contact their association's insurance broker to make sure there aren't any policy exclusions related to pool covers. If there are no exclusions, contact the appropriate regulatory agency (usually the County Health Department) to find out what kind of pool covers are allowed. Always select the safest cover for your association.

Pet Restrictions. Our CC&Rs still contain developer provisions that expired in 1982. Will removing the developer provisions invalidate our pet restrictions? ‑Ron L.

ANSWER: It depends on what you mean by pet restrictions. If your CC&Rs allow pets but limit their number and size, your restrictions are not affected. If your CC&Rs prohibit pets, the prohibitions are void. For a more complete discussion on this topic, see Prohibiting Pets.

Suspension of Privileges. Can the board suspend a privilege without a hearing? -Roger B.

ANSWER: No. Hearings are required for all disciplinary actions by an association. See Suspending Privileges.

Electric Vehicle. A new resident has an electric car and is seeking approval to add a plug in the carport for his car. He will cover the expense. Are we required to comply? With electric cars becoming more popular are HOAs going to have to retrofit the carports or garages with electric for this change? –Craig C.

ANSWER: Yes, you are required to allow owners to install electric vehicle charging stations. It sounds like all he wants to do is install an outlet. In either event, the resident must use a licensed electrician to install the electrical outlet/charging station and pay for the electricity he uses. Those
who want to install outlets or charging stations must bear any costs involved. Even though not required, some associations have voluntarily installed electrical backbones in their underground parking structures so owners can more easily install charging stations. For more information, see Electric Vehicle Charging Stations.

Working for HOAs. Can a resident of our community work for the HOA? We have a resident who applied for a job on our maintenance crew but was told by our GM that residents cannot work for the HOA. -Pam H.

ANSWER:
If your GM said residents cannot work for the association, it may be an internal policy adopted by the board since there are no legal barriers to a resident working for an association. Many associations employ residents because there is no commute involved, they are familiar with the property, and they are sometimes willing to work for less because it's their home. Just be aware, the person needs to be classified as an employee. Also, make sure he understands there would be conflict of interest if he ever decides to serve on the board. To avoid potential problems, a good policy to follow is for the person to resign from his job before running for the board.

Limited Equity Park. Thank you for the video on the four kinds of CIDs. I noticed that none of them seem to describe our mobile home park. In our park, which is also a limited-equity housing cooperative, members collectively own the whole property and individually own their mobile homes, but not the spaces they sit on. We function under Davis-Stirling. Does our arrangement constitute a fifth type of CID? -Michael L.

ANSWER: If a corporation owned your park, it would be a stock cooperative. If, as you describe it, the park is owned collectively by the membership, it is a community apartment project, also known as an own-your-own, or a tenants-in-common (TIC) project. This is one of the four forms of common interest developments recognized by the Davis-Stirling Act.

Ban Smoking. Is it legal to change rules requiring no smoking, including within one’s own property, even though many smokers had been living in the complex for years? -Arlene F.

ANSWER: Yes, it's legal. Many cities and associations have already done so without grandfathering existing smokers. Secondhand smoke is carcinogenic and has a bad habit of creeping into neighboring units. Some of you might remember a popular song by the Mills Brothers from the 1930s:

Where do they go,
The smoke rings I blow each night?
Oh, what do they do,
Those circles of blue and white?
Puff puff puff puff your cares away
Puff puff puff night and day

Although a smoking prohibition can be done with a rule change, it is more easily enforced if it is done by amending your CC&Rs.
 

WEBSITE
DISABILITY COMPLIANCE


Last year, in the middle of the pandemic, we made our Davis-Stirling Research Website ADA-compliant by making it accessible to users with blindness, epilepsy, blurred vision, color blindness, cognitive disorders, cataracts, and more.

We are proud to announce that our website is now part of the world's first search engine for accessible websites. The revolutionary search engine is accessFind, a nonprofit initiative, built in partnership with leading disability organizations to display results of accessible websites.

Because of this, the Davis-Stirling website is even more accessible to people with disabilities.

 

HOW BOARDS
SHOULD ADOPT RULES


The next in our series of 2-Minute Videos describes how boards of directors can adopt operational as well as emergency rules.

It covers membership notice requirements,
feedback, and adoption in open session, as required by the Davis-Stirling Act. 

  Watch: How to Adopt Rules

 

THE NOBLEST MOTIVE


I am proud to announce that our Senior Partner, Larry Stirling, author of the Davis-Stirling Act, wrote The Noblest Motive, a book about how to bring fundamental change for the public good.

In addition to authoring the Davis Stirling Act, Larry created the well-known "Adopt-a-Highway" law, pioneered the first major 9-1-1 law, pushed through the first major whistleblower law, engineered California's first fish hatchery to bring back our over-fished ocean stocks, pioneered the use of reclaimed water on our freeways, and made many other improvements in state and local government operations.

Larry's book brings hope to those who have lost faith that government can be trusted. The book is available at Amazon.com. -Adrian

 


United Against Murray. United support is the only way to combat Ms. Murray. We see so many bills that do not help HOAs and instead bills that place additional burden and even are detrimental. I also agree donors to Ms. Murray's organization need to be exposed. There is not convincing evidence she actually represents the interests of HOA members. ‑Carol M.

Not Registered. I just checked the 2020-2021 California State Lobbyist Directory. According to the Secretary of State, Ms. Murray is not registered. If that is true, how can she legally be permitted to lobby? ‑Ben B.

Notify Legislators. It is important to contact our State Legislators and Governor to make sure they know Murray DOESN’T represent the needs of HOA homeowners. –Ken M.

Work Is Dreadful. Greatly appreciate your coverage of her work. There’s an angle missing. How is she able to out-lobby CAI, ECHO, 55,000 HOAs and others? Donations to politicians? Dirt on someone? Her work is dreadful but she wields considerable power. I wonder where it comes from. And with that I’m off to the State’s campaign funding sites to search her activity. –Henry C.

Wrong-Headed. I could not agree more that Marjorie Murray’s positions on HOA legislation are routinely wrong-headed, out of touch, and generally and specifically detrimental to the proper functioning and well-being of HOAs. –William F.

 

 

Federal Update. CDC updated the following guidance: FAQs about COVID-19 Vaccination; Laws and Regulations; Vaccines for Older Adults; Ventilation in Buildings; Workplaces and Businesses.

Statewide Update. The State has issued 5/21/21 Beyond the Blueprint updates related to changes after June 15.

The CDPH issued 5/21/21 Guidance for Vaccination During Pregnancy.

The following Counties have changed Tiers: Inyo County (Orange Tier to Yellow); Marin County (Orange Tier to Yellow); Mariposa County (Orange Tier to Yellow); Merced County (Red Tier to Orange); Monterey County (Orange Tier to Yellow); Nevada County (Red Tier to Orange); Placer County (Red Tier to Orange); Sacramento County (Red Tier to Orange); San Joaquin County (Red Tier to Orange); Solano County (Red Tier to Orange); Ventura County (Orange Tier to Yellow).

Northern California. Alameda County issued a 5/25/21 Press Release re: 74% of Residents at Least Halfway Vaccinated. Bay Area Health Officials issued a 6/3/21 Joint Statement Supporting Full In Person School In Fall.

Butte County issued a 5/24/21 Press Release re: Vaccination Clinic Grand Opening.

Contra Costa County issued a 5/28/21 Bay Area Health Officials Joint Statement re: Vaccination for COVID-19 and Other Vaccines Combined. The County issued a 6/1/21 Press Release re: School Vaccinations Offered at COVID-19 Vaccine Clinics. Bay Area Health Officials issued a 6/1/21 Joint Statement Supporting Full In Person School In Fall.

Fresno County issued a Event Planning Form During COVID-19.

Marin County moved to the Yellow Tier and issued a 6/1/21 Press Release re: Move to Yellow Tier. The County issued a 5/28/21 Press Release re: Allowing Other Vaccines Concurrent with COVID-19 Vaccine

Monterey moved to the Yellow Tier and issued a 6/1/21 Press Release re: Move to Yellow Tier.

Nevada County moved to the Orange Tier. The County issued a 5/25/21 Press Release re: Cases Lowered and Vaccine More Readily Available.

Placer County moved to the Orange Tier. The County issued a 5/24/21 Press Release re: Vaccine Clinics in Targeted Areas.

Sacramento County moved to the Orange Tier and issued a new Order to reflect the changes.

San Joaquin County moved to the Orange Tier.

San Mateo County issued a 6/3/21 Joint Statement of Bay Area Health Officials re: Vaccinations Available Concurrently with COVID-19 Vaccine.

Santa Clara County issued a 5/22/21 Press Release re: Fully Vaccinated Residents Surpass One Million.

Santa Cruz County 5/28/21 Joint Statement re: Vaccinations Available Concurrent with COVID-19 Vaccine.

Solano County moved to the Orange Tier.

Sonoma County issued a Face Covering Order rescinding the prior face covering order and aligning with CDPH guidance. The County issued a 5/28/21 Press Release re: 70% of Residents 12 and Older Vaccinated.

Southern California. Los Angeles County revised Health Order to add guidance for overnight organized children’s camps. Updated protocols for Recreational Equipment Rental and Small Water Vessel Charters.

Press Release discussing compliance for employers regarding Cal/OSHA standards after reopening on June 15, 2021, which is expected to be that everyone in a room that is fully vaccinated is not required to wear masks; however, in rooms where everyone is not fully vaccinated, face coverings will be required for everyone.

Press Release regarding County-run vaccine sites, everyone 18 and above who receives first-time vaccine or brings someone for first-time vaccine to second dose appointment will have an opportunity to win a pair of tickets to LA Football Club soccer team or LA Dodgers for 2021-2022 season. The City of Los Angeles also issued a Press Release that the City will join the County’s program.

Press Release regarding four County vaccination sites will close on June 7 for Cal State Northridge and June 14 for the Forum, Pomona Fairplex, and LA County Office of Education. The closed sites will transition to community sites located at Ted Watkins Memorial Park, Commerce Senior Citizens Center and Norwalk Arts & Sports Complex.

Orange County Press Release the County expects increased demand for first-time dose of vaccine after the Governor announced the “vax for the win” campaign.

Riverside County Press Release City of Palm Springs to hold mini-Village Fest on June 15, 2021 to celebrate California’s reopening. 

San Diego County Press Release the County expects to move to yellow tier a week before the June 15 reopening. Further, at designated County mobile vaccination sites, can enter for a chance to win Padres tickets.

San Luis Obispo County Press Release phone assistance center for questions related to COVID-19 is changing to 805-781-5500.

San Bernardino County Press Release regarding door-to-door campaign called “Operation Sneakers and Vaccine Speakers” where information about the County’s vaccination program will be provided to traditionally underserved communities.

Santa Barbara Press Release regarding second dose of the vaccine. Press Release regarding safety of COVID-19 vaccine. 

Ventura County Press Release regarding the County’s entry into yellow tier. 

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Corporation Elected to the Board

May 23, 2021 0 Views 0 Comments

QUESTION: Our HOA has several members that operate commercial vineyards on their lots. Employees of two of these corporations hold board seats, even though they are not owners or members. Is this allowed under Davis-Stirling? ‑Kathleen C.

RESPONSE: Yes it is. Mitt Romney, in his 2011 presidential run against Barack Obama, correctly pointed out that corporations are people too. What he neglected to say is that they are not natural persons. Instead, they are "legal" persons. As such, corporations have most of the rights and privileges that natural persons have, such as owning property, entering into contracts, belonging to organizations, etc.

Person Defined. The Davis-Stirling Act defines "person" as a natural person, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, limited liability company, association, or other entity. (Civil Code §4170.) I suspect most homeowners don't know that their association is a person.

Spokesman Required. If a corporation owns property in a common interest development, it automatically becomes a member of the association, meaning it can vote and serve on the board of directors. A corporation, however, needs a natural person to speak for it, just as associations rely on boards of directors to speak for them. That means a corporation can appoint someone to attend meetings on its behalf and even serve on the board of directors.

RECOMMENDATION: We include language addressing the rights of entities such as corporations, companies, partnerships, and trusts when we restate an association's governing documents. Boards should consider doing the same when it comes time to restate their bylaws.

 

MENTAL ILLNESS
AND BOARD DUTIES


QUESTION: One of our members appears to have a mental issue causing her to harass her next door neighbor by playing loud noises throughout the night (cats meowing, car sounds, thumping noises, etc.). She was arrested when police discovered she had placed a speaker in her attic facing her neighbors' wall. The neighbors called law enforcement several times before the arrest and were advised by officers that they should direct their complaints to the HOA. At what point should or must a board get involved in neighbor-to-neighbor disputes? -Guy S.

ANSWER: If you have a nuisance provision in your CC&Rs, the board is obligated to investigate and determine if a complaint has merit. If it does, the board should take appropriate action. The fact that police found a speaker in the attic disrupting the quiet enjoyment of the woman's neighbor is sufficient evidence to hold a hearing and levy fines against her.

Executive Session. As noted in our May 2 newsletter, mental illness is not addressed in the Davis-Stirling Act's list of executive session topics. Even though it's not specified, directors should discuss these kinds of issues in private and with legal counsel.
Talking about the mental illness of an owner in open session could land the board in a lawsuit. Hence, our expanded list of what can be covered in executive session.
 

CCHAL FIGHTING
GOOD LEGISLATION
 

A few readers were unhappy that I spotlighted Marjorie Murray's opposition to four bills currently before the Legislature.

Self-Appointed. Ms. Murray has been operating for years as a self-appointed advocate who lobbies against legislation that benefits homeowners and pushes legislation that imposes heavy burdens on people living in associations. A prime example is SB 323, the election bill sponsored by her organization that complicated elections and made them more expensive.

In the Shadows. Until now, Ms. Murray has been in the shadows. California's 9 million homeowners living in associations impacted by her organization have a right to know about her involvement in legislation. Sunlight is the best disinfectant and it's time some light was shined on her Center for California Homeowner Association Law (CCHAL). -Adrian

Willie-Nillie Lobbyist. Regarding Marjorie Murray, I wasn't aware that someone can just become a lobbyist willie-nillie? Can she be investigated? Can any legal action be brought against her? She certainly has an axe to grind, why else would she be causing so much trouble for so many people? -Frances F.

Terrible for Seniors. I sent this to Ms. Murray and no response, can you tell me why? -Holley R.

Your attacks on HOAs is terrible, especially for seniors. I live in one of the oldest and largest senior community in California. Your 323 bill caused our assessments to go up — what’s wrong with you? Please stop attacking us and get into a good fight against the gangs, drugs, human and sex trafficking in your home town of Oakland, instead of getting into things you clearly know nothing about. Just to let you know, in our area (6-mile radius) there are twelve 55+ communities with over 55,000 residents on very fixed incomes so we do know what’s good for us.

RESPONSE: I suspect Ms. Murray did not respond because she does not have a good answer.

Dark Money. I contacted Ms. Murray about her stance on bills affecting associations. Since she is not an elected official, I asked how and where does she get so much power over our elected folks that she can derail much needed legislation. I even asked where she gets her money to stay in business. Of course I did not receive any real answers to my questions. How does someone like Murray wheel so much power on elected officials without dark money going under the table?? –Gary H.

RESPONSE: Ms. Murray's organization should stop hiding its list of donors and how much they donated. Just as HOAs must disclose current and prior two years of financial records, her organization should be transparent and post online their financial records and list of donors for 2021, 2020 and 2019. Your can request transparency by sending an email to [email protected].

Organize Opposition. Emailing this nut-ball Murray is not going to work. We need to mobilize all the HOAs to email the governor and state representatives. Organize it and we will participate. –Marty B.

RESPONSE: CAI's California Legislative Action Committee will send alerts when it's time to email legislators. We will do the same. Everyone should sign up for their newsletter.

Waste of Time. It's obviously a waste of time contacting Marjorie Murray. People need to contact their legislators who vote on these bills. Senator Wieckowski is my representative and he supports everything she does. -Paul C.

RESPONSE: Yes, it appears Senator Wieckowski carries water for Ms. Murray.

A Malcontent. As messed up as it is, Marjorie Murray’s antic opposition is a good exercise for board members to read about. She is that one person who shows up at every HOA meeting and asks questions which are not questions but rants. There is always the malcontent, the critic, the ear bender, the compulsive, and so on, who uses the proceedings to get a cheap high. -Earl R.

What Does AB 1101 Do? Marjorie Murray sent an email stating that AB 1101 does not establish insurance requirements for money collected by associations. She said that Civil Code §5380 established insurance requirements long before the bill’s author arrived in Sacramento. What does the bill actually state? -Anon

RESPONSE: Ms. Murray is either misreading the bill or intentionally misstating what is does. It expands insurance options to include guaranty corporations and it prohibits high-risk investments. The new language is in red:

All of the funds in the account are covered by insurance provided by an agency of the federal government or a guaranty corporation subject to Section 14858 of the Financial Code. Those funds may only be deposited in accounts that protect the principal. In no event may those funds be invested in stocks or high-risk investment options. (Assembly Bill 1101.)

Marjorie's hostility to protecting homeowners' money is perplexing.

Observing Ballot Counts. Marjorie Murray is completely out of touch with the day to day management of HOAs. I am baffled that her opinion is even considered relevant to legislators. -Barbara D.

[MARJORIE MURRAY] Ms. D. --- How would you propose preserving the right of homeowners to witness election returns and the counting of ballots? SB391 eliminates this right. -Marjorie Murray, President
[BARBARA D.] The Inspectors of Election have no problem placing their cameras focused on the opening and counting of ballots for all Homeowners to view via Zoom. Zoom also allows for their cameras to be the main viewing window for everyone during that process....We are talking about emergency situations only. You are inferring this would be the standard of practice. This is “emergency powers and procedures” revision. Boards must be able to function and make decisions with insurance carriers and local authorities during these situations. The proposed legislation accounts for all of this and answers your question to me. I did read it before sending you the email.

RESPONSE: Ms. Murray's antipathy to this common-sense provision is puzzling. No rights are being taken away from anyone. Senator Min's bill clearly addresses the counting of ballots:

The camera is placed in a location such that members can witness the inspector of elections counting and tabulating the votes. (Senate Bill 391.)

NOTE: Ms. Murray's organization is on the wrong side of four bills that benefit consumers:

   1. SB 391:   Communications during declared emergencies.
   2. SB 392:   Distributing notices and documents via email.
   3. AB 502:   Allowing uncontested elections.
   4. AB 1101: Protecting consumer funds against loss.

She should support these bills, not block them. To urge her to reverse direction, you can email her at [email protected] or call her at (510) 435-6642.

 


Zoom Meetings. Our small association does not have a meeting room. We meet in the parking lot during the Summer months when the weather permits and in a garage during inclement weather and the winter. Most uncomfortable at the best of times. We used to meet in a rented room in the City Library for $10.00 a night. They closed and had a new Library built. The meeting rooms in the new Library want $90.00 an hour with a minimum of 2 hours. The Senior Center rented rooms for $40.00 but the distance was quite far from our complex. Meeting in the garage restricts us to be able to accommodate approximately six homeowners plus the board. The pandemic did bring out some hope. -Don C.

RESPONSE: That is one of the problems with the existing statute; it makes no provision for associations that don't have anywhere to meet. Once the emergency provision passes, we should remove the physical location requirement for associations that do not have one.

Election by Acclamation #1. AB 502 is certainly a welcomed bill. If it becomes law, just wondering how associations with governing documents that allow nominations from the floor will be affected. Will that provision be considered contrary to the bill as the nominees would be elected by acclamation as of the nomination deadline? –Jean A.

RESPONSE: Language in the bill appears to address that issue indirectly:

(g) Notwithstanding the secret balloting requirement in subdivision (a), or any contrary provision in the governing documents, when, as of the deadline for submitting nominations provided for in subdivision (a) of Section 5115, the number of director nominees is not more than the number of vacancies to be elected, as determined by the inspector or inspectors of the elections, the director nominees shall be considered elected by acclamation... (Assembly Bill 502.)

To avoid any confusion, bylaws should be amended to remove write-ins and floor nominations (plus cumulative voting and quorum requirements for the election of directors).

Election by Acclamation #2. The acclamation provision is essential for smaller associations. Our owners do not have the wherewithal to pony up for complicated and expensive nominations and elections processes. Most of us know everyone in the complex and are grateful that people are willing to volunteer to serve. -Doris B.

RESPONSE: Ms. Murray's SB 323 made elections complicated and expensive. Associations throughout California are suffering under the heavy burden her organization imposed on them. AB 502 by Assembly Member Davies provides some relief. It's a good bill that benefits consumers.

 

 

Federal Update. OSHA has decided that any adverse reaction to vaccines, where an employer required employees to be vaccinated before returning to work, would be considered a workplace incident and subject to all OSHA standards of coverage. If employees take the vaccine voluntarily (not as a requirement for returning to work), any adverse reactions will not be deemed work-related. There are three FAQs from OSHA that are helpful to review.

Statewide Update. The State has indicated that it will align with the CDC’s face mask guidance on June 15, 2021.

The CDPH issued new Guidance for Women who are Pregnant or Breastfeeding.

The CDPH issued a Face Covering Fact Sheet.

The following Counties changed Tiers: Amador (Orange Tier to Yellow); Santa Clara (Orange to Yellow); Santa Cruz (Orange to Yellow); Tehama (Red Tier to Orange).  

Northern California. Alameda County issued the 5/19/21 Joint Statement From Bay Area Health Officers re: following State Masking Guidance. Appendix A for the County Orders has been updated.

Contra Costa County issued the 5/19/21 Joint Statement From Bay Area Health Officers re: following State Masking Guidance.

Fresno County issued a 5/17/21 Press Release re: CDPH Masking Guidance.

Madera County issued a 5/17/21 Masking Statement.

Marin County issued a 5/20/21 Press Release re: Encouraging Vaccination.

Mono County issued a 5/17/21 Press Release re: Vaccine Eligibility for Those 12 and Up. The County issued a 5/18/21 Press Release re: Mask Mandate in Effect Until June 15.

Monterey County issued a 5/18/21 Press Release re: Bay Area Health Officials Joint Statement re: following masking guidance until June 15.

Sacramento County issued 2021 Pool Guidance.

San Francisco issued a 5/20/21 Press Release re: Additional Reopenings in Yellow Tier.

San Mateo County issued a 5/19/21 Bay Area Health Official Joint Statement re: masking guidance in place until June 15.

Santa Clara County moved to the Yellow Tier and issued an updated Health Order with significant changes. The County also updated their masking guidance.

Santa Cruz County moved to the Yellow Tier and issued a 5/18/21 Press Release re: Move to Yellow Tier. The County issued a 5/19/21 Bay Area Health Officer Joint Statement re: face mask requirements in place until June 15.

Sonoma County issued a 5/16/21 Press Release re: 70% of Those 16+ Are Partially Vaccinated. The County issued a 5/19/21 Bay Area Health Officers Joint Statement re: State masking mandate in place until June 15.

Tehama County moved to the Orange Tier and issued a 5/19/21 Press Release re: Move to Orange Tier.

Tulare County issued a 5/21/21 Press Release re: Pop Up Vaccination Clinics.  

Southern California. Los Angeles County revised its Health Order for professional services, such as legal, payroll, and accounting, when providing services that are legally mandated, should follow protocols for informal social gatherings and social distancing. Protocols for: Reopening of shared residential swimming pools updated to allow indoor pools, hot tubs, saunas, steam rooms, restrooms, showers, and locker rooms to reopen at 50% capacity. Also updated cleaning requirements to align with the CDC. Live Events and Performances (Outdoor Seated) and Live Events and Performances (Indoor Seated)

City of Los Angeles updated its Safer LA order to align with the County’s move to the yellow tier.

Orange County revised Health Order to align with move to yellow tier. Press Release from OC Health Care Agency regarding continuing to follow the State’s guidance for facial coverings. Press Release regarding County’s move to yellow tier.

Riverside County Press Release regarding clinics in Menifee and Beaumont closed as the County shifts focus on mobile teams to deliver vaccinations. Press Release regarding the County has contracted with United Lab Services to provide vaccinations to residents that are homebound.

San Diego County Press Release regarding more than half of the County's eligible residents are fully vaccinated and the County continues to add more mobile vaccine events. Press Release local teens discussing getting their vaccine shots at newly opened Jacobs Center Site and plans once fully vaccinated. Press Release County will continue to follow state guidelines for facial coverings until the expected reopening of the state on June 15th.

San Luis Obispo County Press Release County will continue to follow the State’s guidance for facial coverings. 

San Bernardino County Press Release regarding current facial covering requirements.

Santa Barbara revised Health Order to align with orange tier and expanded some capacities for family entertainment centers and skating rinks. Is it normal to feel anxious easing back into life after COVID-19?

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

More Good Consumer Legislation

May 16, 2021 0 Views 0 Comments
SENATE BILL 392
EMAIL NOTICES & DOCUMENTS


Senator Bob Archuleta, representing the 32nd District (portions of Los Angeles County and Orange County), authored Senate Bill 392. The bill makes email the default method for associations to deliver notices and documents to their members.

Cost Savings. Currently, HOAs are required to print hundreds of pages of documents annually and physically distribute them. For medium to large associations, this is costly and inefficient. By making email the default method for delivery, associations can reduce expenses and avoid delays caused by the postal system.

Going Green. Distributing notices and documents via email is also kind to the environment. It reduces negative environmental impacts by reducing the amount of paper headed to landfills. Another significant benefit is that homeowners are more likely to store important documents electronically for future reference.

Handicapped. Another important benefit is that visually impaired members can more easily read electronic notices or have them read to them by computer programs. The same is true for those who do not speak English — computer programs can translate electronic documents into the person's primary language. These are significant benefits which are readily available online at no cost to consumers if documents are electronic rather than paper.

Paper Still Available. For those who prefer paper, they still have the option of requesting that documents be delivered by traditional mail as is done now.

Safeguards. Currently, there are no safeguards regarding an association's use of a member's email address. The bill adds safeguards by prohibiting associations from selling a member’s personal information or transmitting it to a third party without the consent of the member or as required by law. It gives members the right to bring an action against an association and recover attorneys' fees if they violate this prohibition.

Marjorie Murray. CAI's California Legislative Action Committee will alert everyone when it is time to send emails to legislators asking for their support of the bill. Despite the benefits Senator Archuleta's bill brings to consumers, the disabled, and the environment, Marjorie Murray's Center for California Homeowner Association Law (CCHAL) is on record opposing the bill.
 

ASSEMBLY BILL 502
UNCONTESTED ELECTIONS


Assembly Member Laurie Davies, who represents the 73rd District, encompassing southern Orange County, authored the much-needed Assembly Bill 502.

Existing law allows for elections by acclamation, but only if an association has 6,000 or more members. AB 502 removes that restriction and extends to all associations the cost savings of elections by acclamation.

Making Quorum. As boards already know, very few associations can make quorum on the first try at their annual meetings. That means meeting adjournments, pleas for members to return ballots, and rescheduling inspectors of election. Some associations never make quorum and existing boards continue in office indefinitely.

Uncontested Elections. The problem is exacerbated when elections are uncontested. It means members are forced to bear the expense of mailing out ballots and multiple meeting adjournments for lack of quorum, despite the fact that the outcome of the election is already known because the number of candidates is less than or equal to the number of open seats.

Cost Savings. AB 502 eliminates all these expenses when the election is uncontested. The cost savings now enjoyed by large associations will be extended to all associations, regardless of size. In addition to saving money, it eliminates the quorum problem so directors can be elected who would otherwise not be seated for lack of quorum.

Marjorie Murray's CCHAL. As might be expected, Marjorie Murray's Center for California Homeowner Association Law (CCHAL) is on record opposing the bill. If their opposition to Assembly Member Davies's election bill and Senator Archuleta's electronic documents bill is successful, CCHAL will continue to burden consumers with higher costs.


Many readers contacted Ms. Murray questioning her opposition to Senator Min's emergency meeting bill, and were unhappy with her responses. I can't print them all. Following are just a few. -Adrian

Marjorie Murray #1. I wrote to Marjorie Murray to withdraw her opposition to SB 391. Following is her response. I’m not sure why she felt it needed to be highlighted but I found it to be a very rude response. Thanks so much for your informative newsletters. -Michele P.

Michele — Adrian Adams says the bill “gives” HOAs the right to convene electronic (zoom) meetings. This is a falsehood. HOAs had had this right for ten years — since 2011 — when SB 563 was signed into law..

What Adrian Adams is hiding from you is that SB 391 eliminates the right of homeowners to witness election returns and the counting of ballots, including elections that set special assessments.

I urge you to read and to STUDY SB 391.

RESPONSE: It’s truly remarkable how misguided is Ms. Murray's opposition to this bill. She refuses to acknowledge that Senator Min dispenses with a physical location so boards and HOA members can more easily communicate during declared emergencies. She also refuses to recognize specific language in the bill that allows members to witness the counting of ballots. Another reader received a similar response where Marjorie shouted at the consumer in all CAPS and highlighted everything in yellow.

Marjorie Murray #2. FYI, Can’t believe this response!!! Nothing makes sense with this person!! -U.H.

RESPONSE: I agree, Ms. Murray's hostility toward consumers who live in associations is hard to understand. She must have had a bad experience with an association once and decided to wage war against all associations.

Marjorie Murray #3. I just wanted to put in my two cents about Marjorie Murray and her inexplicable stance on issues concerning HOAs. I emailed her for the first time about one of her bills and instead of clarifying her stance, she was very defensive and called y'all a bunch of liars. This is the juvenile trouble maker we are faced with. It appears she's in it just to make a name for herself and not in a good way. Whomever voted her in or appointed her needs to get a clue to her destructiveness & get her out! -Heidi A.

RESPONSE: Nobody elected her. Marjorie Murray appointed herself as a lobbyist. Even though she is not a lawyer, she is CEO of the Center for California Homeowner Association Law (CCHAL) — an organization that refuses to release a list of its members and hides the source of its funding. Two years ago, CCHAL sponsored the dumpster fire SB 323 that complicated elections for 9 million residents of associations and turned them into costly four-month ordeals that consumers must endure each year. CCHAL is now on the wrong side of four more bills:

1. SB 391: Communications during declared emergencies.
2. AB 1101: Insuring association funds against loss.
3. SB 392: Distributing notices and documents via email.
4. AB 502: Allowing uncontested elections.

Ms. Murray should support these bills, not oppose them. To urge her to reverse direction, you can reach her at [email protected] or call her at (510) 435-6642.

SB 391. I actually wish Senate Bill 391 went a step further and permitted 100% electronic attendance for all meetings, not just during emergencies. Working people like us don't typically have the opportunity to attend any but annual meetings (always on a Saturday), because the regular monthly meetings are held on weekdays. Participating in regular meetings electronically has been a real eye-opener. -Erica G.

RESPONSE: Many readers expressed the same sentiment. In addition, too many associations lack facilities for in-person meetings. They meet in garages or alleyways or rent offsite facilities so that everyone has to drive. At a minimum, the statute should eliminate the requirement of meeting at a physical location for associations that don't have them.

 

 

 

Federal Update: CDC Updated the following guidelines:

When You've Been Fully Vaccinated;

People with Certain Medical Conditions;

How to Set Up Safe Watering Points;

Key Things to Know about COVID-19 Vaccines;

Frequently Asked Questions about COVID-19 Vaccination;

Living in or Visiting Retirement Communities;

Travel Requirements of Proof of Negative Test or Recovery for All Air Passengers Arriving in the US

Statewide Update. The State issued a 12/11/21 Press Release re: Vaccinations for Those 12-15.

5/13/21 Press Release re: Pfizer Vaccine Minor Consent Guidance.

5/13/21 Guidance for Overnight Camps.

The following Counties have changed Tiers: Madera (Red Tier to Orange); Mono (Orange Tier to Yellow); San Mateo (Orange Tier to Yellow).

Northern California. Alameda County issued a 5/13/21 Press Release re: Vaccine Availability for Those 12-15.

Butte County issued  5/13/21 Press Release re: Vaccination for Those 12-15. The County issued a 5/14/21 Press Release re: State Masking Mandate Still in Effect.

Contra Costa County issued a 5/12/21 Press Release re: Vaccine Availability for Those 12-15. The County issued 5/14/21 Press Release re: Vaccine Clinics to Open in Schools

Fresno County issued a 5/13/21 Press Release re: Vaccination Availability for Those 12-15. The County issued a 5/14/21 Press Release re: State Face Mask Guidance Still In Place Despite CDC Guidance.

Madera County moved from the Red to Orange Tier and issued Guidance re: Re-opening.

Marin County issued a 5/13/21 Press Release re: Vaccination for Those 12-15 Beginning.

Mono County moved to the Yellow Tier and issued a 5/11/21 Press Release re: Move to Yellow Tier.

Monterey County issued a 5/13/21 Press Release re: Vaccination of Those 12-15.

Placer County has a sample pool plan that has been added to the chart.

San Joaquin County issued a 5/7/21 Press Release re: County Filing Brief Supporting Small Business Challenge to State Blueprint.

San Mateo County moved to the Yellow Tier and issued a 5/11/21 Press Release re: Move to Yellow Tier and Aligning with State Masking Guidelines. The County issued a 5/13/21 Press Release re: Vaccine Access to East Palo Alto. The County issued 5/13/21 Press Release re: Vaccine Availability for Those 12-15.

Santa Clara County issued a 5/12/21 Press Release re: Vaccine Availability for Those 12-15.

Stanislaus County issued a 5/10/21 Press Release re: Mobile Vaccine Clinics. The County issued a 5/13/21 Press Release re: Vaccine Availability to Those 12-15. The County issued a 5/14/21 Press Release re: Variant Found in County.

Sutter County and Yuba County issued 5/7/21 Press Release Rescinding Facial Covering Order to Comply with State Guidance.

Tulare County issued a 5/12/21 Press Release re: Vaccination Availability.

Tuolumne County issued a 5/7/21 Press Release re: Variant Found in County.


Southern California. Imperial County Press Release from May 6, 2021 regarding update on vaccination rollout, including shifting to indoor clinics due to warm weather.

Los Angeles County Press Release County begins to vaccinate youths 12 to 15 years old and nearly 70% of County residents over 64 received their second dose of the vaccine. Revised the following protocols: Informal Social Gathering updated the fully vaccinated people section with CDC guidance. Golf Courses: up to five players from different households can be in same playing group. Fully vaccinated persons can take off mask while playing on the course. Persons not vaccinated must continue to wear a mask on the course. Reduction of cleaning to align with CDC cleaning guidance. Private Events (Meetings, Receptions, and Conferences): if eating or drinking at the event, can only eat or drink at assigned seating and may not eat or drink elsewhere in the facility. Indoor Live Events provided a summary table at end of the document.

Kern County Press Release regarding water safety. Press Release Youths 12-15 are now eligible for Pfizer Vaccine.

Riverside County Press Release Youths 12-15 are now eligible for Pfizer Vaccine. Press Release City of Palm Springs to reopen indoor recreational facilities to the public in reduced capacity.

Press Release City of Palm Springs in addressing the CDC guidance for face coverings recently released, the City will continue to follow current face covering guidance from California Department of Health.

San Bernardino County Press Release City of Fontana returns to in-person summer recreation programs, including recreation open swim, summer camps, and senior centers.

San Diego County Press Release regarding youths aged 12 to 15 years are starting to receive vaccine shots around the County.

Santa Barbara Do I Still Need to Wear a Mask if I've Been Fully Vaccinated? Plus a Press Release regarding changing strategy for vaccination to meet the needs of the community, including partnering with local schools.

Ventura County Press Release youths aged 12-15 are now eligible for Pfizer Vaccine.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

 

 

Insuring HOA Finances - AB 1101

May 9, 2021 0 Views 0 Comments

An important bill was put forward by Assembly Member Jacqui Irwin, a Democrat representing the 44th Assembly District (Ventura County and Westlake Village).

Assembly Bill 1101 establishes much-needed protections for association funds. It prohibits investing HOA monies in stocks or high-risk investment options and requires funds be deposited into accounts that protect the principal, such as  those insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration Insurance Fund.

 
Her bill expands insurance requirements to cover not only dishonest acts by HOA directors, officers, and employees, but also dishonest acts by a managing agent or a managing agent’s employees. In addition, it increases protections against computer fraud and funds transfer, and requires insurance in an amount equal to or greater than the combined amount of an association's reserves and three months of assessments.

CCHAL Opposition. I can't imagine opposition to protecting association funds. Nevertheless, Marjorie Murray's Center for California Homeowner Association Law (CCHAL) is on record opposing the bill. Ms. Murray is again on the wrong side of an issue. Even members of the Judiciary Committee who heard the bill had trouble understanding her opposition. Ms. Murray's hostility to consumer protection is baffling. I encourage readers to ask Ms. Murray to drop her opposition to AB 1101. You can email her at [email protected] or call her at (510) 435-6642.
 
FEEDBACK ON MARJORIE MURRAY'S
OPPOSITION TO SB 391


Last week, we discussed Senate Bill 391, a bill authored by Senator Dave Min, a Democrat from Orange County. Senator Min offers a common-sense solution to assist homeowners communication with their boards and vice versa during declared emergencies when meeting in a physical location is not possible.

Inexplicably, Marjorie Murray's Center for California Homeowner Association Law (CCHAL) opposes the bill. Readers emailed Ms.  Murray to find out why. Following is one of the exchanges:

[Dear Ms. Murray] We are exactly the vulnerable demographics you have claimed to protect — -non-affluent, elderly, minority, disabled — and yet it appears we are bearing the burden of most every legal change YOU SUPPORT and receiving no benefit as you are solving problems we don’t have or fighting legislation that will help us!

So please explain how the bills you support, or in this case you fight ... are helping me and my neighbors. We only see our association wasting money and exhausting the very few owners who are trying to serve our even more vulnerable owners. Our job has become more difficult due to your “service” to the vulnerable ... us. We are 98% owner-occupied so it appears to me you are jeopardizing OUR HOMES to protect SOME DONORS’ financial interest. If I’m wrong, please explain.

Sincerely,
Ms. S. Vincent

FOR TEN YEARS NOW HOMEOWNER ASSOCIATIONS HAVE HAD THE RIGHT TO HOLD ELECTRONIC MEETINGS BY VIDEO OR BY PHONE, SO WHY IS THIS BILL NECESSARY?

Marjorie Murray, President
Center for California Homeowner Association Law
www.calhomelaw.org
3758 Grand Ave, Suite 56
Oakland, CA 94610
Ph: 510.435.6642
[email protected]

[Dear Adrian] Sorry, but I don't think Marjorie Murray even read the Bill. -D. Cook-Whitlatch

RESPONSE: I don't think she did either. In her emails, Ms. Murray shouted at consumers with responses in all caps like the one above. Also, I'm having trouble following her logic. In another email exchange with a reader, Marjorie said the bill should be opposed because some people don't have access to the internet. People who are scattered by a disaster can always get access to the internet — it's gathering in a physical location that's the problem.

No Physical Location. Marjorie missed the whole point of Senator Min's bill — he lifts the requirement of meeting at a physical location during emergencies. Senator Lin makes it easier for HOA boards and homeowners to conduct urgent business during emergencies.

Counting Ballots. Senator Min also builds in protections so members can witness ballot counting when elections are held remotely. The bill specifically requires that meetings at which ballots are counted have a camera placed "such that members can witness the inspector of elections counting and tabulating the votes."

CCHAL Harms Consumers. As Ms. Vincent put it so well, Ms. Murray is hurting the very consumers she claims to represent. We urge Ms. Murray to read Senator Min's bill and support rather than oppose it. Please email Ms. Murray at [email protected] or call her at (510) 435-6642 and urge her to support Senate Bill 391.

 

HOW TO SAFELY REOPEN
FACILITIES


Our Firm has been conducting training sessions with management companies on how to safely reopen association amenities.

Chart of Counties. As readers know, our attorneys have been charting the ever-changing COVID guidelines throughout California, which we then publish weekly.

Less Restrictive. The State is loosening its restrictions and boards are asking what they need to do to reopen their facilities. Because the pandemic is not over and COVID-19 is still a threat, our training sessions cover CDC guidelines, insurance issues, waivers, signage, vaccine/testing requirements, and adopting rules for using amenities, followed by a question-and-answer period for managers.

Scheduling. If management companies would like us to conduct a training session with their managers, contact Miranda Ward to schedule NorCal presentations and Candace Schwartz for SoCal presentations.

Rule Updates. Associations that don't have COVID rules and need them to reopen their facilities, or already have rules but need to update them to meet changing guidelines, can contact us.

 


SB 9 & 10. Thanks for the alert on the legislation to allow more dwellings on existing lots. This is unfortunately the potential of government playing checkers instead of chess, reaching for short-term Band-Aids, resulting in more severe problems in the future. -Leland B.

Our sincere thanks to your newsletter for keeping us informed. -Elaine J.

Thank you for this informative treatise. -Bruce C.

Always interesting to read, very informative. -Dee O.

BBQs. Hello I am the president of the Kjergaard condominiums in Solvang, California. It is my understanding that California fire code prohibits any kind of open-flame BBQ within 10 feet of a wood frame structure in a complex of more than two units. Electric barbecues are allowed. Wanted to share –Karen G.

 

 

Federal Update. The CDC Updated the following: Consideration for Multi-Family Housing Including Apartments, Condominiums, and Townhouses; FAQ about COVID-19 Vaccination; COVID-19 Travel Recommendations by County; Managing COVID-19 Stress for Teens and Young Adults; Returning to Work 

Statewide Update
. The State issued a 5/4/21 Press Release re: Vaccines promoting efforts toward hard-to-reach communities.

The CDPH issued 5/3/21 Recommendations for Fully Vaccinated People. The CDPH issued updated facial covering guidance.

The following Counties changed Tiers: Inyo (Red Tier to Orange); Los Angeles (Orange to Yellow); San Francisco (Orange Tier to Yellow); Trinity (Orange Tier to Yellow).

Northern California. Alameda County issued a 5/5/21 Press Release re: Coliseum Vaccination Site Closing and community-based sites being used.

Contra Costa County issued a 5/3/21 Press Release re: Availability of Vaccine to Everyone.

Marin County issued an updated Health Order to reflect where the County is in the Tier categories. The County is also following the CDPH guidance for facial coverings.

San Francisco County moved to the Yellow Tier and issued a 5/4/21 Press Release re: Yellow Tier. The County issued a new Health Order related to this change. Their pool and gym guidance has been updated along with their gathering guidance and other areas. The County issued a 5/6/21 Flowchart re: Applicable Gathering Guidance.

Santa Cruz County issued a 5/3/21 Order Rescinding Facial Covering and Gathering Guidance Orders and deferring to the CDPH guidance.

Sonoma County issued a 5/6/21 Press Release Indicating Half of the County's Population is Vaccinated.

Yolo County has updated their pool guidance and pool protocol.


Southern California. Los Angeles County Press Release regarding updated Health Order to align with moving to yellow tier, which includes gyms can operate indoors at 50% capacity. Similarly, indoor dining for restaurants can operate at 50% capacity. Bars can operate indoors at 25% capacity or 100 people, whichever is fewer.

Revised reopening protocols:

Gyms and Fitness Establishments: indoor hot tubs, saunas and steam rooms may reopen for use.

Short-Term Rentals

Live Events (Outdoor Seated): increased to 67% capacity. Fully-vaccinated seating sections reduced to 3 feet of distancing and can be at 100% capacity for that seating section, as long as the venue capacity of 67% is not exceeded.

Live Events (Indoor Seated): Venues of up 1500 people, maximum occupancy is 25% or 300 people, whichever is fewer. Can be up to 50% occupancy if all guests show a recent negative test result or show proof of full vaccination.

Office Worksites: Up to 75% of maximum occupancy. Office workplaces that only permit fully vaccinated employees may seat employees closer than 6 feet apart.

Private Events (Meetings, Receptions, and Conferences): outdoor events with 100 or fewer people, fully vaccinated attendees do not need to wear face masks. Indoor events with 50 or fewer people, fully vaccinated attendees do not need to wear face masks.Restaurants: televisions can be turned on in both indoor and outdoor dining areas. Can seat up to six (6) households at a table for six (6) indoors and up to eight (8) households for a table for eight (8) outdoors.

Orange County Press Release: County resumes administration of Johnson & Johnson vaccine. Press Release County to close all Super Point of Dispensing (POD) vaccine sites and shift to mobile POD system starting June 6, 2021.

Riverside County Press Release: Hemet Valley Mall opens vaccine clinic.

City of Palm Springs Press Release: the City rescinds face covering Order to align with CDC guidance regarding face coverings not required for fully vaccinated people outdoors with various exceptions. Those who are not fully vaccinated, still required to wear face covering outdoors when physical distancing cannot be maintained.

San Bernardino County issued a Press Release regarding Fire & Ice Cream vaccine events to start this week by hosting pop-up vaccination events in neighborhood parks, with a street parade of County fire trucks, County mobile vaccine van, ice cream trucks and churro wagons. Also, four testing sites have been converted to vaccination sites that makes appointments and also accepts walk-ups (Montclair Place,  National Orange Show Event Center, Rancho Cucamonga Sports Complex, Columbia Middle School).

San Diego County issued a revised Health Order to align with the state’s updated guidance for facial coverings. Further, indoor and outdoor recreation is following applicable state guidance.

Santa Barbara issued a Press Release from County Health Officer entitled, “The Good Outweighs Concerns for COVID-19 Vaccination.”

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Legislation on Lot Splits

May 2, 2021 0 Views 0 Comments

The one good thing to come out of the pandemic last year was the significantly reduced legislative activity in Sacramento. It meant we did not have to hold so tightly to our wallets.

Unfortunately, legislators are back in session and more legislation is being pushed through — some good and some bad.

My partner, Nathan McGuire, is a member of the Community Association Institute's California Legislative Action Committee (CAI-CLAC) and will report on some key bills from week to week. Below is his report on SB 9 & SB 10.
-Adrian

SB 9 LOT SPLITS
AND SB 10 ZONING


Senate Bills 9 and 10 both have negative consequences for associations. SB 9 will allow two homes on every lot zoned for single family homes. It will require local jurisdictions to administratively approve duplexes or lot splits. When coupled with recent ADU legislation, it means existing single family lots in a planned development could end up with 6 dwellings per lot instead of one.

Negative Consequences. The League of California Cities opposes the bill, as does CAI-CLAC. While we understand the need for more affordable housing, this approach doesn’t make sense in the context of an HOA. It would mean increasing the burden on amenities, parking, roads, utility infrastructure, and other facilities not designed for it. In addition, associations would have to amend their governing documents, maps, voting structures, and assessments every time a lot is split. This would be costly for associations.

Multi-Family Zoning. SB 10 is similar. It directs cities to streamline the re-zoning of single family lots to up to 10 units per lot if they are in a jobs-rich, transit-rich, or urban infill area, as designated by the Department of Housing and Community Development. HOAs could not stop the approved construction. In other words, a single family lot in an HOA could be up-zoned and an association could not stop a 10-unit apartment building from being constructed. Like SB 9, this would be a logistical and practical nightmare for associations.

CALL TO ACTION. CAI-CLAC has issued a Call to Action on SB 9 and is working on the response on SB 10. Please click on our Call to Action and send an email to the Legislature asking them to VOTE NO on SB 9. -Nathan McGuire

SB 391 VIRTUAL MEETINGS
IN EMERGENCIES

 

A piece of good legislation is Senate Bill 391. It allows associations to conduct meetings by video conference during a state of emergency, as is now being done via Zoom and other video platforms.

Physical Location. Under current law, boards must designate a physical location where members can meet to listen to board meetings when the meeting is by video or teleconference.

None Available. During an emergency, gathering in a physical location is not always possible. For example, the 2018 Camp Fire was the most destructive wildfire in California's history and wiped out entire associations, displacing all HOA members; the 1994 Northridge Earthquake destroyed thousands of buildings, displacing entire memberships; and the current pandemic prevented gatherings of any size, anywhere, affecting every association in California. In each case, members needed to address important issues, but could not gather in a physical location.

State of Emergency. SB 391 authorizes associations to meet by video or teleconference without the need for a physical location when (i) a state of disaster or emergency has been declared by the federal government; (ii) a state of emergency has been declared by the Governor; or (iii) a local emergency has been proclaimed by a local governing body or official.


Marjorie Murray Opposition. Unfortunately, Marjorie Murray's Center for California Homeowner Association Law (CCHAL) is on record opposing the bill. I cannot see a rational basis for her opposition. It's a common sense solution in a declared emergency. You might politely ask Ms. Murray to withdraw her opposition to the bill by sending her an email.

Feedback. I received feedback from a reader that people should not blame Ms. Murray for drafting bad legislation and persuading legislators to carry her bills. Instead, homeowners should blame legislators who vote for her legislation. I agree that some blame rests with legislators, which is why we need to educate them on the merits of particular bills. CAI-CLAC is our voice in Sacramento. To that end, readers should support their efforts to fight bad legislation and encourage good legislation. When the time is right, we will alert everyone to send emails in support of SB 391. -Adrian

Charcoal Grills. In our association, every unit owner has a charcoal grill on their tiny patio. Our CC&Rs require the board to maintain property and casualty insurance. No insurance company will write us unless we agree to eliminate charcoal grills. What do we do? –Glen G.

ANSWER: Immediately prohibit charcoal grills and ask your insurance carrier if they will allow propane grills. Premiums on fire insurance are skyrocketing everywhere in California, and many associations are reporting cancellations. You should do everything possible to make your association as fire-safe as possible.


Executive Session Meetings. Davis-Stirling lists confidential subjects that may be discussed in executive session. Are boards limited to only those subjects? -Luka R.

ANSWER: The Davis-Stirling Act's list is not exhaustive when it comes to matters that should be discussed in executive session. Civil Code §4935 lists five matters:

   1. Litigation;
   2. Formation of contracts;
   3. Member discipline;
   4. Personnel matters; and
   5. Delinquent owner payment plans.

However, there are other matters that require confidentiality, such as:

   6. Initiating foreclosure (Civil Code §5705);
   7. Disability requests (Calif. Code of Regs. 12176);
   8. 
Seeking legal advice on terminating a contract;
   9. Discussing possible censure of a director;
 10. 
Discussing problems related to the mental illness of a member; and
 11. Seeking legal advice on issues of potential liability.

Open Meeting Matters. If a matter does not fit into one of the above eleven categories, it must be discussed in an open meeting in front of the membership.

 

Federal Update. US Department of Health & Human Services issued a renewal that a public health emergency still exists nationwide.

The CDC issued What to Know about Possibility of COVID-19 Illness After Vaccination. It updated COVID-19 Vaccination and When You've Been Fully Vaccinated. It also updated Guidance for Organizing Large Events and Gatherings.


Statewide Update. The CDPH issued a 4/24/21 Statement supporting the FDA and CDC decision to resume use of the Johnson &Johnson vaccine.

Governor Newsom issued a 4/27/21 Press Release re: CDC Outdoor Masking Guidance.

The following Counties changed Tiers: Amador (Red Tier to Orange); Calaveras (Red Tier to Orange); Fresno (Red Tier to Orange); Glenn (Red Tier to Orange); Kings (Red Tier to Orange); Mendocino (Orange Tier to Yellow); Mono (Red Tier to Orange); San Luis Obispo (Red Tier to Orange); Santa Barbara (Red Tier to Orange); Sutter (Red Tier to Orange).


Northern California. Alameda County issued a 4/25/21 Press Release re: Johnson & Johnson Vaccine.

Contra Costa County issued a 4/25/21 Press Release re: Johnson & Johnson Vaccine. The County issued a 4/26/21 Press Release re: 1 Million Vaccines Administered. The County issued new guidance for pools.

Fresno County moved to the Orange Tier and issued a 4/20/21 Press Release re: Move to Orange Tier. The County issued a 4/21/21 Guidance re: School Surveillance.

Lake County issued a 4/23/21 Press Release re: 50% of County Partially Vaccinated.

Madera County issued a 4/19/21 Press Release re: Guidance for K-12 Performing Arts.

Marin County issued a 4/20/21 Press Release re: Remaining in Orange Tier as a result of an increase in cases. The County issued a 4/26/21 Press Release re: Updated Plan for Vaccines. Marin County issued Pool Reopening FAQs

Mendocino County moved to the Yellow Tier and updated their Order to reflect these changes.

Mono County moved to the Orange Tier and issued a 4/20/21 Press Release re: Move to Orange Tier. Mammoth Lakes issued a 4/15/21 Order Extending Restaurant and Retail guidelines.

Monterey County issued a 4/23/21 Press Release re: Residents Required to Follow State Gathering Guidance. Monterey County issued a 4/28/21 Press Release re: Residents Required to Follow State Face Mask Requirements.

Sacramento County issued a 4/15/21 update to pool guidelines.

San Francisco has updated gym guidance.

San Mateo County issued a 4/22/21 Update which indicates that the County may move to the Yellow Tier May 4. The County issued a 4/26/21 Press Release re: Johnson & Johnson Vaccine. The County issued a 4/27/21 Press Release re: Vaccine Appointments Available due to increased supply.

Santa Clara County issued a 4/23/21 Press Release re: One Million Residents Vaccinated. The County issued a 4/25/21 Press Release re: Johnson & Johnson Vaccine. The County issued a 4/26/21 Press Release re: Updated Vaccination Data.

Santa Cruz issued a 4/25/21 Press Release re: Johnson & Johnson Vaccine. The County issued a 4/26/21 Vaccine Interest Survey for Homebound Individuals.

Sonoma County issued a 4/20/21 Press Release re: Vaccine Milestone. The County issued a 4/26/21 Press Release re: Resuming Johnson & Johnson Vaccine.

Tehama County issued a 4/23/21 Press Release re: Vaccines.


Southern California. Los Angeles County Press Release regarding County is beginning to meet yellow tier threshold. Issued guidance on return to work guidelines for employees who develop systemic symptoms post-vaccination and are differentiated from symptoms that are not associated with vaccination. Updated protocols for the following areas: Bars; Informal Social Gatherings; Libraries; Live Indoor Events; Live Outdoor Events; Public Pools (the County has not updated residential pools protocols yet for indoor pools but the public pools protocols may provide insight on recommendations); Private Events (Meetings, Receptions, and Conferences); Restaurants; Short Term Rentals.

City of Los Angeles updated its Safer LA Order to align with the County’s Public Health Order.

Orange County Press Release regarding closure of Disneyland Drive-Thru vaccination site as of April 30, 2021.

Riverside County Press Release regarding move of vaccine site from Lake Elsinore Diamond Stadium to Lake Elsinore outlet mall. Press Release regarding reinstatement of Johnson & Johnson vaccine in County.

San Diego County Press Release no masks required outdoors in public for fully vaccinated persons unless in a crowd. Press Release all County vaccine sites now accepting walk-ins.
Press Release two deer mice test positive for hantavirus in Boulevard and how to keep safe from the virus.

San Bernardino County residents can apply for up to 12 months of rent relief from arrearages accruing from March 13, 2020 to present at the County’s site, https://www.sbcrentrelief.com, which will continue through end of the year or until all funds are exhausted.

Santa Barbara revised its health order to align with Orange Tier. Further, the County is now following the State’s mask and gathering guidelines. Press Release "I’ve been vaccinated! Now What?" Press Release County resumes Johnson & Johnson vaccine.

Ventura County Press Release County resumes Johnson & Johnson vaccine.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Backyard Sign Abuts Neighbor

Apr 18, 2021 0 Views 0 Comments

QUESTION: Should this sign be allowed in the back yard of an owners’ home? It can be seen from the neighbor’s backyard. The owners are in a feud which began with a noisy hot tub which resulted in retaliation with a noisy air compressor. Any advice is welcomed. -Anon

ANSWER: If the board gets involved, there might be no "end" to the dispute. "But," the board could have a role to play.

Harassment Defined. California defines harassment as a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress. (Code Civ. Proc. §527.6(b)(3).) The sign is annoying but I doubt it would cause substantial emotional distress. If the neighbor feels harassed, he has recourse through the courts.

No Protected Category. If the dispute involved harassment based on race, color, religion, national origin, sex, familial status, or disability, the board is obligated to investigate and take appropriate action. Since the dispute is over noise unrelated to a protected category, there is no statutory requirement for board involvement.

Nuisance. The sign could be deemed a nuisance under the CC&Rs and ordered by the board to remove it. However, the owner could argue he is exercising his free speech rights and refuse. The board would then need to schedule a hearing and impose fines. If the owner continued to refuse, the association would need to file a lawsuit with no guarantee of the outcome. 


Escalation. The best argument for board involvement is to avoid escalation of the dispute. If the feud is not ended, the neighbors could soon be flipping off each other, installing bright security lights and cameras aimed at each other, postings ugly comments on social media, and possible physical altercations. It then becomes a bigger problem for the association.

RECOMMENDATION. I recommend a board member informally meet with the two, either separately or together, in an attempt to deescalate things. As someone once said, "Blessed are the peacemakers." My second recommendation is to adopt an Anti-Harassment Policy.

MUTING DIRECTORS IN
ZOOM MEETINGS


QUESTION: Is it legal for the board to adopt a rule where a director's mic would be muted in Zoom meetings if he speaks out of order, has outbursts or interrupts other directors? This was proposed. One board member asked if it was legal. -Anon

ANSWER: Yes, it's legal. There is no inherent right of a director to disrupt meetings, filibuster motions (a prolonged speech that obstructs progress), bully other directors, or engage in personal attacks.

Unproductive Meetings. A disruptive director (and disruptive owners) can make it almost impossible for boards to conduct business. They can turn 1-hour board meetings into unproductive 4-hour meetings. It wears out directors and discourages others from serving on the board.

Adopt Procedures. Boards can adopt procedures for the orderly conduct of their meetings. Robert’s Rules of Order and other forms of parliamentary procedure were created for this very purpose. Muting a disruptive director until the President recognizes the person is reasonable. Fortunately, Zoom makes that easy to do.

RECOMMENDATION: A simple motion is all that's needed for the board to adopt procedures for the orderly conduct of business. It does not need to go to the membership for a 28-day review since it's an internal procedure issue rather than a rule applied to the membership as a whole with penalties attached.

ELECT SCOFFLAWS
TO THE BOARD?


QUESTION: Can we prevent homeowners who habitually break the rules from being on the board? –Jeffrey W.

ANSWER: Unfortunately, no. Prior to Marjorie Murray's tinkering with elections, the membership could adopt qualifications that required candidates be in good standing, i.e., not delinquent in assessments or unpaid fines and not in violation of the association's governing documents. In addition, to avoid conflicts of interest, associations could temporarily sideline those in litigation with the HOA until the lawsuit was over. Not any more. For more information, see Candidate Qualifications.

WHAT ARE
GOVERNING DOCUMENTS?


Next in our series of 2-Minute Videos, we describe the differences in an association's various governing documents.

What are CC&Rs, Bylaws, Rules and Condominium Plans? What is their purpose?

  Watch: Governing Documents--What Are They?


Spineless. “There is a large category of spineless ones--I've met a few of them. There are also some without higher brain functions. I've met some of those too. They are generally harmless, until we elect them to office.” I nearly fell on the floor laughing at this one. -Leland B.

Humor. I just love your sense of humor. LOL –Kathy B.

No Mask. No mask??? Which tier is the law firm in?? -Anon

RESPONSE: Herd immunity is right around the corner. Since I've had my two Pfizer shots, I'm part of the herd! I opened the front door of my house for the first time in over a year peeked outside. I actually saw sunlight. I immediately went online and ordered lots of sunscreen.

Love It. Hi, love the newsletter and read it every time! -Adam D.

 

Federal Update. The CDC and FDA issued a statement on the Johnson & Johnson Covid-19 Vaccine.

Statewide Update. CDPH issued 4/15/21 Press Release regarding updated guidance for gatherings.

The CDPH issued a 4/15/21 Press Release re: Those 16+ Eligible For Vaccination.

The following County changed Tiers: Inyo (Purple Tier to Red); Kern (Red Tier to Orange); Lake (Red Tier to Orange); Lassen (Orange Tier to Yellow); Merced (Purple Tier to Red).  


Northern California. Alameda County issued a 4/13/21 Press Release re: County Pausing J&J Vaccine.

Butte County issued a 4/12/21 Press Release re: Vaccine Clinics Closing. The County issued a 4/13/21 Press Release re: County Pausing J&J Vaccine.

Calaveras County issued a 4/14/21 Press Release re: Vaccine Available to Those 16+ and Pausing J&J Vaccine.

Contra Costa County issued a 4/10/21 Press Release re: Those 16+ Eligible For Vaccine. The County issued a 4/13/21 Press Release re: Pausing J&J Vaccine. The County issued a 4/15/21 Press Release re: Walk In Vaccine Clinics Available.

El Dorado County issued a 4/12/21 Updated Blueprint Openings.

Lake County moved to the Orange Tier and issued a 4/13/21 Press Release re: Move to Orange Tier.

Marin County issued a 4/13/21 Press Release re: Pausing J&J Vaccine. The County issued a 4/15/21 Press Release re: Changes in Gathering Guidance.

Mono County issued a new Health Order rescinding certain previous health orders.

Monterey County issued a 4/13/21 Press Release re: Pause in J&J Vaccine.

Nevada County issued a 4/12/21 Press Release re: COVID-19 Variant.

Sacramento County issued a new Health Order. The County issued a 4/9/21 Press Release re: Public Meeting Guidance.

San Francisco County issued a 4/13/21 Press Release re: Those 16+ Eligible Vaccination. The County issued a 4/14/21 Press Release re: Expansion of Businesses and Activities April 15. The County issued a 4/16/21 Press Release re: Expansion of Vaccine Sites.

San Mateo County issued a 4/13/21 Press Release re: Pause in J&J Vaccine. The County issued a 4/15/21 Press Release re: Those 16+ Eligible for Vaccine and Supply Limited.

Santa Clara County issued a 4/10/21 Press Release re: Encouraging Testing As Testing Rates Drop. The County issued a 4/13/21 Press Release re: Vaccine Expansion to Those 16+.

Solano County issued a 4/13/21 Press Release re: Revised Blueprint. The County issued 4/14/21 Press Release re: Expansion of Vaccine Eligibility to Those 16+. The County issued a 4/13/21 Press Release re: Pausing J&J Vaccine.
 
Sonoma County issued a 4/13/21 Press Release re: Pausing J&J Vaccine

Tehama County issued a 4/13/21 Press Release re: J&J Vaccine.


Southern California. Imperial County Press Release regarding vaccine is available for residents 16 and older. Further the press release announced changes to health order, for outdoor singing, chanting, shouting and playing wind instruments is required to be 20 feet from the audience. Playing of wind instruments is prohibited indoors in public and private venues, however singing and chanting is allowed indoors provided, the performers wear a face covering and maintain six feet of social distancing.

Los Angeles County revised health order that includes a new appendix for guidance for informal social gatherings that is currently being written by the County of Los Angeles and will replace the guidance for private gatherings. The revised health order also adds guidelines for private events (meetings, receptions, and conferences). Press Release regarding Pfizer vaccine is available for anyone living or working in the County of Los Angeles who are 16 and older.

Orange County announced that as of April 15, 2021 vaccination appointments are open for everyone 16 and older who lives or works in Orange County. Parental consent is required and people under 18 must be accompanied by a parent or guardian to receive the vaccine. Immigration status is not checked at any time during the appointment and vaccination process.

Riverside County Press Release regarding county is following federal guidance and places a pause on Johnson & Johnson vaccine.

San Diego County Press Release that everyone 16 and older is eligible for the vaccine. Further new guidance on gatherings, private and indoor live events. Outdoor activities allow up to 50 people. Indoor gatherings are strongly discouraged but allow up to 25 people with modifications. Press Release regarding county is following federal guidance and places a pause on Johnson & Johnson vaccine.

San Luis Obispo County Press Release anyone who lives in SLO county aged 16 and over are eligible to sign up for the county’s Covid-19 vaccine registry. Press Release regarding county is following federal guidance and places a pause on Johnson & Johnson vaccine.

San Bernardino County Press Release regarding county is following state and federal guidance and places a pause on the Johnson & Johnson vaccine. Press Release regarding residents can apply for emergency rent and utility relief based on funding from federal Consolidated Appropriations Act of 2021. Residents can apply here.

Santa Barbara County issued an updated health order:

  1. Gatherings outdoor are restricted to 25 people;
  2. Indoor gatherings are strongly discouraged and limited to maximum of 25% capacity where capacity limits exists and up to 3 households or 10 people;

Press Release regarding the county is moving closer to Orange Tier and may take effect as early as April 21, 2021.

Ventura County Press Release regarding county is following federal guidance and places a pause on Johnson & Johnson vaccine.

 
READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 4-16-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Is it Legal for an HOA to Insure What it Does Not Own?

Apr 11, 2021 0 Views 0 Comments

QUESTION: One board member keeps insisting it is illegal for the association to insure something it does not own. Is he right? –Pat Davis

ANSWER: It's not illegal. In a condominium association, common areas are owned by homeowners, each of whom owns an undivided fractional interest, yet the common areas are insured by an entity (the association) that does not have an ownership interest in the common areas.

Insurable Interest. An insurable interest can be established either through direct ownership or contractually, such as a lease or an easement. For associations, an insurable interest is established in the CC&Rs, which obligates the board of directors to insure the common areas. It can sometimes require insurance of structures which are owned by members individually (as with townhouses).

Insurance Trustee. In addition, governing documents often make the board an insurance trustee. As such, it can negotiate and settle claims and receive and distribute insurance proceeds. Depending on the nature of the claim, the board can be authorized to develop bid criteria for repairs, receive proposals from qualified contractors, and award contracts for repairs and reconstruction.

RECOMMENDATION: Boards should have an experienced HOA insurance agent review the insurance provisions in their governing documents to make sure their policies meet the association's needs.

Many thanks to Tim Cline of the Cline Agency Insurance Brokers for his assistance with this question.

THE BALCONY BILL
AND STOCK COOPERATIVES


QUESTION. Does Civil Code §5551 apply to co-ops? -Maury J.

RESPONSE: Good question. A stock cooperative is a
common interest development governed by the Davis-Stirling Act. Section 5551(l) of the Civil Code states that inspections of elevated wooden structures apply to multi-family structures with three or more units. If a co-op's buildings are multi-family structures with three or more units, it would seem to apply.

However,
the statute also states, "At least once every nine years, the board of an association of a condominium project shall cause a reasonably competent and diligent visual inspection to be conducted..." (Civ. Code §5551(b)(1).)

That language appears to let co-ops off the hook even though they own and are responsible for maintaining and repairing balconies and other elevated wooden structures.

If a balcony collapses and persons are injured or killed, the co-op would undoubtedly be sued. If the court decides the board violated the statute
by not inspecting their balconies, the co-op will automatically be deemed negligent (negligent per se) for not conducting inspections. At that point, all that's left is determining the size of the judgment against the association.

RECOMMENDATION: The statute's clear intent is to increase the safety of residents in associations with elevated wooden structures. If it were me, I would voluntarily follow the statute's requirements to inspect and repair all elevated wooden structures. Doing so protects residents and minimizes any potential for lawsuits.

WHAT IS AN
EMERGENCY MEETING?
 

The next in our series of 2-Minute Videos describes emergency board meetings. When and how can boards of directors conduct emergency meetings? How is an emergency defined?  

To learn about this form of meeting, watch:

  Emergency Board Meetings
 


Geckos. I appreciate your humor! You always make me laugh! I could just imagine my board members having a gecko on their shoulder! You make the issues light while delivering matter-of-fact answers. Thank you!!! -Lorna L.

Enjoy your newsletters and usually get your jokes. Keep up the good work. –Anonymous

Thanks so much for everything you do for homeowners associations. Been reading ALL your articles over the years which makes me more well informed of the "do's and don'ts" Keep up the good work! -Traude-Sophia S.

Another informative newsletter along with a great video. Wish I could talk our board into heeding your advice. –Rita D.


Snakes. Non-venomous snakes are harmless (except to mice and rats), and most cities have ordinances against keeping venomous snakes. As for pythons or boa constrictors large enough to kill a human, you'll find those in zoos, not in condo settings! -Elsie B.

RESPONSE: They're not just in zoos. Some people like to keep pythons as pets and give them cute names like "Monty." Incidents involving them are not uncommon.

In 2009, a python crushed a two-year-old girl while she slept in her crib. In 2013, two young boys were strangled in their sleep by a python. The snake crawled through an air duct and entered the room where the brothers were sleeping.

In 2015, one nearly crushed a pet store owner before police were able to pry it off him. It was wrapped around his head, neck, and torso. Last year, a Florida woman screamed her lungs out after discovering a python in her washing machine. She didn't realize it was a snake until she reached inside and felt it slither. Personally, I don't think snakes and condos are compatible. For a surprisingly long list of constrictor snake incidents, see HumaneSociety.org.


Science Teacher. Hello! Love the newsletter. I’m a science teacher and I’d like to tell you that your statement that “there are only five classes of animals” is incorrect. There are five classes of animals with backbones. Those are referred to as chordates. -Valerie T.

RESPONSE: You are quite right. There are five kinds of animals with backbones, which are classified as chordate subphylum vertebrata. In addition, there is a large category of spineless ones--I've met a few of them. There are also some without higher brain functions. I've met some of those too. They are generally harmless, until we elect them to office.


Zoom Meetings. Thank you for the valuable support you offer through your newsletter. We are experiencing a much higher owner participation of our membership meetings held via Zoom then we ever saw when we held in person meetings. My question is, are we required to go back to live in person meetings? Or, can we continue to meet via Zoom? –Frank S.

RESPONSE: You can and should continue to hold Zoom meetings after restrictions are lifted. Video conferencing via Zoom, Microsoft Teams, Google Meet, and Cisco Webex is the one good thing to come out of the pandemic.

Video conferencing makes it easier for both board members and homeowners to attend meetings. It also makes vendor presentations easier since they can put their presentations on the screen for all to see. Video conferencing also reduces legal expenses by eliminating the cost of drive-time for legal counsel to attend meetings.

RECOMMENDATION. I encourage boards to continue using video conferencing for their board and annual meetings.

 

Federal Update. CDC issued an order extending the residential eviction moratorium and updated its guidance on Employer Information for Office Buildings.

Statewide Update. CDPH issued guidance for Commencement and Graduation Ceremonies and updated guidance for gatherings, receptions, conferences and indoor live events.

The State issued a 3/25/21 Press Release re: Availability of Vaccine for those 50+ as of April 1 and 16+ as of April 15.

The State issued a 3/30/21 Press Release re: Vaccine Outreach to Asian American and Pacific Islander Californians. The State issued a 4/8/21 Press Release re: Vaccine Outreach for Black and African American Audiences.

As of April 15, the State will be updating the Blueprint. The State issued a 4/2/21 Press Release re: Updates to Blueprint. The updates will include changes to gathering limits, private events or meeting limits, and indoor live events or performances.

The Governor issued a 4/6/21 Press Release re: Moving Beyond Blueprint. The Governor indicated that the State will fully open its economy as of June 15 if: the vaccine supply is sufficient for those 16+ who want to be vaccinated and hospitalization rates are stable and low.

The CDPH issued a 4/2/21 Travel Advisory.

The following Counties have changed Tiers: Alameda (Red Tier to Orange); Butte (Red Tier to Orange); Colusa (Red Tier to Orange); Contra Costa (Red Tier to Orange); El Dorado (Red Tier to Orange); Fresno (Purple Tier to Red); Glenn (Purple Tier to Red); Humboldt (Red Tier to Orange); Kings (Purple Tier to Red); Madera (Purple Tier to Red); Mendocino (Red Tier to Orange); Modoc (Red Tier to Orange); Monterey (Red Tier to Orange); Napa (Red Tier to Orange); San Benito (Red Tier to Orange); San Joaquin (Purple Tier to Red); Santa Cruz (Red Tier to Orange); Siskiyou (Red Tier to Orange); Sonoma (Red Tier to Orange); Tulare (Red Tier to Orange); Tuolumne (Red Tier to Orange); Yuba (Purple Tier to Red).

Northern California. Alameda County moved to the Orange Tier and issued a 3/30/21 Press Release re: Move to Orange Tier.

Butte County moved to the Orange Tier and issued a 3/30/21 Press Release re: Move to Orange Tier. The County issued a 3/29/21 Press Release re: Vaccination Open to Persons 16+.

Contra Costa County moved to the Orange Tier and issued a 4/6/21 Press Release re: Move to Orange Tier. The County issued a 3/30/21 Press Release re: Those 16+ Eligible for Vaccine.

El Dorado County moved to the Orange Tier and issued a 4/6/21 Press Release re: Move to Orange Tier.

Fresno County moved to the Red Tier and issued a 3/30/21 Press Release re: Move to Red Tier. The County issued a 4/8/21 Press Release re: Expanded Vaccine Eligibility. The County issued 3/25/21 Return to School Guidance.

Lake County issued a 4/2/21 Press Release re: Vaccine Eligibility Quickly Expanding.

Madera County moved to the Red Tier and issued a 3/30/21 Press Release re: Move to Red Tier. The County issued a 4/2/21 Press Release re: Eligibility of Vaccine for Those 16+.

Marin County issued a 3/30/21 Press Release re: Vaccine Eligibility Expanding to Those 16+. The County issued a 4/6/21 Press Release re: COVID-19 Variant Detected.

Mendocino County moved to the Orange Tier and issued a new Order to comply with the changes and issued a 4/7/21 Press Release re: Move to Orange Tier. The County also issued an Order re: School Protocols. The County issued a 3/25/21 Press Release re: COVID-19 Variants Discovered. The County issued a 4/8/21 Press Release re: Reduction in Vaccine Allocation.

Monterey County moved to the Orange Tier and issued a 4/6/21 Press Release re: Move to Orange Tier.

Napa County moved to the Orange Tier and issued a 4/6/21 Press Release re: Move to Orange Tier.

Nevada County issued a 4/6/21 Press Release re: Moving Back to Purple Tier next week. The County issued a 4/7/21 Press Release re: COVID-19 Variant Detected.

San Francisco issued a 3/24/21 Press Release re: Changes in Orange Tier.

San Joaquin County moved to the Red Tier and issued 4/7/21 Updates.

San Mateo County issued a 3/25/21 Press Release re: Expanded Vaccine Eligibility. The County issued a 4/8/21 Press Release re: New Guidance and Updates.

Santa Clara County issued a 3/23/21 Press Release re: Move to Orange Tier. The County issued a 3/25/21 Press Release re: County Awaiting More Vaccines. The County issued a 4/3/21 Press Release re: Increase in Variance Means Testing Critical.

Santa Cruz County moved to the Orange Tier and issued 3/30/21 Press Release re: Move to Orange Tier. The County issued a 3/22/21 Press Release re: Variant Identified in County.

Shasta County issued a 4/2/21 Press Release re: Vaccine Eligibility Expansion. The County issued a 4/5/21 Press Release re: April 15 Expansion of Blueprint.

Sonoma County moved to the Orange Tier and issued a 4/7/21 Press Release re: Move to Orange Tier. The County issued a 3/26/21 Press Release re: Effort to Vaccinate Those Who Are Homebound for Medical Reasons. The County issued a 4/6/21 Press Release re: Increase in Vaccine Supply.

Stanislaus County issued a 3/23/21 Press Release re: Move to Red Tier. The County issued a 3/30/21 Press Release re: Expanded Vaccine Eligibility. The County issued a 4/8/21 Press Release re: COVID-19 Variant Detected in County.

Tehama County issued a 4/8/21 Press Release re: Vaccine Updates.

Tulare County moved to the Orange Tier and issued a 4/6/21 Press Release re: Move to Orange Tier. The County issued a 3/31/21 Press Release re: Vaccination Expanded to Those 16+. The County issued a 4/2/21 Press Release re: COVID-19 Variant Detected in County.

Tuolumne County moved to the Orange Tier.

Yolo County issued a 3/23/21 Press Release re: Move to Orange Tier. The County issued a 3/31/21 Press Release re: Vaccine Eligibility Expansion.

Yuba County moved to the Red Tier.


Southern California. Imperial County moved to Orange Tier and revised health order to align with the move.

Los Angeles County moved to Orange Tier and revised health order to align with the move. Gyms and Fitness Center protocols were updated with up to 25% occupancy indoors. Indoor pools are open, however indoor hot tubs, saunas, and steam rooms still must remain closed.

City of Los Angeles updated its Safer LA Order to align with the county’s move Orange Tier.

Orange County moved to Orange Tier and issued Press Release

Riverside County moved to Orange Tier and issued Press Release.

Press Release regarding expanding vaccine eligibility to 16 and older for county run facilities.

San Diego County moved to Orange Tier and updated its health order to align with the move. Issued Press Release regarding expanding vaccine eligibility to 50 and older.

San Bernardino County moved to Orange Tier and issued Press Release regarding the move and vaccinations are open to all residents 16 and older.

Ventura County moved to Orange Tier and issued Press Release regarding the move.


READING THE CHART. Because the Coronavirus Update Chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 4-9-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

PAST NEWSLETTERS. Readers can find current and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.

Snakes in Tanks

Apr 1, 2021 0 Views 0 Comments

QUESTION: Once again an informative newsletter. On the subject of pets, we have a homeowner with quite a few snakes in glass tanks. Are snakes allowed and how many is reasonable? –Gary S.

RESPONSE: Associations are not required to allow snakes as pets. There are five classes of animals on the planet: mammals, birds, fish, reptiles, and amphibians. The Davis-Stirling Act states that members are allowed to have at least one domesticated bird, cat, dog, or aquatic animal kept in an aquarium. (Civ. Code §4715.)

Mammals and Birds. Cats and dogs fit into the mammal category and associations must allow them, provided they are domesticated. Small birds such as canaries, parakeets, cockatiels, and parrots are considered domesticated and are acceptable as pets. Large birds such as crows, vultures, turkeys, and eagles are not.

Amphibians and Reptiles. The two categories not provided for in the statute are amphibians and reptiles. I don't know of anyone who keeps amphibians as pets. This includes salamanders, frogs, and toads. The reptile category consists of turtles, snakes, lizards, alligators and crocodiles. Small turtles are harmless and I'm not aware of any associations that ban them. Lizards such as geckos, iguanas and bearded dragons are popular with those who like those sorts of things. Putting them on your shoulder while attending board meetings is generally frowned upon. Alligators and crocodiles do not make good pets. You could lose an arm trying to pet them.  

Fish. Fish are not listed as a category in the Davis-Stirling Act. Instead, it states that homeowners are allowed to have "aquatic animals." That clearly includes fish, some of which are spectacularly beautiful. That brings us to snakes. Sea snakes qualify as aquatic animals, of which there are 69 species. They have paddle-like tails for swimming but lack gills and must surface to breath. Homeowners are allowed to have them in their aquariums.

Snakes. The water moccasin, also known as the cottonmouth, is semi-aquatic. Water moccasins are venomous and their bites can be lethal. The problem with water moccasins and other "water snakes" is that they are semi-aquatic and are not confined to water. They can leave their tanks and slither into adjoining condominiums. Escaping confinement is true for all semi-aquatic and non-aquatic snakes, as well as live mice kept to feed to snakes. Both snakes and mice have a knack for finding their way into walls and ceilings, or out open windows and doors, into the common areas and neighboring units.


If your resident has tanks of snakes, concern is understandable. No one wants to see a large black snake emerge from under their couch or open a closet door and find a python. Pythons can grow to 23 feet and weigh up to 250 pounds. A large python can easily strangle or crush a person to death.

RECOMMENDATION:
Other than sea-snakes, boards can prohibit reptiles generally, and snakes in particular, as pets. Boards can address the issue by adopting rules. Such rules do not have to grandfather existing snakes. (Villa de Las Palmas v. Terifaj.) Snake handlers can stay, but their slippery, slithering friends can be ordered out.


Manager Signs Correspondence: In our association, correspondence from the board is signed by the manager. Is this correct?

ANSWER: There is nothing illegal about the manager signing correspondence. The manager is an agent of the association who works at the direction of the board of directors.

Some boards have the manager sign on their behalf. Some boards sign their correspondence "The Board" or "Board of Directors." Others send it under the President's name. It's a matter of preference how boards sign their correspondence, and it can change from board to board. When it comes to correspondence to vendors, more often than not, letters are signed by the manager.


Balcony Special Assessment. We have 37 units but only 15 have balconies. Can the board levy a special assessment for balcony certification only on the 15 owners with balconies? -Star S.

ANSWER: Unless your CC&Rs specifically make condominium owners with balconies responsible for the structural elements of their balconies (which is unlikely), you cannot impose an assessment on the 15 owners with balconies; it must be levied on all 37 owners.


Inspect Stairs. I'm surprised that the new inspection law does not include any exterior wood-frame stairs that access second-floor units. A collapsing staircase can kill/maim just as surely as a balcony or deck. -Hank J.

ANSWER: Someone has misled you. Stairs are included in the statute. "Load-bearing means those components that extend beyond the exterior walls of the building to deliver structural loads to the building from decks, balconies, stairways, walkways, and their railings, that have a walking surface more than six feet above ground level, that are designed for human occupancy or use, and that are supported in whole or in substantial part by wood or wood-based products." (Civ. Code §5551(a)(3).) Exterior stairways need to be inspected. See Elevated Structure Inspections.

President Gets 2 Votes? Is it true that the president’s vote weighs heavier in a tie vote? My board has 4 directors. What happens when the vote is 2 to 2? One director said, in that case, the president’s vote counts as two. –Elsa
 

ANSWER: No, it's not true. Under no circumstances does the president get two votes. In his classic book Animal Farm (a must-read for everyone), George Orwell introduced the concept that everyone is equal but some are more equal than others. When it comes to the board of directors, the president is not more equal than other directors — all directors are equal. To avoid deadlocked 2 to 2 votes, you should amend your documents to create an odd-numbered board of either 3 or 5 directors.

Small HOA Boards. We are a small HOA with only 17 units. We have a hard time filling 5 director seats as required by the bylaws. Is it okay to amend our bylaws to have only 3 directors? –Eric C.
 
ANSWER: Yes, you can amend your bylaws. With only 17 units, you should easily obtain enough votes. Your articles of incorporation might also need to be amended — they sometimes address the number of directors. If you need assistance drafting and recording an amendment, contact us.
 
VIRTUAL
MEETING BASICS


The next video in our series of 2-Minute Videos describes when and how associations can hold virtual board and membership meetings.

We take a look at the differences between speakerphone meetings, teleconferences, and video conferences, and what must be done to meet Davis-Stirling requirements. 

  Watch: Virtual Meetings


Kudos. Thank you for all you do for California HOAs! Faithfully yours, Celeste H.

Joking. I want to thank you for your sense of humor — it's the only thing that keeps us condo owners sane! Though I don't know what is funnier — the things you say, or the people that don't know you're joking! You rock! –Deanna F.

RESPONSE: In our industry, keeping your sanity requires a sense of humor (and a good lawyer on retainer).


Marjorie Murray #1. Marjorie Murray may be the one coming up with ridiculous mandates such as the new election laws, but she is not the one voting them into law. Please tell your readers how to find their local legislators and to complain to them. -Paul C.

RESPONSE: Ms. Murray's organization has contributed its share of ridiculous mandates imposing costly burdens on homeowners. In addition, she has lobbied against legislation that would have benefited associations and their members. In my opinion, her organization stokes the insanity in Sacramento.

The California Legislative Action Committee (CLAC) monitors and supports good legislation and opposes bad legislation. It publishes newsletters and alerts regarding pending legislation. In addition, CLAC has retained the services of a legislative advocate, Louie A. Brown, Jr. Another organization that tracks bills is the California Association of Community Managers with their own legislative advocate, Jennifer Wada. Both organizations deserve our support.


Marjorie Murray #2. We love your newsletter! One question, has your law firm or any other law firm taken action to rescind Marjorie Murray's SB 323 bill? If not, why not? If yes, what is the current status? –Jill B.

RESPONSE: We have been working through CAI's California Legislative Action Committee (CLAC) to address the problems created by Ms. Murray's organization and other hostile legislation. Nathan McGuire, Managing Partner of our Northern California Offices, previously served as Chair of CLAC and is on their Executive Committee. We will report on new bills in upcoming newsletters.


NEWSLETTERS. Readers can find current year and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature. You can find the search line in the upper right corner of the website under our ADAMS|STIRLING logo.


Federal Update. The CDC issued updated guidance on: How to talk to friends and family about COVID-19 vaccines; What you can do if you are fully vaccinated; and Ventilation in Buildings. The CDC has some updates related to Guidance for Pools etc. in Communal Living.

Statewide Update.The following Counties have changed Tiers: Kern (Purple Tier to Red); Lake (Purple Tier to Red); Lassen (Red Tier to Orange); Marin (Red Tier to Orange); Monterey (Purple Tier to Red); Nevada (Purple Tier to Red); Riverside (Purple Tier to Red); Sacramento (Purple Tier to Red); San Diego (Purple Tier to Red); San Francisco (Red Tier to Orange); San Mateo (Red Tier to Orange); Santa Barbara (Purple Tier to Red); Santa Clara (Red Tier to Orange); Sierra (Orange Tier to Yellow); Stanislaus (Purple Tier to Red); Sutter (Purple Tier to Red); Tehama (Purple Tier to Red); Trinity (Red Tier to Orange); Tulare (Purple Tier to Red); Ventura (Purple Tier to Red); Yolo (Red Tier to Orange).

Press Release that vaccines will be available to those 50 and older starting April 1, 2021 and 16 and older starting April 15. Press Release regarding My Turn COVID-19 Scheduling System is now available in 12 languages: Armenian, Chinese (Simplified), Chinese (Traditional), English, Japanese, Khmer, Korean, Punjabi, Russian, Spanish, Tagalog, and Vietnamese. The CDPH recently issued a Youth Sports Q&A to be a companion document to its updated guidance for Outdoor and Indoor Youth and Recreational Adult Sports issued February 19, 2021.

The State is expanding vaccine availability to those 50+, starting April 1, and those 16+ on April 15. The Governor signed SB 95, ensuring access to supplemental paid sick leave for workers impacted by COVID-19.

Northern California. Butte County issued a 3/19/21 Press Release re: Vaccinations Available to Persons 50+.

Contra Costa County issued a 3/16/21 Press Release re: UK COVID Variant Detected in Contra Costa. The County issued a 3/22/21 Press Release re: Vaccinations Available to Those 50+. The County issued a 3/25/21 Order Repealing Social Distancing Order and deferring to State Guidance. The County issued a 3/25/21 Order Repealing Face Covering Order and deferring to State Guidance. Contra Costa also issued a 3/25/21 Order Repealing Vehicle-Based Gathering Order and deferring to State Guidance.

Fresno County issued an Adult and Youth Recreational Sports Attestation Form. The County issued a 3/25/21 Guide to Reopening K-12.

Lake County has moved to the Red Tier and issued a 3/16/21 Press Release re: Move to Red Tier. The County issued a 3/19/21 Press Release re: Widespread Immunization.

Madera County issued a 3/16/21 Press Release re: Vaccination Eligibility. The County issued a 3/23/21 Press Release re: Variant Detected in Madera County.

Marin County has moved to the Orange Tier and issued a 3/23/21 Press Release re: Move to Orange Tier.

Mendocino County has issued a new Health Order to comply with the move to the red tier. They also issued a 3/12/21 Press Release re: Red Tier. The County issued a 3/25/21 Press Release re: Variants Discovered.

Monterey County has moved to the Red Tier and issued a 3/16/21 Press Release re: Move to Red Tier

Nevada County moved to the Red Tier and issued a 3/23/21 Press Release re: Move to Red Tier. The County issued a 3/25/21 Press Release re: Vaccine Eligibility.

Placer County issued a 3/19/21 Press Release re: COVID Variant Detected in Placer County.

Sacramento County has moved to the Red Tier and issued a new Health Order pursuant to this change.

San Francisco moved to the Orange Tier and issued a 3/24/21 Press Release re: Move to Orange Tier. The guidelines for pools, tennis courts, gyms, golf courses and social gatherings have been updated as well.

San Mateo County moved to the Orange Tier and issued a 3/16/21 Press Release re: Move to Orange Tier. The County issued a 3/25/21 Update Regarding Vaccinations and County COVID-19 Response. The County issued a 3/19/21 Press Release re: County to Update School Guidance.

Santa Clara County moved to the Orange Tier and issued a 3/23/21 Press Release re: Move to Red Tier. Santa Clara County issued a 3/17/21 Press Release re: Additional Variant Detected and 3/20/21 Press Release re: Need For Testing Due to New Variants. The County issued a 3/25/21 Press Release re: County Waiting for More Vaccines as Eligibility Expands. The County issued a 3/23/21 Risk Reduction Advisory.

Santa Cruz County moved to the Red Tier. The County issued a 3/15/21 Press Release re: Vaccinations, as well as a 3/22/21 Press Release re: Variant Identified in County

Shasta County issued a 3/24/21 Update re: New Variant and Vaccinations.

Solano County issued a 3/22/21 Press Release re: Decline in Allocation of Vaccine.

Sonoma County issued a 3/15/21 Press Release re: Vaccines. The County also issued a 3/26/21 Press Release re: Effort to Vaccinate Homebound Individuals.

Stanislaus County moved to the Red Tier and issued a 3/23/21 Press Release re: Move to Red Tier. The County issued a 3/18/21 Press Release re: Variant In County

Sutter County moved to the Red Tier.

Tehama County moved to the Red Tier and issued a 3/16/21 Press Release re: Move to Red Tier.

Tulare County moved to the Red Tier and issued a 3/16/21 Press Release re: Move to Red Tier. The County issued a 3/25/21 Press Release re: Vaccination Availability.

Yolo County moved to the Orange Tier and amended their Health Order and all attachments to address the change. The County also issued updated face covering guidance.

Southern California. Imperial County released Health Order on quarantine for persons exposed to COVID-19 who are not vaccinated (10 days' quarantine), those fully vaccinated for the past three months (no quarantine), and those who recovered from COVID-19 in the past three months (no quarantine).

Los Angeles County issued revised Health Order, which allows for Breweries, Distilleries, and Wineries to reopen outdoors. Further, increased number of participants for group counseling services to 12 people. Golf Course Protocols have been updated lifting further restrictions, including socially-distanced group lessons, reopening of putting and chipping greens, and allowance for youth and adult recreational leagues. Gyms can reopen indoors at 10% capacity. Increased to 50% capacity office-based worksites that must be open indoors for essential operations.

City of Los Angeles updated its Safer LA Order to align with County moving to red tier and with CDC’s guidance for fully-vaccinated people.

Orange County Press Release regarding return to Red Tier in the State’s Blueprint for a Safer Economy.

Riverside County Press Release regarding return to Red Tier in the State’s Blueprint for a Safer Economy.

San Luis Obispo County Press Release that local landlords and tenants can apply for rental assistance through CA COVID-19 Rent Relief Program. Press Release regarding allowing one immediate household member to observe a youth in youth sports (practices and games).

San Bernardino County Press Release regarding return to Red Tier in the State’s Blueprint for a Safer Economy.

Santa Barbara updated its Health Order to include required weekly COVID-19 testing of coaches and players aged 13 and above for the high-contact sports of football, rugby and water polo. The County continued its face covering order until April 19, 2021.

Ventura County Press Release regarding return to Red Tier in the State’s Blueprint for a Safer Economy. Also mentioned that golf carts do not need a partition between members of a different household. Further, HOA pools guidance has been lifted, though the County still encourages HOAs to follow suggested County Guidance. Press Release regarding vaccine eligibility expands to 50 and older as of April 1, 2021 and to 16 and older April 15, 2021.


READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of County restrictions and links to Health Department Orders, see County Chart 3-26-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

Spending Unbudgeted Money on Wildfire Safety

Mar 14, 2021 0 Views 0 Comments

QUESTION: We want to pay for wildfire fuel reduction on non-HOA property contiguous to our common areas and homeowners' property lines. This would provide an additional buffer against wildfires. Is such an expenditure permissible? Is it an operating expense or reserve expenditure? –Philip H.

ANSWER: Assuming you have permission from the adjoining property owner, assessments can be used to clear brush to protect your association from potential wildfires.

Court Case. In Finley v. Superior Court, a homeowners association used association funds to fight the conversion of a nearby military base into a commercial airport. Members of the association sued claiming the board exceeded its authority and misused association funds. The court ruled that political contributions were not illegal and boards can take actions they believe are in the best interests of the association, even if members disagree. That means your board can authorize funds to clear brush to protect the association.

Operating Expense. The project does not qualify as a reserve expense since it does not involve maintenance of the common areas. That means it should come out of operations. If the expense was not budgeted, it is unlikely there will be sufficient funds in operations to cover it. In that case, the board can borrow from reserves and then repay it, or special assess the membership up to 5% of the current budget without a vote of the membership.

RECOMMENDATION. If the board decides to clear excess brush every few years, it could qualify as a reserve item much like periodic trimming of common area trees. Boards should consult with their reserve study provider and legal counsel about how best to handle it.

****


Emergency Rules. Last year we addressed COVID issues at our pool with emergency rules. We have now started planning for our pool opening this year, and we're wondering if we can still use emergency rules to address the ever-changing COVID scene? -Kristi H.

ANSWER: I believe you can. Technically, emergency rules can only last 120 days and cannot be readopted. (Civ. Code §4360(d).) Unfortunately, the pandemic is now one-year old with new directives constantly handed down by health officials. Accordingly, I believe boards can continue to adopt emergency rules. The pandemic has already upset the apple cart on holding in-person meetings. In my opinion, the 120-day limitation can be temporarily suspended.


Limiting Pets. I was told California HOAs are not allowed to limit the number of pets a person can have, is this true? –Erica

ANSWER: No it's not true. Associations can limit the number of pets a member keeps. What they can't do is ban them altogether. Members are allowed to have at least one domesticated bird, cat, dog, or aquatic animal. (Civil Code §4715.)


Secret Ballots. One of our residents said they believe the state is now requiring secret ballots for things like budgets and assessments. Is this factual? -Dan L.

ANSWER: No, it's not factual. Budgets are approved by the board and mailed to the membership not less than 30 nor more than 90 days prior to the end of the fiscal year. For more information see our Budget Menu. Emergency assessments and special assessments up to 5% of the budget and regular assessment increases can be approved by the board without a vote of the membership. See our Assessments Menu.


Write-In Cumulative Voting. I was told that when cumulative voting is allowed, it's only for the names printed on the ballots, not write-candidates. I've never heard this before. Is this true? -Doug G.

ANSWER: No, it's not true. The Davis-Stirling Act requires cumulative voting if permitted in an association's governing documents. (Civ. Code §5115(e).) The statute does not make an exception for write-in candidates.

FOUR KINDS OF
DAVIS-STIRLING ASSOCIATIONS


The sixth in our series of 2-Minute Videos describes the four kinds of common interest developments covered by the Davis-Stirling Act.

We take a look at the differences between condominiums, planned developments, stock cooperatives and community apartment projects.

  Watch: Four Kinds of Common Interest Developments


Videos. Congratulations on another great video. These are really well done with just the right level of information and easy to absorb. -Leland B.

Posting Videos. Thank you for the service you provide to HOAs! Your 2-minute video is just the tool we need to explain executive sessions to our owners. Can we post your 2-minute videos on our association's website? We feel it would benefit the entire community. –Sharon R.

RESPONSE: Yes, feel free to post our videos. Our goal is to help homeowners and board members alike understand how their HOAs work.

Love the Videos. Love, love these videos. Short and to the point. As a manager it helps me answer homeowner questions regarding these topics. Thank you. –Sway R.

Destructive Testing. In one of your videos you mention destructive testing, which I feel is incorrect for the building will not be destroyed during the test. The correct description would be non-destructive testing, where the building is not destroyed. –Adam S.

RESPONSE: Destructive testing and invasive testing are both terms that seem to be used interchangeably in our industry. It means destroying or invading a portion of the balcony by removing stucco or other material to see inside the balcony.

Marjorie Murray. I agree with your assessment of Marjorie Murray, who has created a host of tangled problems for homeowners’ associations. Of course, it also raises questions about the intelligence of legislators in general, sorry to say, when such bills are passed year after year. Thank you for your newsletters; it is always reassuring to read clearly written explanations! –Elaine J.

Paid Board Members? What happens when an insufficient number of people run for the board? Some insist we are required to pay someone to fill that position. –Peggy G.

RESPONSE: As long as you have a quorum of directors, you can continue to operate as an association. If your bylaws call for a 5-member board, you only need three to operate. If you drop below that number, you have a problem. It's unfortunate Marjorie Murray's organization reduced your pool of volunteers by prohibiting spouses not on title from serving. The good news is that her organization made it possible for violent felons and members suing their associations to serve on HOA boards. For more information, read An HOA Without Directors.

Vaccination Policy. Don't you mean restricting facilities to those who have been vaccinated adds a layer of protection for people who get vaccinated, not for those who refuse to be vaccinated? –Jeff R.

RESPONSE: No, I meant those who are not vaccinated. Members who receive vaccinations are already protected. It's the unvaccinated who are at risk of catching the virus.
If they are refused entry to HOA facilities, theoretically they are protected from catching the virus. Boards should follow helath guidelines for pool reopenings. If your association's legal counsel tells your board they can require proof of vaccination to use the facilities, you should follow their advice. As noted in last week's newsletter, I'm not in that camp. Some people have legitimate reasons for not getting vaccinated, such as strongly held religious beliefs or severe allergic reactions leading to life-threatening anaphylactic shock. I believe excluding them from association facilities exposes the board to litigation.

Orange County. Your newsletters continue to be an invaluable resource. Thank You. Thank You. Thank You. I noticed that Orange County is conspicuously lacking from your Covid updates. -Mike H.

RESPONSE: We only report when there are updates. Some counties are more active than others. The less active ones are letting the State provide guidance rather than offering their own. Orange County’s last update was in December 2020.
Some counties are even less active. Kern County hasn’t had an update to its health orders since April 2020. Counties such as Los Angeles are compulsive about publishing updates almost daily on topics such as pickleball courts, pools, playgrounds, etc.

NEWSLETTERS. Readers can find current year and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature. You can find the search line in the upper right corner of the website under our ADAMS|STIRLING logo.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

Proof of Vaccination to Use Facilities

Mar 7, 2021 0 Views 0 Comments

QUESTION: We are a senior community. Our board is trying to plan ahead for re-opening our facilities when restrictions are lifted. How do we deal with some people receiving the vaccine and others refusing? We hope to open our pool this summer. Can or should we restrict those who have not been vaccinated? –Barbara S.

ANSWER: This has been a topic of lively discussion in the legal community with some attorneys in favor and others opposed.

Voluntary Policy. As restrictions are lifted, it's unlikely the government will compel associations to require members show proof of vaccination to use their recreational facilities. That means adopting it as a policy will be entirely voluntary. It could add a layer of protection for members who refuse to be vaccinated. However, I see problems with it.

Potential Litigation. Excluding members from your facilities who lost their proof of vaccination, or refused vaccination for fear of allergic reactions, or refused on religious grounds, or choose not to disclose their medical status for privacy reasons, is an invitation for litigation. We don't currently monitor and exclude members and guests who have not had vaccinations for polio, hepatitis, measles, chickenpox, smallpox, and annual flu shots--all of which can be deadly.
I don't like the idea of boards becoming vaccine police. Where and how will they store this medical information? I believe it creates additional legal exposure for associations.

RECOMMENDATION: My recommendation is for boards to lift restrictions in accordance with applicable health department requirements. Those who want to take the additional step of prohibiting members who have not been vaccinated should see the advice of legal counsel.

DIFFERENT RULES
FOR DIFFERENT ELECTIONS?


QUESTION: I cannot find any difference in the new election law between electing directors and voting for other things, such as amending the CC&Rs. Are all steps necessary for a vote that is not an election of directors? BTW the new election law is stupid and we hate it. –Nora P.

ANSWER: The election law sponsored by Marjorie Murray's organization is a hot mess. In my opinion, it has harmed the consumers she claims to represent. The complicated and lengthy election procedures imposed by SB 323 apply to the following elections (Civ. Code §5100):

   • election of directors
   • removal of directors
   • special assessments
   • amendments to CC&Rs and Bylaws
   • grants of exclusive use common areas

If your association is voting to amend its documents, the call for nominations is not required, which shortens the 4-month election cycle to three months. You still need to appoint an inspector of elections, create a voter list, give notice, send ballots, etc. Our Election Calculator will provide a timeline which you can modify to fit non-director elections. For more information about the timeline itself, see Election Timeline.

By creating an unwieldy election process, Ms. Murray's organization drove up the cost of elections by effectively requiring the use of professional inspectors of election. The process is so convoluted, it's difficult for volunteers to comply with all the requirements. Moreover, any missteps opens the door to litigation.

RECOMMENDATION: Boards should increase the line item in their budgets for annual election expenses to include the cost of a professional inspector of elections. A good inspector will guide boards through the election minefield. Those with concerns about the new election requirements can send their comments to:

    Marjorie Murray, President
    Center for California Homeowner Association Law
    3758 Grand Ave., #56
    Oakland, CA 94610
    [email protected]

EXECUTIVE SESSION
MEETINGS


The fifth in our series of 2-Minute Videos describes the purpose of closed executive session board meetings.

The video covers those subjects deemed confidential by the legislature, minutes of meetings, and what must be reported to the membership.

  Watch Executive Session Meetings.

Readers who want to research this topic further can find a detailed explanation of executive session meetings on our website. Our next video will cover The Four Kinds of Davis-Stirling Associations.


Just the Facts, Ma'am. The service you provide to the millions of homeowners in the Golden State is astounding, Adrian. The care you take to get “just the facts, ma'am” out to your expectant online audience is phenomenal. The balcony inspection matter is a prime example. Kudos to you for helping so many with such important issues! -Marilyn B.

Kudos. Simply outstanding!!!! -L.S.

Early History. Thanks for the origins video. I’ve been fortunate enough to hear Judge Stirling tell his story of the DSA, but the early 1900’s history was new to me. Thank you and Tim for sharing the story. –Scott C.

Alcatraz. I just watched a historical show of Alcatraz and it showed how concrete and steel can "rot" over time which led to the great escape from Alcatraz and led them to cease using the Rock over time. -Bob F.

RESPONSE: That's precisely why associations with concrete balconies need to inspect the waterproofing elements under their 3-year reserve study cycle even though they are not required under the 9-year balcony inspection statute.

Pilasters. Our balconies are not cantilevered but each is supported by three stucco covered
pilasters. Are we subject to the legislation related to balcony inspections? –Sharon B.

RESPONSE: Yes, you're balconies are covered by the legislation. I added pictures of balconies to our website so everyone can get a better idea of what's required. See Elevated Structure Inspections.

Inspection Companies. Do you know any South Bay companies that conduct balcony inspections? Your 2-Minute Videos are very interesting and informative. -Stephanie J.

RESPONSE: I added a few more companies sent in by readers to our list of balcony inspectors. You should call them to see which ones cover the South Bay. See Elevated Structure Inspections.


NEWSLETTERS. Readers can find current year and prior year newsletters posted here. Older newsletters are not posted since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature. You can find the search line in the upper right corner of the website under our ADAMS|STIRLING logo.


Federal Update. The CDC updated the following guidelines:
Multifamily housing;
Vaccine toolkit for community-based organizations;
International travelers required negative test before entering US and subsequent quarantine recommendation;
Different Covid-19 vaccines; Information regarding J&J Janssen Covid-19 Vaccine;
Information regarding Moderna Covid-19 Vaccine; Information regarding Pfizer-BioNTech Covid-19 Vaccine; People with Developmental Disabilities

Statewide Update. The CDPH issued 2/19/21 Outdoor and Indoor Youth and Recreational Adult Sports Guidance.

California is accelerating vaccines for education and childcare workers. 2/25/21 Guidance re Vaccines for K-12 School Staff and Childcare Workers.

The following Counties have changed Tiers: El Dorado (Purple Tier to Red); Humboldt (Purple Tier to Red); Lassen (Purple Tier to Red); Marin (Purple Tier to Red); Modoc (Purple Tier to Red); Napa (Purple Tier to Red); San Francisco (Purple Tier to Red); San Luis Obispo (Purple Tier to Red); San Mateo (Purple Tier to Red); Santa Clara (Purple Tier to Red); Shasta (Purple Tier to Red); Trinity (Orange Tier to Red); Yolo (Purple Tier to Red).

Northern California. Alameda County has updated their Outdoor Youth & Recreational Adult Sports Guidance.

Butte County issued a 3/3/21 Press Release re: Testing Site on Chico Campus. The County also issued a 3/3/21 Press Release re: Pilot MyTurn Program With Limited Appointments.

Calaveras County issued a 3/2/21 Press Release re: Vaccination Site for Those 65+.

Contra Costa County issued a new 2/25/21 Mass Quarantine Order.

El Dorado County has been moved from the Purple Tier to the Red Tier. El Dorado County issued a 3/2/21 Press Release re: Move to Red Tier.

Lake County issued a 3/1/21 Press Release re: Vaccination Updates.

Marin County has been moved from the Purple Tier to the Red Tier.

Mendocino County issued a 2/27/21 Press Release re: Logging Industry Included in Current Vaccine Tiers. The County issued a 3/2/21 Press Release re: Opening Up Vaccine Eligibility.

Mono County issued a 3/2/21 Press Release re: Vaccine Availability for Phase 1A, 1B and Residents with underlying medical conditions. Mammoth Lake issued a new Short-Term Lodging Order.

Napa County moved from the Purple Tier to the Red Tier. Napa County issued a 3/2/21 Press Release re: Move to Red Tier.

Sacramento County issued an updated Health Order. The new Order addresses the allowance for schools to reopen and youth and adult sports activities.

San Francisco County moved from the Purple Tier to the Red Tier. The County issued a 2/24/21 Press Release re: Move to Phase 1B Vaccination and expands to educators, child care, emergency services, food and agricultural workers. San Francisco issued 3/3/21 Guidance re: Red Tier Reopenings.

San Joaquin County issued a 3/1/21 Release re: Implementing Youth Sports Guidance.

San Mateo County moved from the Purple Tier to the Red Tier. The County issued a 2/22/21 Press Release re: Prioritizing 65+ Residents for Vaccines. The County issued a 2/23/21 Press Release re: Move to Red Tier. The County issued a 3/4/21 Press Release re: Vaccine Clinic to Serve East Palo Alto.

Santa Clara County moved from the Purple Tier to the Red Tier. The County issued a 2/26/21 Press Release re: Supreme Court Order Allowing Indoor Worship Services at 20% Capacity. The County issued a 3/2/21 Press Release re: Move to Red Tier.

Santa Cruz County issued a 2/22/21 Press Release re: Expansion of Vaccinations.

Shasta County moved from the Purple Tier to the Red Tier. The County issued a 2/23/21 Press Release re: Move to Red Tier.
 
Stanislaus County issued a 3/2/21 Press Release re: Encouraging Member to Get Tested. The County issued a 3/3/21 Press Release re: Phase 1B Vaccination Now Open.

Sutter and Yuba County issued a 3/1/21 Press Release re: Frontline Workers 18+ in Education/Childcare, Food/Agriculture, and Emergency Services Qualified for Vaccine.

Tehama County issued a 3/4/21 Press Release re: Travel Advisory.

Tulare County issued a 2/24/21 Press Release re: Ramping Up Vaccination Efforts. The County issued a 3/4/21 Press Release re: County Using MyTurn Platform for Vaccine Appointments.

Yolo County moved from the Purple Tier to the Red Tier. The County issued a 2/22/21 Press Release re: Move to Red Tier.


Southern California. Los Angeles County updated What's Open in Los Angeles County and its residential pool guidelines that outdoor pools may be open for routine use provided that pool users maintain six foot distance from non-household members and pool users wear a face covering at all time when not in the water. Updated tennis and pickleball court guidelines. Organized competitions between two teams may resume. Group lessons may resume, limited to size of six and must maintain six-foot distance at all times. Employees must wear a face mask at all times except when in a closed office or when eating or drinking.

Riverside County issued Press Release regarding moderate and high contact youth and adult sports can resume in Riverside County. Also issued Health Officer Order that the Temecula Balloon and Wine Festival scheduled for May 2021 is cancelled.

City of Palms Springs rescinded its order closing restaurant, bars, wineries and breweries at 12:00 a.m. and now may be open to 2:00 a.m.

San Bernardino County issued Press Release regarding all teachers in county are eligible for vaccination. Further, a Press Release was subsequently issued that food and agricultural workers are eligible for vaccination. Also issued a Press Release that high-contact and moderate contact sports can resume in the county under certain conditions.

San Diego County Press release. Starting March 2, 2021 San Diego County residents can apply for additional rental and utility assistance grants due to loss of income from Covid-19. The county has allocated $100 million for the Covid-19 assistance grants.

San Luis Obispo County Issued Press Release regarding modified youth and recreational sports can start in SLO County. Also issued Press Release that SLO County returned to Red Tier status as of March 3, 2021.

Santa Barbara County extended its Face Covering Order to March 21, 2021

READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 3-5-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

More on Balcony Inspections

Feb 7, 2021 0 Views 0 Comments

QUESTION: If our HOA has been diligent in the upkeep of our balconies and has proof of ongoing maintenance, must we pay for the invasive inspection? -Carolyn

ANSWER: Yes, you still need to perform the inspection. It's required by law. Even though you have done a good job maintaining your balconies, you could have an undetected source of moisture causing dryrot in the wood elements of your structures, not to mention termites. If the inspection reveals your balconies are all in good shape, you don't need to perform another invasive inspection for nine years. (Civ. Code §5551(b)(1).) All you need is a reasonably competent and diligent visual inspection of your elevated structures every three years by your reserve study provider. (Civ. Code §5550(a))


Dining. Our HOA is a housing development. Would this law be applicable to our country club which offers outdoor dining on a balcony? –Tomas H.

ANSWER: The statute does not apply to your clubhouse. It only applies to buildings containing three or more multifamily dwelling units. (Civ. Code §5551(i).)

However, if I were on your board, I would have the balcony inspected. It is subject to the same risks of deterioration and collapse as condominium balconies and may be at greater risk because of the heavy traffic it receives.

If it collapses and people are injured, you know you're going to be sued. It's best to avoid injuries and litigation by performing an invasive test followed by a written report. If the report gives you a clean bill of health, you have a defense against allegations of negligence in the event something happens.


Colonoscopy. "Colonoscopy." Was this word a typo? –Maureen C.

RESPONSE. Smile. No, it's not a typo. That's the word I meant to use.


Small Balconies. I have been a community manager for 40 years and never had a balcony at risk. Most the the examples you gave in your newsletter involved lots of people and a lot of weight. Realistically it’s hard for a balcony made for 2 to 4 people to not show indication of failure prior to failure There should be a different category and less restrictive guidelines for small balconies. –Jim A.

ANSWER: You've been lucky not to experience  problems. I've can think of half a dozen associations we've worked with that suffered significant problems with elevated structures. I am sure there are many readers whose associations suffered costly problems with balconies.

The statute makes no distinction between large balconies and small ones. None of the balcony collapses I cited showed any indication of failure before they suddenly gave way. Even small balconies can be overloaded. For example, if there is a 4th of July fireworks display and 8 people crowd onto a balcony designed for 2 to watch the fireworks, they could experience more than they expected. The collapse in Berkeley involved a small balcony where 13 students crowded onto it during a birthday party. Six died and 7 were badly injured.

San Francisco Balconies. San Francisco has had MANY balcony collapses over the years. –Steve

RESPONSE: That's not all they've suffered from over the years.


Concrete Balconies. Every time this topic is raised, it must be emphasized that the inspection requirement is about balconies and elevated structures that are all or partially wood. Our two brand new directors almost resigned from shock after reading your newsletter. Our 300+ balconies are concrete and steel. –Carol R.

ANSWER: Even though the statute does not apply to your balconies, make sure you include waterproofing and railings in your reserve study.

Concrete is porous and any water migrating into the structure can cause the reinforcing steel to rust. This causes the metal to expand, which cracks the concrete and leads to spalling (concrete breaking off in fragments).

The picture on the right shows the ceiling in an association's parking structure. Regular maintenance of the waterproofing can avoid expensive concrete repairs down the road.


Visual Inspection. Surely a visual inspection could help identify those balconies that need a colonoscopy? –Paul Y.

ANSWER: Unless the structural elements are already exposed, a visual inspection of a balcony's exterior cannot tell an inspector what's happening inside the balcony any more than a doctor inspecting a patient's outside can see what's happening inside. That's what scopes MRIs, CAT scans, x-rays, and surgeries are for. They allow doctors to inspect the insides of a body.

The statute requires an architect or structural engineer to perform a sufficient number of tests to provide 95 percent confidence that the results from the sample are reflective of the whole, with a margin of error of plus or minus 5 percent. (Civ. Code §5551(a)(4).)

Inspectors are allowed to use the least intrusive method necessary to examine load-bearing components, including visual observation in conjunction with moisture meters, borescopes, and infrared technology. (Civ. Code §5551(a)(5).) The statute also requires inspection of associated waterproofing systems, which includes flashings, membranes, coatings, and sealants that protect the load-bearing components from exposure to water. (Civ. Code §5551(a)(1).)


Balconies on Garages. The balconies in our condominium project are all directly above a garage. Are inspections required for balconies that do not extend out into space? –Linda L.

ANSWER: No, the balconies don't need invasive inspections, but their railings will need inspection if they are anchored to wood or wood products.


Excessive Watering. What if the owner causes damage? A neighbor waters his plants by flooding the entire balcony, siding and walkway below. He has done this on a weekly basis for years. Boards have sent him letters asking to stop. The excessive watering is eventually going to create dryrot in the wood making the balcony unsafe. Who is responsible for replacing the wood in a situation like this? -Sandy

ANSWER: Even though the owner is causing damage to the structure, the association will be responsible for repairing it. (Civ. Code §4775.) Fortunately, the board can impose a reimbursement special assessment on the owner to pay for the damage.
Your board will need to inspect the structural elements of his balcony sooner rather than later. To get him to stop his excessive watering, it may be time for hearings and fines, followed by a lawyer letter, followed by a demand for ADR, then a lawsuit if he does not modify his behavior.

Not Cantilevered. If balconies are not cantilevered but rather are supported on three sides, do they still require inspection? –Tom M.

ANSWER: If they are supported by wood posts, they need to be inspected. We represented an association where all exterior stairwells, walkways and balconies were supported by wood posts. It created a nice rustic atmosphere. Unfortunately, they all suffered wood rot and a costly renovation project was required.


Landings. We have landings in our complex. Do they fall into this inspection category? Our landings have railings on either end, but run continuous across the second level at the top of concrete stairs. -Susan A.

ANSWER: If the landings and walkways are more than six feet above the ground and supported by wood or wood products (Civ. Code §5551(a)(3)) then, yes, the landings and railings need to be inspected.

ORIGIN OF THE
DAVIS-STIRLING ACT


Our third video looks at the earliest common interest developments in California. Many will be surprised to learn that some are over 100 years old.

This video reveals what triggered the explosion of condominium construction and the origin of the laws that govern homeowner associations in California. I think you will enjoy it.

  Watch Origins of the Davis-Stirling Act.


Next in our series will be "Fiduciary Duties of Boards of Directors."


Federal Update. The CDC updated its small gathering guidelines to address safer ways to enjoy the Super Bowl.

Statewide Update. Homeowners who are seniors, are blind or have a disability and have 40 percent equity in their home and have an annual income of $45,000 or less may qualify for property tax postponement. Last day to file for the postponement is February 10, 2021. 

The CDPH issued a 2/5/21 Order Revoking the Hospital Surge Order. The Legislature extended the eviction moratorium. The following Counties have changed Tiers: Alpine (Red Tier to Orange);Trinity (Red Tier to Orange).

Northern California. Alameda County issued a 2/3/21 Press Release re: Mega Vaccination Site in Oakland which will expand eligibility of vaccines to essential workers, seniors (65+) and high-risk individuals in phase 1B.

Contra Costa County issued a 2/3/21 Press Release re: Vaccine Supply Shortages leading health officials to urge prioritization of those 65+. The County issued new School Guidance.

Lake County issued a 2/3/21 Press Release re: Limited Vaccination Scheduling for Those 65+.

Mendocino County issued a 1/30/21 Press Release re: Revised School Order. The County issued a 1/30/21 Revised School Order and 1/31/21 School Reopening Guidance.

Mono County issued a 1/31/21 Press Release re: County Alignment with Purple Tier Lodging Guidance. The County issued a 2/4/21 Press Release re: Vaccinating Phase 1B Tier 1 and Those 55+ With Underlying Medical Conditions.  Mammoth Lakes issued 1/31/21 Short-Term Rental Lodging Order for Purple Tier.

Monterey County issued a 2/5/21 Press Release re: Mass Vaccination Sites.

Napa County issued a 2/3/21 Press Release re: Vaccine Shortage and Prioritizing Those Healthcare Workers and Those 75+.

Placer County issued a 2/5/21 COVID-19 Update.

San Francisco issued a 2/4/21 Press Release re: High-Volume Vaccine Site.

San Joaquin County issued a 2/4/21 Press Release re: Vaccination Interest Form.

San Mateo County issued a 2/3/21 Press Release re: Vaccine Shortages and Prioritizing Those 75+ for Vaccines.

Santa Clara County issued a 2/3/21 Press Release re: Priority Vaccination for Those 65+. The County issued a 2/4/21 Press Release re: Providing Vaccine to Those 65+ Regardless of County of Care. The County issued a new Vaccine Dashboard. The County issued a 2/5/21 Press Release re: Largest Vaccination Site at Levi Stadium.

Santa Cruz County issued a 2/3/21 Press Release re: Prioritization of Those 75+ Due to Vaccine Shortage.

Shasta County issued a 2/5/21 Press Release re: Teacher Vaccinations Beginning Next Week.

Sonoma County issued a new Health Order dated 1/31/21. The County issued a 2/5/21 Press Release re: Vaccination of Those 70+ Beginning Monday

Tehama County issued a 2/2/21 Press Release re: Vaccination Updates.


Southern California. Los Angeles County is prohibiting the Super Bowl on televisions at restaurants, breweries and wineries. They updated definition of household for Campgrounds and RV parks, to exclude institutional group living such as dormitories, fraternities, sororities, monasteries, convents, or residential care facilities. Also excludes commercial living arrangements such as boarding houses, hotels or motels.

Riverside County reminds residents to avoid gatherings during Super Bowl Sunday.

San Luis Obispo County urges residents to celebrate safely for Super Bowl Sunday.

San Bernardino County urges residents to use caution for Super Bowl Sunday and avoid behaviors that could lead to another spike in Covid-19 infections.

Ventura County is recommending restaurants, bars, distilleries, breweries and wineries to keep their television sets off in customer areas on Super Bowl Sunday to prevent large gatherings.


READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 2-5-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

Balcony Inspection Feedback

Jan 31, 2021 0 Views 0 Comments

Is the Risk Real? Your newsletter about balcony inspections was a little scary. Is the risk of a balcony collapse real? Has anyone in California been injured from a balcony collapse? -David J.

ANSWER: Balcony and walkway collapses are real. Following are some examples:

In 1981, two walkways at a Hyatt Hotel in Kansas City collapsed, one onto the other, killing 114 and injuring 216.

In 1992, a balcony in Malibu packed with partiers collapsed, pitching everyone 25 feet onto rocky surf below killing 2 and injuring 29. The 35 paramedics who responded were hampered by slippery rocks and crashing waves as they rescued seriously injured victims.

In 2003, wood rot led to a balcony collapse in Chicago killing 13 partiers and injuring 57. Subsequent inspections of similar structures in Chicago found 1,260 needing repairs.

In 2005, an association we represented discovered every one of its balconies had to be renovated when an owner stepped onto her balcony and went through the flooring. The structural elements suffered serious dryrot because the developer had installed ceramic tile on the decks which allowed water to seep through the grout and migrate into the wood underneath. The emergency special assessment that followed was well over one million dollars.

In 2010, another association our firm represented noticed balcony railings were loose. Investigation showed that the structural elements were suffering dryrot. Every balcony had to be stripped and rebuilt. There was nothing in their reserves to cover the expense and a large special assessment was levied.

In 2015, a third-story balcony in Berkeley collapsed pitching students 30 feet to the pavement below, killing 6 and injuring 7. Subsequent inspections found that more than 400 balconies and decks in Berkeley needed corrective work.

In 2019, 22 people were injured in Wildwood, New Jersey, when three levels of decking in a condominium association collapsed pancake style onto one another. People on the middle and lower decks suffered serious broken bone injuries. Inspections were ordered for all balconies and decks on the island.

In 2019, a Virginia Tech Professor studied balcony collapses and noted 239 major collapses in a fifteen-year period from 2001 to 2016 leading to 4,600 emergency room visits.

Invasive Inspection. An imminent balcony failure cannot be detected by an external visual inspection. That's why it must be invasive. There are two methods of conducting the inspection. The first is to cut open the underside of a balcony exposing the structure and installing inspection vents. The vents allow for future inspections.

Another method is to drill a hole into the underside and insert the flexible tube of a borescope that allows the inspector to see the structural elements. In the medical field, a variation of the scope is used to perform colonoscopies and endoscopies.

RECOMMENDATION: To be indelicate, all condominium associations in California with 3 or more units are required to have a colonoscopy. If an association fails or refuses to comply with the statute's requirements, it will be a breach of the board's duty of care and deemed negligent as a matter of law. (See Negligence Per Se.) Then, it's only a matter of establishing the amount of damages the association will be ordered to pay. The special assessment that follows will be significantly more than the cost of complying with the law.

Boards should start scheduling inspections. Reserves can be used to pay for the inspections without it being a borrowing. (Be sure to inform your reserve analyst.) Following is a list of inspection companies readers sent to us. For easy reference, they are also included on our website under Elevated Structure Inspections. If readers know of other companies, I will include their contact information on our website.

A7 Group, Inc.
700 2nd Street Unit H
Encinitas, CA 92024
(760) 945-3700
Adam Rohrbaugh
www.a7architect.com
CL Sigler & Association
523 Charcot Ave. #203, San Jose 95131 (408) 922-0262 and 74820 Borro Dr., Palm Desert 92260 (760) 469-3048
www.siglercm.com
A.D. Magellan
701 Palomar Airport Rd. Suite 300, Carlsbad, CA 92011
Becky Larson
[email protected]
www.admagellan.com
Design Build Associates
5655 Lindero Canyon Road, Suite 321, Westlake Village, CA 91362
(818) 889-0402
Dennis Brooks
[email protected]
www.dbuild.com
AWS Consultants
2030 E 4th St #208D
Santa Ana, CA 92705
(714) 835-2301
Carl Brown
[email protected]
www.awsconsultants.com
Focused Inspection Group
1999 S. Bascom Ave., Suite 700, Campbell 95008 and 333 City Blvd. West, Suite 1700, Orange 92868
Alex Riley
[email protected]
www.focusedinspections.com
Axis Consultants
2544 Barrington Court
Hayward, CA 94545
(833) 799-0333
MaryAnne Siena
[email protected]
www.axisconsultants.com
Southern Cross Consultants
4045 Hancock St., Suite 240
San Diego 92110
(858) 395-8657
Matthew Boomhower, AIA
[email protected]
www.SouthernCrossPC.com
Bergeman Group
(833) 558-0888
Robert Grosse
[email protected]
www.bergemangroup.com
Van Sande Consultants
2920 De la Vina St.
Santa Barbara 93105
805-963-6901
Carolle Van Sande, CSM
[email protected]
www.vansandestructural.com

Planned Developments. Our PUD complex has elevated balconies but maintenance is the responsibility of owners not the HOA. Is the HOA still required to arrange for and pay for safety inspections? Are owners required to get inspections? -K.S.

ANSWER: If owners need an inspection, they should contact their doctor. If their balcony needs an inspection, they should see the list above. To be clear, the statute does NOT apply to planned developments, only to condominium associations with 3 or more units. Those with townhouse construction should have legal counsel review their documents since allocation of responsibilities does not always follow ownership.

Insurance. Does HOA insurance cover the cost of balcony inspections and repairs? –Anonymous

ANSWER: No, it does not. That's why it's important for associations to inspect their balconies now so they can coordinate with their reserve study provider to start reserving for future repairs.


Federal Updates. CDC updated guidance on at-home testing. Also updated guidance on what to expect at your vaccine appointment.

Statewide Updates. Governor Newsom signed an executive order on 1/27 to confer immunity to healthcare providers administering the vaccine to increase the number of healthcare professionals available to vaccinate the public. Due to increased ICU availability projections, Public Health Officials Lift Regional Stay at Home Order for All Regions. The Governor announced Actions to Simplify, Standardize and Address Vaccine Supply Needs in order to improve statewide vaccinations.

Northern California. Alameda County issued a new Order effective 1/25/20 aligning with the state’s blueprint. They have removed their facial covering order and aligned with the CDPH guidance on this issue. They have also aligned with the CDPH re: public gatherings. The County issued a 1/15/21 Press Release re Lifting of Regional Stay at Home Order. The County issued a 1/28/21 Press Release re: Aligning with State Guidance for School Reopening.

Butte County issued a 1/25/21 Press Release re: Beginning Vaccine Notification for Those 75+. The County issued a subsequent 1/28/21 Press Release re: Online Vaccine Appointment Scheduling for Those 75+.

Contra Costa County issued a 1/25/21 Press Release re: Lifting of Regional Stay at Home Order. Changes include outdoor dining, hair salons etc. may open, and outdoor gatherings of 25 people or fewer from 3 or fewer different households now permitted. The County has gone back to it’s social gathering and Social Distancing Order. The County issued a 1/26/21 Ethical Framework for Vaccine Allocation. They also issued an updated “Openings at a Glance”.

Lake County issued a 1/22/21 Press Release re: High Vaccine Demand.

Madera County issued a 1/26/21 Press Release re: Vaccine Clinic Reopening.

Marin County issued a 1/21/21 Press Release re: Vaccine Distribution Focusing on 75+. The County issued a 1/25/21 Press Release re: Regional Stay at Home Order Lifted. The County has reverted to its prior Order.

Mendocino County issued a 1/27/21 Press Release re: Scheduling Three Vaccination Events.

Mono County issued a 1/25/21 Press Release re: Lifting of Regional Stay at Home Order.

Monterey County issued a 1/25/21 Press Release re: Lifting Stay at Home Order. Monterey County issued a 1/28/21 Press Release re: Transitioning Vaccines to Those 75+.

Napa County issued a 1/25/21 Press Release re: Lifting of Stay at Home Order.

Sacramento County issued a new Health Order to align with the Purple Tier.

San Francisco County issued a 1/28/21 Press Release re: Reopenings After Lifting of Regional Stay at Home Order. The County issued a new Order to align with the lifting of the Regional Stay at Home Order.

San Joaquin County issued a 1/25/21 Press Release re: Regional Stay at Home Order Lifted.

San Mateo County issued a 1/25/21 Press Release re: Lifting of the Regional Stay at Home Order. The County issued a 1/28/21 Press Release re: COVID-19 Vaccine and Other Updates.

Santa Clara County issued a 1/25/21 Press Release re: Lifting of Regional Stay at Home Order. The County issued a 1/26/21 Press Release re: Expanding Vaccines to Those 65+. The County issued an Executive Summary of Changes.

Sutter and Yuba County issued a 1/26/21 Joint Press Release re: Prioritizing Vaccines for Those 65+.

Tulare County issued a 1/25/21 Press Release: re Lifting Regional Stay at Home Order.

Tuolumne County issued a 1/25/21 Press Release re: Lifting of the Regional Stay at Home Order.
 
Southern California. Los Angeles County reinstated the health order dated November 25, 2020 with minor modifications to align with the lifting of the State’s Regional Stay at Home Order which is included in the spreadsheet.

San Diego County issued new health order to align with the lifting of the State’s Regional Stay at Home Order and launched an interactive vaccination site map.

City of San Diego issued an executive order capping third-party restaurant delivery fees to 18%. Also allows for creation of curbside pickup parking spaces for restaurants.

San Luis Obispo County exits the State’s Regional Stay at Home Order and returns to purple tier.

An emergency order which temporarily suspends development standards for non-residential uses to assist businesses to comply with social distancing and other requirements, including suspending: minimum setback; maximum height of temporary structures, and onsite parking requirements.

San Bernardino County returned to purple tier. In person gatherings are limited to three households.

Santa Barbara issued a new health order to align with the lifting of the State’s Regional Stay at Home Order which is included in the spreadsheet. Private gatherings are limited to three households. Face coverings order for wearing of face coverings outside extended to February 20, 2021.

Ventura County returned to purple tier after State lifted Regional Stay at Home Order.

READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 1-29-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.