Delinquent Board Member

Jun 7, 2020 0 Views 0 Comments

QUESTION. Can a board member with a long past-due delinquent assessment run for reelection when our governing documents require candidates be current in their assessments? -Lea B.

RESPONSE: Yes. Marjorie Murray's organization voided director qualifications in every association in California that did not comply with the bill her organization sponsored. SB 323 created one mandatory and four permissive qualifications. You will need to amend your governing documents to comply with her bill.

Water Exercise. Thanks for the work helping HOAs open their pools. We finally opened and I can't tell you how much I missed my exercise. I contacted the local health department and Gavin Newsom. I think at least Orange County finally realized they were too ambiguous with their pool rules. It helped having LA county deem HOA pools private, as it should be. -David F.

RESPONSE: I'm glad yours opened. Unfortunately, confusion continues to reign between the state and various county health departments. Too many counties continue to keep facilities closed or impose heavy-handed restrictions. Some are finally opening pools but it's a hodge-podge of guidelines and orders.

Impossible to Comply. Our HOA is located in Orange County. Our pools are currently closed. Some of the protocols for re-opening are not possible for us. Do we need to continue to keep the pools closed? -Anonymous

RESPONSE: Orange and San Diego Counties are a mess. Orange County continues to send mixed signals and San Diego keeps everyone in lock-down. Boards should have legal counsel advise them on whether their county recommends sensible guidelines or imposes conditions that cannot be met.

Director Meeting Attendance. I really enjoy the newsletter and all the Q&A, not to mention much needed humor. We are currently updating our bylaws to comply with SB 323. Can we keep our meeting attendance requirement for board members? We don't allow more than 3 absences within a 12-month period. -Ellen V.

RESPONSE: Yes, I believe you can keep your performance condition in place. If a director does not have the time or interest to attend meetings, he/she should not be on the board. When we restate bylaws for associations, we add several provisions for removing directors, including being absent for more than three consecutive regular meetings or more than four meetings in any twelve-month period. In addition, we include a section for membership removal of directors.

Want to Resign. My value as a board member has risen since I began reading your newsletters. Thank you! Last year we could only convince one person to serve. The treasurer and I reluctantly allowed ourselves to be voted back in. I really want to quit next year and let the chips fall where they may, but from reading your past newsletters I CAN’T. -Vanessa W.

RESPONSE: Homeowners generally follow the rule of thumb that "If it's not broken, leave it alone." You may need to carry through with your plans to retire. Once owners realize things will not t get done if no one steps up, you have a better chance of getting a volunteer.

Sign in the Window. Regarding the president who contacted an owner to remove a “Black Lives Matter” sign because another owner was selling a property, your judicious response was to say that if a buyer was offended by the sign and chose not to buy, they were not a good fit for the community. That was a diplomatic answer that made a good point if the reader was willing to think about it. Week after week, your newsletter speaks to problems caused by board members who act without bothering to do the absolutely FIRST thing required of them--to know how to look up something in Civil Code and read it before acting. Your firm’s website is an easy and vital tool in this regard. Thanks again for your weekly newsletter and the website. As a member and former board president, I use it often. -Michele J.

RESPONSE: We conduct training sessions for boards that directors find invaluable. We now conduct many of them via Zoom, which is incredibly convenient for directors. The Community Associations Institute (CAI), which has eight chapters throughout California, and Educational Community for HOA Homeowners (ECHO) in Northern California.

Seller Disclosures. We frequently receive the following questions from escrows: “Are there any violations of restrictions on Seller’s property?” and “Are there any violations of restrictions affecting the HOA?” Why are they differentiating between two different types of “violations of restrictions” and what is the difference supposed to be? -Kevin K.

RESPONSE: I have not run into this before and have no idea what the distinction might be. If you find out, let me know.


NorCal Counties. Butte County included pool openings in day camps, schools, camping and hotels effective June 12.

Solano County and Placer County both have great signage that could be utilized as a guide for associations.

Alameda County is allowing small “social bubble” gatherings in outdoor spaces subject to conditions. It also allows childcare to open, libraries may open for curbside pick-up, certain businesses may resume operation.

Contra Costa County is allowing outdoor swimming and outdoor seating at restaurants and dog parks. In addition, outdoor religious services of up to 100 people, indoor religious services of up to 12 people, use of outdoor picnic and barbecue spaces, and overnight camping for people belonging to the same household.

El Dorado County will allow all 12 sectors the State has given guidance to on open June 12. They have also written a letter to Newsom asking for modification of the State Stay at Home Order to relax travel restrictions.

Lake County will open indoor dining and other Stage 3 businesses once the State provides guidance.

Marin County is allowing dog parks and outdoor swimming pools to open. There were some businesses, protests and religious ceremonies permitted effective June 5.

Napa County will allow some businesses and day camps once guidance is available.

San Joaquin County clarified that other businesses and activities will open pursuant to updated guidelines.

San Mateo County added information about additional businesses and activities and does not change anything on the chart.

Santa Clara County opened additional businesses as noted in the Executive Summary. It also opens swimming in pools (following guidelines) and tennis.

Sonoma County residents can drive to coastal parks and trails for low-risk recreation. they allow sunbathing and relaxing on beaches with social distancing and face coverings.

Shasta County added the 12 sectors which the State provided guidance for and indicated that those businesses can reopen when they have a plan, have trained their staff and can implement their plan. This includes short-term rentals, pools, etc.

Sonoma County is allowing the opening of more businesses. It also allows outdoor public, semi-public (HOA), and private (club or member) pools to open for lap swimming, fitness activities, physical therapy or exercise per 16(c)(vi). “Park” for purposes of their guidelines has been defined to include HOA with outdoor facilities. Therefore, associations can open tennis if it can be operated safely pursuant to park order.

Sutter and Yuba Counties are moving to Stage 3 with the sectors that the State provided guidance for as soon as June 12.

Tuolumne County appears to moving in line with openings and changes made by the State.

SoCal Counties. Of note is the state’s new fitness guidelines. They include guidance for swimming facilities within fitness centers. 

City of Palms Springs issued an amended order for all businesses to post signage on facial covering requirement and social distancing.

County of San Luis Obispo terminated its May 16th order restricting short term lodging.

County of San Bernardino will be issuing official guidelines next week for reopening schools in August.  

Updated Chart. For a list of County restrictions and links to Health Department orders, see County Chart 6-7-20. The chart is also posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Hello Adrian, Thank you so much for your great newsletter and website. The newsletter especially is a font of current information in this pandemic, dished out with large doses of practicality and humor. We have a "Welcome to the board" document we give out to new board members, and it basically just says go to the David-Stirling website if you have any questions. Great work and a fantastic resource for HOA boards! -Steve P

Your newsletter has been very helpful during this Covid time. Thank you. -Linda F.

Hello Adrian, always love your informative newsletter. Thanks for always keep CID up to date with the latest information. -Randi M.

OMG! I'm in hysterics over your qualifications to be HOA president. Spot On! (ex-HOA President) -Patsy T.

Thank you for paying homage to those brave souls who are presidents of HOAs. -Anonymous

In addition to breathing, to be a successful HOA president it helps to have a touch of grey hair, or a bald spot, to show that you DO have some life experiences. -Wayne W.

RESPONSE: I agree. Board members with some life experience tend to be more patient and understanding when dealing with homeowner concerns.


Two days after I moved into my unit, an issue came up relating to the CC&Rs. As I had just read them in connection with my acquisition, I was able advise the board of their content. Proving no good deed goes unpunished, the next day I received an email from the board stating their gratitude for my contribution and they decided I would fill a vacant board seat. I was appointed without even volunteering. At the next board election, I was appointed president. I appreciate all of the info you share on your newsletter. Keep up the good work! -Mark H.

RESPONSE: Some of our clients want to amend their bylaws to include an escrow requirement that all new members immediately serve a two-year term on the board, starting the day after close of escrow. I am slowly warming up to the idea.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Shifting Employees to Management

Sep 20, 2020 0 Views 0 Comments

QUESTION: Is an association's liability reduced if employees are shifted from the association's payroll to the management company's payroll?

RESPONSE: There is some benefit to shifting an associations employees to a management company, but it's mostly one of convenience.

Cost Savings. There are no significant cost savings since salaries, worker's compensation insurance, health insurance, and the employer's portion of payroll taxes are passed through from management to the association.

Potential Liability. Potential liability might be reduced but it does not go away since management contracts routinely indemnify the company, i.e., if the company is sued, the association is obligated to defend the company and pay most judgments. In addition, the association will likely be viewed as a co-employer since it exercises a great deal of control over the employees. Finally, recent HUD and DFEH regulations make associations responsible for investigating and eliminating harassment in the association, including harassment of vendor employees. Failure to do so can result in liability.

Convenience. At best, shifting employees to the management company is more convenient because it reduces the hassle of dealing with payroll, scheduling employees, hiring and firing, etc., all of which will be handled by the management company.

RECOMMENDATION: Transferring employees to a management company's payroll can reduce potential liability if the company has good HR policies and procedures in place. Do they have an HR department and an updated Employee Handbook? Do they have a system for hourly employees to clock in and out so as to avoid wage and hour claims? If they have good systems in place, it reduces the risk of claims being filed. Boards will want to have legal counsel review the management contract before signing it.

DEED IN LIEU
OF FORECLOSURE


QUESTION: As I understand it, a deed in lieu of foreclosure will not eliminate any liens junior to the one with the lender’s interest. It is handled very much like a grant deed transfer and does not eliminate past due assessments. But, a trustee’s deed as the result of a foreclosure will remove any junior liens or encumbrances from the property as well as any past due assessments. Is that correct? -Robert B.

RESPONSE: Yes, your understanding is correct. A purchase money lender will be in the first position. As the senior lien holder, if a first mortgagee forecloses, it wipes out all junior liens. An association can still sue the delinquent owner for a personal money judgment since assessments are a personal obligation of the owner but the property no longer serves as security.

Lien Protections. If an association's assessment lien (Notice of Delinquent Assessment) is recorded prior to the recordation of a deed in lieu of foreclosure, the party accepting the deed takes it subject to the assessment lien which can be enforced against the property. If the deed in lieu is from the owner to the first mortgagee, the lender is not personally liable for past assessments but the property is subject to the association's lien and the assessment lien can be foreclosed upon for the amount secured by the lien.

Notice of Non-Acceptance. Also of interest, because a deed in lieu can be recorded by the grantor alone, without the consent of the grantee, Civil Code Section 1058.5(a) allows the grantee to refuse the recorded deed in lieu by recording a Notice of Non-Acceptance. This prevents owners from unilaterally undermining the lender's right to foreclose and extinguish junior liens.

Deeds In Lieu Not Favored. Finally, due to the fact that a property remains subject to all other liens in a deed in lieu transaction, as a rule, a lender will not accept a deed in lieu when there are junior liens which the lender could, as mentioned above, extinguish through a foreclosure action. Usually, an escrow is opened in the deed in lieu transaction and a policy of title insurance is issued in favor of the grantee assuring that there are no junior liens on the date that the deed in lieu records. Otherwise, the property owner could record a junior deed of trust the day before the deed in lieu records and the lender would take the property subject to same.

RECOMMENDATION: General information about liens and foreclosures can be found in our Assessment Collection Menu. Boards should always work with legal counsel or their assessment collection service whenever they have questions about delinquent assessments. This is particularly important since the pandemic has complicated the entire collection process. Many thanks to Richard Witkin of Witkin & Neal for his assistance with this question.


NorCal Counties. Contra Costa County has a new order to align with the State's Blueprint guidance. At this time, the County does not have different reopening rules for business and activities beyond what is required by the State. The order allows the following additional businesses to reopen: personal care services that involve close contact with the face may operate outdoors (excludes tattooing, piercing and nonmedical electrolysis); racetracks and cardrooms may operate outdoors; music, television and film production may resume; professional sports without live audiences may resume.

Mono County issued a press release indicating that the Mammoth Lakes has adopted an urgency ordinance to enforce Mono County Health Orders. That press release can be found here: Mammoth Lake Press Release dated 9/11/20 re: Ordinance to Enforce Health Orders.

San Francisco has new Health Directives related to the following: indoor operation of gyms and fitness centers up to 10% capacity; indoor personal care services with restrictions; hotels and lodging opening for tourists; drive-in movies and gatherings; specified outdoor gatherings with health guidelines. Guidance links for gyms and fitness centers has been posted in the “notes” section of our chart.

Santa Clara County has a new order related to required testing for certain persons: Santa Clara County Order dated 9/16/20 re Testing.

SoCal Counties. Los Angeles County updated its tennis/pickleball protocols to prohibits group lessons over four (4) students.

Orange County schools are allowed to reopen for in person instruction starting 9/22.

San Diego County made minor changes to its health order on 9/10 with clarifications to reopening schools.

Santa Barbara County updated its face covering order to align with state’s blueprint for safer economy.  Effective 9/18/20 through 10/17/20. 

Ventura County released Halloween guidance, similar to Los Angeles County’s guidelines.


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 9-16-20. The chart is also posted on our website.


Timeline Calculator #1. Thank you, thank you, thank you for creating such a wonderful and useful tool. Awesome effort, maximum benefit for all. I'm truly grateful for the creativity and thought into this. You guys are the best in supporting this HOA industry. -Tina W.

Timeline Calculator #2
. I was very excited to see your Election Calculator. When trying to use it, the form wouldn't let me enter the date for counting ballots. -MaryAnn C.

RESPONSE: We had a few emails similar to yours. The calendar will not accept dates that do not allow enough time to complete the election. Dates that are too soon are grayed out. You can see at a glance when viewing the pop-up calendar the earliest possible date for conducting your annual meeting--those dates are not grayed out. The other issue we discovered is the calculator works on iPhones but not Androids. We did a little more coding and corrected the problem. We welcome all feedback on any issues that users might encounter.

Timeline Calculator #3.The election timeline calculator--very cool tool. -T.G.

Timeline Calculator #4. Woo-hoo it works! Great application. -Candice S.

Timeline Calculator #5. Thank you very much for creating the Election Timeline Calculator. I can’t use the date 12/03/20 for our voting deadline. Am I mistaken about our date being 12/3/20? -Donald S.

Timeline Calculator #6. Do you have an Election Calculator for Florida condominiums? -Merrill F.

RESPONSE: We did not create one for Florida--we don't practice law in your great state. We've had many requests to open offices in Florida, Texas, Arizona, Nevada, Missouri and Illinois. California keeps us so busy we couldn't possibly open offices in other states.

Timeline Calculator #7. Thank you for the calculator. My inspector provided a time line for our meetings, but only after we approved the bid, so this is great to prepare an annual calendar for next year for each community. –Jennifer S.

Timeline Calculator #8. Thoughtful to have designed an election time line calculator! Many thanks. -Denyse B.

Timeline Calculator #9. Your website makes it easy for board members and homeowners to research their respective rights and obligations. Is there a similar website for other states (specifically Arizona?) –Bob D.

RESPONSE: I am not aware of any websites like ours in other states. You might check with the Arizona chapter of CAI to see if there is something similar in your state.

Not Appalled. Hello, I am one of your subscriber’s that appreciates your newsletter, not appalled. :) -Nicole S.

Non-Owner Spouse. Thank you once again for a fabulous newsletter. I do have one dissenting opinion. If a spouse doesn’t see fit to put their partner on title for whatever reason the association shouldn’t have to allow him or her to be on the board no matter how well meaning. My main concern is the non-owner spouse doesn’t have any fiduciary interest. Their vote may not be in the associations best interest. I have also experienced the spouse that has something to prove or the need to wield power. –Gary S.

Can't Believe What I Missed. I read all of your newsletter/emails and forward them but this is the first time I looked at the rest of your website. I can't believe what I've missed!!! Must be age! LOL. I would like to direct people to all the options on your website, because, if I, Miss Busybody, missed them, I know others are missing them, too. Thank you a million times for all your wonderful efforts. -L.Q.

RESPONSE: Thank you for directing people to our website. We cover every aspect of the law related to community associations in California. In addition to the Main Index of topics we have over 60 menus dedicated to important subjects from board meetings to rules enforcement, accounting, architectural issues, assessment collection, discrimination, and dozens of other issues. Wherever possible, we provide practical advice. We also keep track of all the new legislation and case law and provide a free job market.

AB 3180 #1. Several municipalities here in Coachella Valley have passed legislation restricting short term rentals in designated areas and require permitting in other areas. Would the passage of AB 3182 by the State override and eliminate these local restrictions? Thank you for your on-going excellent advice for board members. –Larry D.

RESPONSE: The bill is not aimed at municipal rent restrictions, it targets community associations. If signed into law, associations will not be able to enforce rent restrictions that don't comply with AB 3182.

AB 3182 #2. I sent my email to Gov. Newsom regarding AB 3182, you made it so easy, thank you. How can these mayors and the governor get away with such fiduciary mismanagement? I think they should be sued. And, I want a moratorium on laws in California. They're working 24/7 and the laws are slipshod and biased. -L.Q.

RESPONSE: I agree with a moratorium on new laws--the stuff coming out of Sacramento has been awful. If any of our readers have not yet done so, please immediately ASK GOV. NEWSOM TO VETO AB 3182.

 
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, but you have to actually hire us. It's okay, we're friendly. You can talk to us. Keep in mind we are corporate counsel to California associations only.

Election Timeline Calculator

Sep 13, 2020 0 Views 0 Comments
There has been a great deal of confusion and frustration over the extended election timeline imposed by SB 323. Any missteps in complying with the complicated sequence opens associations to litigation and penalties.
 
Election Calculator. To make life a little easier for board members, managers and inspectors of election, we did a little programming (actually, a lot of programming) and created an Election Timeline Calculator. It will eliminate some of the stress and potential errors in preparing for elections.
 
How It Works. When you put in a date for your annual meeting, it creates a timeline with dates and instructions for each of the key points in the election cycle. If you have not allowed enough time to meet election requirements, it tells you that as well.
 
Election Menu. You can find the Election Calculator and a full menu of election information and procedures in our Election Menu.
 
Many thanks to Senior Attorney Wayne Louvier in our Orange County office and our website tech guru Eugene Ladyzhenskiy for their work creating the calculator.
ANNUAL ELECTION
QUESTIONS


Director Not on Title. One of our board members is not on the title of his home (his wife is sole owner). We have some homeowners complaining that he cannot continue to serve. He knows he cannot serve next term. Can he remain on the board until the election? -Rhonda S. 

RESPONSE: Yes, he can continue to serve until his term ends. (Corp. Code §7220(b).) After that, he can no longer serve no matter how much the community might want him. This is one of the many detrimental provisions imposed by SB 323. 

Waste of Money. We are a small HOA of 22 single-family homes with an annual budget under $40,000. Bids to outsource the inspector of election function (previously handled by our HOA manager for free) have come in between $700 and $1,000. Those bids were dead on arrival. Do we really have to use an outside firm to send out election notices and count ballots for 22 homes?! This seems like a complete waste of homeowners' dues. -Gregory H. 

RESPONSE: Small and medium-sized associations throughout California previously used the services of their management companies to handle their elections. Most elections were handled efficiently and without controversy. SB 323 removed that option. If you can find a volunteer, you can still conduct your elections without the need to hire an outside company. The trick is finding a volunteer.

No Quorum? After many months of delays, our HOA board finally agreed to hold an election. The three board members who are up for election decided not to run but are encouraging people NOT to return ballots so a quorum cannot be reached. Does that mean they remain on the board? -Irene M.

RESPONSE: Yes, they remain on the board. A corporation cannot legally operate without a board of directors. Accordingly, your three directors remain in office until their replacements are elected. (Corp. Code §7220(b).) You need to encourage everyone to vote so you meet quorum and elect a new board. Then, amend your bylaws to eliminate quorum requirements for the election of directors so this never happens again. We include the provision whenever we restate bylaws for clients (along with eliminating cumulative voting, write-ins, and floor nominations). It makes elections easier and less expensive.

Candidate Positions. With annual elections coming up, how am I supposed to determine a candidate's position on matters so I can make an intelligent decision when I vote? -Hank J.

RESPONSE: Common sense tells you that candidates should be allowed to include their position on issues in a candidate statement mailed to members along with a ballot. Unfortunately, this is another pointless restriction imposed on associations. If candidates are allowed to advocate a point of view via association media, equal access must be provided to all candidates and all members advocating a point of view. (Civ. Code §5105(a).) To avoid problems, most associations limit candidate statements to pictures and bios only. If candidates wish, they can separately send their own position statements to members.

Reverse Mortgage. If a board member does a reverse mortgage can he still be on the board? -Beverly D.

RESPONSE: Yes, he can remain on the board (and run for re-election). When an owner takes out a reverse mortgage, title to his home remains in his name.


NorCal Counties. The following Counties have designations which have changed: Amador County went from Tier 1 to Tier 2; Placer County went from Tier 1 to Tier 2; Santa Clara went from Tier 1 to Tier 2; Santa Cruz went from Tier 1 to Tier 2;

Butte County’s COVID-19 website and dashboard cannot be updated and one of their hotlines is down as a result of the Bear Fire.

Contra Costa County has a new order of September 4, 2020 which allows for specified activities involving children and youth, allows mining and logging businesses to operate, and clarifies vehicle gatherings remain an exception to gatherings of those from more than one household.

Marin County has 15 schools which have been cleared to resume in-person classroom learning as of September 8: Press Release dated 9/3/20 re 15 Marin Schools Cleared to Open. Marin County issued a press release on September 8, 2020 indicating that the County’s planned move to Tier 2 has been delayed while the State conducts further review:  Press Release dated 9/8/20 re Marin Not Moving to Tier 2 Yet.

Mendocino County has a new order dated September 8, 2020 which removes the 24 hour vacancy restriction between reservations for transient lodging and campground establishments, removes the specific capacity number on permissible outdoor gatherings and allows the number of attendees which can be accommodated in the outdoor location maintaining six feet. The order also removes the prohibition of use of commercial wedding venues, commercial event centers and conference centers for outdoor religious and cultural ceremonies. The order also instituted a requirement that places of worship and providers of religious and cultural ceremonies maintain a sign-in sheet for attendees of such services/ceremonies for at least 14 days following the event to share with health officials for contact tracing purposes.

Placer County moved from Tier 1 to Tier 2 and issued a press release dated September 9, 2020 indicating that the County Board of Supervisors approved a resolution declaring the end of Placer County’s local health emergency but reminded residents that the state emergency and orders are still in effect: Placer County Press Release dated 9/9/20 re: End of Local Health Emergency.

San Francisco has new health directives allowing gyms and fitness centers to open outdoors: San Francisco County Press Release dated 9/9/20 re Outdoor Gyms and Fitness Centers Open.

Santa Clara County moved from Tier 1 to Tier 2 and updated their County order to reflect the same. The following are now permitted to open in compliance with industry-specific directives: schools (after 14 days in Tier 2); indoor personal care services; museums, zoos, aquariums indoors at 25% capacity; gyms and fitness centers indoors at 10% capacity; and indoor shopping malls at 50% capacity. Indoor dining, indoor movie theaters, and indoor gatherings remain prohibited.

Santa Cruz moved from Tier 1 to Tier 2 and issued a press release dated 9/8/20 indicating that following are allowed to open indoors with modifications: personal care services such as waxing, nails and massage; restaurants; places of worship; movie theaters; gyms and fitness centers; museums, zoos and aquariums. No schools may open for in-person instruction until the County has been in Tier 2 for 14 days.


SoCal Counties. Los Angeles County issued guidelines on Halloween, not permitting Halloween gatherings of non-household members including outdoors, further carnivals, festivals, live entertainment, and haunted houses are also not permitted. The health department does not recommend door to door trick or treating. The guidelines also provided ideas for safer Halloween celebrations of online parties and contests, car parades, and Halloween drive-in movies.

The County also updated its tennis & pickleball protocols that doubles play is permitted when standing six feet apart from each other and wearing a mask when not actively playing on the court.

*Los Angeles made a major concession in it's pool policy--masks are not required when in the water.

Orange County provided a new health order as of September 8, 2020 as it moved to Tier 2 in the state system, where personal care services, gyms, movie theaters, museums, and restaurants can open indoors with specific modifications and capacity limitations for each industry sector. There is a mandatory flu vaccinations for providers in congregate settings, health care providers, or emergency responders. All other residents are strongly recommended to obtain flu vaccination.


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 9-10-20. The chart is also posted on our website.


Thank you so much for alerting us to this terrible law [AB 3182]. It is a mystery to me why this was passed; it does nothing to help the housing crisis is California. But I wish the letter to Newsom were more specific about the problems with this new law. I know these messages should not be too long, but the last two points in your problem list should have been pointed out specifically it seems. -Joan W.

RESPONSE:
Everyone should immediately ASK GOV. NEWSOM TO VETO AB 3182. Please feel free to compose your own email message rather than use the one proposed by CAI-CLAC.

I'm just shocked that these idiots in Sacramento keep up the onslaught [AB 3182]. After reading your newsletter today, I posted a notice on the local NextDoor website to communicate this to all the condominium readers in the Tarzana area. -Julian M.

RESPONSE: Assemblyman Phil Ting, author if AB 3182, is a graduate of U.C. Berkeley and Harvard University. I checked each school's curriculum and common sense is not a course taught at either school.

WHO ELECTS THESE IDIOTS IN SACRAMENTO?? -Hank J.

RESPONSE: With the steady stream of bad legislation out of Sacramento, we need to elect different people to the Assembly and Senate. In addition, everyone needs to sign-up for CAI-CLAC's newsletter and write your legislators whenever alerts are sent out.

Limiting Rentals. Thank you for helping us contact the Governor about AB 3182. How does an HOA limit the number of rentals? We are currently near 30–35% rentals. If we wanted to place a limit of 25%, for example, how would we go about making that change and implementing it? -Robert C.

RESPONSE: The best way is to amend your CC&Rs, which requires membership approval and is easier to enforce in court. Because CC&Rs are difficult to amend, boards can amend their Rules & Regs to have something in place until such time as their CC&Rs can be amended.

OUTSTANDING, AS ALWAYS!!! -BILL B.

Your newsletter is wonderful--what a great resource. Always fun and informative to read! -Sonal J.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

Rent Restrictions Voided

Sep 9, 2020 0 Views 0 Comments

Assembly Bill 3182 passed both the Senate and the Assembly last week and is on the Governor's desk. If signed into law, it will negatively impact associations and their ability to regulate rentals.

Problems with Renters. Although there are exceptions:

  • renters tend to violate rules more often than owners,
  • renters have more calls to the police than owners,
  • renters & landlords are less inclined to invest in the upkeep of their properties,
  • short-term rentals create security issues due to their high turn-over,
  • landlords are less likely to volunteer to assist the community,
  • landlords have a higher delinquency rate,
  • a high percentage of renters depresses property values,
  • lenders recognize the problems associated with renters and are less inclined to loan or will lend at a higher interest rate in communities with a high percentage of renters.

Limit Renters. To ensure stability and preserve property values, many associations limit the number of rentals in their communities by imposing a cap at 10%, 15% or 20% of their units. In addition, many require leases to be at least six months or one year to avoid a high turn-over of residents. They want renters to stay long-term and integrate into the community.

Restrictions Voided. Assemblyman Phil Ting (D-San Francisco) pushed through AB 3182, which makes unenforceable rental caps more restrictive than 25% and lease terms longer than 30 days. An association can adopt a 25% (or less restrictive) rental cap and require leases to be at least 30 days (but not more restrictive).

Requires Amendment of Documents.
Associations already have impaired budgets due to high unemployment created by the Governor's lockdown order. And we just went through a costly round of election rule amendments imposed by SB 323. If signed into law, AB 3182 requires another round of document amendments:

...a common interest development shall amend their governing documents to conform to the requirements of this section no later than December 31, 2021.

$1,000 Penalty. AB 3182 imposes a civil penalty of up to $1,000 on associations that fail to update their documents.

A common interest development that willfully violates this section shall...pay a civil penalty...in amount not to exceed one thousand dollars ($1,000).

Loss of All Rental Restrictions. Since AB 3182 voids existing non-compliant rent restrictions, associations that can't amend their documents will not have any rent restrictions. For those associations with lease term requirements longer than 30 days, they will cease to have any lease term requirements. That opens them to short-term vacation rentals and hotel-like operations.

Destabilizing Communities. According to Assemblyman Ting's website, "AB 3182 would...bolster the state’s housing supply." That is not true. Converting stable owner-occupied housing into rentals does not increase the housing supply, it merely converts owner-occupied housing into rentals. The obvious solution to increasing the state's rental housing is to build more apartments.

Please immediately ASK GOV. NEWSOM TO VETO AB 3182.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

Excessive Rentals

Sep 4, 2020 0 Views 0 Comments

Excessive Rentals. Our community is only 6 years old. Investors came in, rented their property, and left. As it stands now, out of 350 homes, 60% are rented and the other 40% are owned.

Renters don't care about the property and have little sense of community pride. When we send violation letters out, we're sending them to the homes that are rented, because that's the address the owner left with the HOA.


Investors are renting for profits and not for the stability of the community. What can our HOA do to decrease the level of renters occupying these homes? -Geoffrey G.

RESPONSE: With 60% of your community as rentals, I don't think there is a solution. I've seen too many association's hit the 40%+ mark and never recover.

AB 3182. Amending your CC&Rs to limit rentals will be impossible. All the investors will vote against it. Moreover,
AB 3182 passed the Senate and Assembly earlier this week and will wreak havoc on community associations if signed into law. It opens the door to even more rentals in HOA communities. I will report on it in our next newsletter.

No Solution. A high percentage of rentals is the death knell of a community. There will be a steady decline in the upkeep of homes, opposition to dues increases to build strong reserves, ongoing problems with rules enforcement, and a negative impact on property values. I know it's a pessimistic view. You can either grit your teeth and do your best to hold the line or sell your home and get out while the community is still new and your property values high.

BOARDS NOT
ANSWERING QUESTIONS


QUESTION. Does the board have a responsibility to answer questions asked by members during public comments at a board meeting? I know we are not obligated to answer during the board meeting, however, do we NEVER answer the question? Seems kind of counter productive to not communicate with the community. -Sue B.

RESPONSE: There is nothing in the Davis-Stirling Act that requires the board to answer questions. Instead, there is a provision in the Act limiting the board's ability to answer questions at board meetings, which makes no sense at all. (Civ. Code §4930(b).)

When boards refuse to answer questions, members get frustrated and become suspicious that directors are hiding something. Fortunately, there is no penalty attached to the restriction and, in my experience, most boards readily answer most questions. I am not aware of anyone running into court for an order to stop boards from answering questions.

As a practical matter, boards need to keep the membership informed and answer questions in a timely fashion. Some questions can't be answered on the spot, and a director or manager will follow-up with the person asking the question. Some questions are answered in a newsletter so all members receive the benefit of the answer.

RECOMMENDATION: I recommend boards be as open as possible and communicate frequently with the membership.

Circulating Agenda Items. Our president inquires of the rest of the board if they have agenda items for the board meeting. The president then puts the item on the agenda. Is this legal? -Brenda H.

RESPONSE: Yes, it's perfectly legal. It's an administrative function and does not violate the Open Meeting Act. See Exceptions to Open Meeting Act.


Proof-Reading. Is it acceptable for board members to pass around documents via email for the purpose of proof-reading and adding input like grammar corrections, etc.? -Roger D.

RESPONSE: Yes, it's legal. As with setting the agenda, it's an administrative function. As long as the board is not discussing matters that will come before the board but, instead, is performing an administrative task such as proof-reading, it does not violate the Open Meeting Act.

Snowbirds. How can boards communicate without violating the law? Four out of five of our board members are snowbirds and currently out of country. We are dealing with landscape issues that require immediate action so I have written a few emails to the entire board but our management company has informed me that my emails violate the Civil Code. -Marius O.

RESPONSE: You can hold open meetings via teleconference or video conference such as Zoom with 4-days' notice. If it's urgent, you can hold an emergency meeting. In all cases, keep minutes so you have a record of the board's decisions.


NorCal Counties.At his press conference on Friday, Newsom announced that the Monitoring List would no longer be used and that it was being replaced by the Blueprint for a Safer Economy. More information can be found here: Blueprint for a Safer Economy. You can track your County here: State County Tracker I have noted what tier counties are in based on the number next to the County name With 1 being the worst (widespread), 2 (substantial), 3 (moderate) and 4 being the best (minimal). This resulted in new businesses being allowed to open throughout the State (noting that Counties can be more restrictive): What Businesses May Open Pursuant to Blueprint. The CDPH issued a new Order dated 8/28/20.

Alameda issued a press release on August 31, 2020 indicating that they are evaluating which businesses they will be opening pursuant to the new regulations noted by the State. Alameda County August 31, 2020 Press Release

Butte County issued another press release about a spike in cases among college aged persons. The press release notes that gatherings of any size are required to be postponed or canceled.

Contra Costa County issued a press release August 31, 2020 indicating that indoor hair salons and barbershops may now open, indoor shopping malls may reopen at 25% maximum capacity with congregation and food courts closed, gyms and fitness centers may open outdoors.

El Dorado County issues a press release indicating that it believed it was misclassified in the tiered system. On September 1, 2020, a new press release was issued indicating the circumstances under which the County can more to tier 3 by the week of September 21.

Fresno County issued an advisory on September 2, 2020 regarding the status of schools noting that all schools are to remain closed for in-person instruction and providing more specific guidance. They also provided updates re Youth and School-Based Sports: Guidance re Youth and School Based Sports.

Marin County has come out with a new way to report businesses that are in violation of the Health Order, which can be found here: Marin County Form to Report Business Violations of Health Order.

Mendocino County issued a new Order on August 28, 2020 to comply with the State’s new tiered system and update the open businesses and restrictions.

Mono County Briefing on September 1, 2020 outlined what businesses could open in mono County based on their status in the tiered system including information about schools, some of which have determined to open in late September. Mono County Briefing dated 9/1/20.

Napa County updated their FAQs related to business operations to comply with the opening based upon the new tiered system. The link for Napa County’s Ordinance re violations of the Health Orders is posted in the Notes section.  Nevada County has a new press release re the tier system and businesses which may now open.

Sacramento County has a new Order dated 8/31/20 that aligns with the State’s new guidance. Sacramento County has a new Order dated 8/28/20 re schools indicating that all schools transitional kindergarten through grade 12 shall immediately close for in-person instruction and remain closed until they are instructed by the Health Officer of Sacramento County that they may reopen.

San Francisco has a new Health Directive dated 9/1/20 which provides industry-specific guidance for businesses. They also issued a press release indicating which sectors are open, noting that they are being more restrictive than the State allows and outlining the goal for future openings.

San Joaquin County has a new Order dated 8/31/20 implementing the Blueprint directives. They also issued an Order of the same date regarding brewpubs, bars, breweries, and pubs indicating that they must follow the State’s Order issued August 28, 2020. The County’s July 29, 2020 press release re schools has also been added.

San Mateo issued an updated that certain sectors are allowed to open pursuant to the State’s Blueprint model which can be found here: San Mateo County Reopening.

Santa Clara issued an update to their Order dated 8/31/20 implementing the State’s Blueprint.

Santa Cruz indicated in a press release dated 8/28/20 that they expect to be in tier 2 on September 8th barring an increase in cases. The press release indicates that indoor hair salons, barbershops and malls may open and that schools must remain closed for in person instruction at this time. A press release was released dated 9/2/20 reminding of beach closures over Labor Day weekend: Santa Cruz County Press Release dated 9/2/20 re Beach Closures Labor Day Weekend.

Solano County issued a revised Order dated 9/1/20 to incorporate the State’s new Blueprint framework.

Sonoma County issued a press release dated 8/30/20 indicating that barber shops, hair salons and malls are allowed to resume indoor operations based on the State’s Blueprint framework.

Tuolumne County issued a new Order dated 8/31/20 implementing the State’s Blueprint framework.


SoCal Counties. Imperial County amended its health order to incorporate the State’s new blueprint model.

Los Angeles County amended its golf course protocols and now allows barbershops and hair salons to operate at 25% capacity indoors. Beginning Monday, September 14, schools K-12 may offer in-school services for small cohorts of students with Individualized Education Plans (IEP), students requiring instruction for English as a Second Language (ESL) or students needing assessments or specialized in-school services, as long as the school is able to fully implement the Health Officer’s re-opening protocols.

The City of Los Angeles updated their Safer LA order to allow indoor hair salons and barbershops.

Riverside County indoor malls can reopen at 25% capacity and indoor barbershops and hair salons.

San Bernardino County indoor malls may reopen at 25% capacity and indoor barbershops and hair salons.

San Diego County amended its health order to follow state guidelines for face coverings and allows the opening of indoor businesses for tier 2 of State’s new blueprint model, allowing indoor operations for gyms and fitness centers, dining, personal services, barbershops and hair salons.

San Luis Obispo County indoor barbershops and hair salons may reopen.

Ventura County indoor malls and barbershops and hair salons can reopen.


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 9-2-20. 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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

Campaigning for Office

Aug 31, 2020 0 Views 0 Comments

Candidate Statements. Our HOA will not allow candidate statements. How do we know what their qualifications are and who to vote for? -Ron B.

RESPONSE: A nominee must have a reasonable opportunity to communicate to the members the nominee's qualifications and the reasons for the nominee's candidacy. (Corp. Code §7522(c).) However, if the board allows candidates to advocate a point of view using the association's media, equal access must be given to any member advocating a different point of view. (Civ. Code §5105.) At a minimum, boards should allow candidate bios and pictures so members have some idea who they are voting for. Doing so does not fall into the category of advocacy.

Membership List. Can I use a membership list to mail letters campaigning for candidates for the annual election? -John E.

RESPONSE: Yes you can. You have the right to request a copy of the membership list (Civ. Code §5200 and §5205) if it's for a proper purpose (Civ. Code §5225). Communicating with the membership to urge them to vote for particular candidates is a proper purpose. In addition, you can circulate flyers urging members to vote for or against anything on the ballot. (Civ. Code §4515(b)(5).)


Contentious Political Season. During these unprecedented times, signs are being displayed at the risk of graffiti and other vandalism. Is it appropriate for board to ask people not to put up anything for everyone's safety? -Mimica N.

RESPONSE: I understand your concerns. We've seen non-stop rioting in some badly run cities around the country. In one instance it spilled over into a gated community when a mob smashed the association's gate. This is going to be a contentious political season and very likely there will be graffiti and vandalism. You can always ask people not to display signs but you can't prohibit signs if they are properly constructed, sized and displayed. I expect we will see a fair number of them this year. 

QUESTION: If our HOA president takes a salary or doesn't pay monthly dues, who must he disclose it to? To all homeowners or just the board? -Gary G.

RESPONSE: The Davis-Stirling Act protects volunteers from personal liability. (Civ. Code §5800.) If a director takes a salary or his/her assessments are waived, the director ceases to be a volunteer. The director becomes a "professional" director and loses the liability protections afforded to volunteers. Getting paid could also violate the association's governing documents. Your president should disclose the arrangement to the board and record it in the minutes so it's disclosed to the membership. If the Board is smart, it will rescind the arrangement.

An Owner-Manager. Is there a conflict with having an owner as a manager? This owner is trying to recall the current board and install a whole new board with no experience and would appoint himself as manager. -Dan T.

RESPONSE: There are potential conflicts and the arrangement is fraught with problems. It's harder to fire a neighbor/manager than an independent third party. Moreover, the homeowner will not have the insurance that a management company carries. And, when fired, the ex-manager does not go away because he/she lives in the development. Finally, the ex-manager can launch a recall because he/she is a member of the association. I've seen it happen in other associations and now it's happening to you. I always tell boards not to hire a homeowner to manage their association. Some ignore my advice and hire the owner anyway. They always come to regret the decision.

Nonessential Management. Are management companies considered essential services? Can they shut down and claim they are not essential? -Cat W.

RESPONSE: Yes, they are essential. If your management company has declared itself nonessential and has shut down, you should let them go and get a management company that is still operating.

Finding Good Management: What steps do you recommend in finding management firms? Also, does ADAMS | STIRLING provide HOA management services? -Navi G.

RESPONSE: We don't provide management services since it would create significant conflicts of interest. Boards should never hire a management company with an in-house attorney that offers legal representation to the associations they manage. Boards should only accept truly independent legal counsel.

As for management companies, you want one that places a premium on training their managers. If their managers are all certified (or working on certification) through CAI or CACM, you will be in better hands than a management company with no certified managers. See Designations and Certifications. Ask how long they've been in business since nothing can match the wisdom that comes with years of experience. Ask about insurance — what do they have and at what limits? Finally, take a look at the financial statements they generate for their associations. It's really important that you can read and understand them. Otherwise, they have no value to you.

Lender Foreclosures. As I have always understood, lenders who obtain title to a unit through deed in lieu of foreclosure are responsible for no more than 6 months of assessments. We have received differing information — that if a lender receives title through deed in lieu they are liable for all previous owners assessments, and none if obtained through foreclosure. Can you please clarify which is true? -Amy G.

ANSWER: A lender who takes title through a deed in lieu is not responsible for any past dues UNLESS there is an assessment lien recorded at the time of the transfer to the lender, in which case the lender takes title subject to ALL dues secured by the lien.

HARMFUL LEGISLATION

AB 3182 limits your association’s ability to restrict rentals. The legislative session ends on August 31 and the State Senate will likely take up AB 3182 today, so act now to protect your association. As soon as you read this, tell your Senator to OPPOSE AB 3182.  

AB 3040 allows local governments to rezone single-family residential lots to allow up to 4 primary dwellings per lot — and associations cannot prohibit construction of three additional dwellings per lot. This would negatively impact property values and significantly increase the load on amenities, sewer, water and parking. Moreover, it's unclear whether associations could increase assessments on lots that added extra houses. The bill is truly moronic. Fortunately, it stalled in the Senate.


Governor Newsom issued a color coded system for reopening businesses. Starting Monday, some businesses will be able open indoors even if on the watch list, such as hair salons and barber shops next week.

The State released Guidance for Small Supervised Groups of Children on August 25, 2020.

As of August 27, 2020, there were 34 Counties on the Monitoring List: 8/27/20 Monitoring List. All Counties on the Monitoring List are noted with an *.

The State issued the following new guidance: Guidance on Returning to Work or School Following COVID-19 Diagnosis; Guidance for Small Cohorts/Groups of Children and Youth; COVID-19 Case and Contact Management Within Child Care Facilities


NorCal Counties. A Butte County press release announced that there has been a spike in cases among college-aged persons, many in an apartment complex. The press release urged those in multi-unit housing complexes to wear face coverings in common areas.

Contra Costa County has a new Order dated August 26, which is effective August 28. The new Order allows for outdoor operation of personal care services that do not involve close contact with the face, outdoor gyms and fitness centers, hotels and short-term rentals may open for personal or recreational travel. Contra Costa also issued a press release indicating leveling in transmission.

Mono County has a new press release indicating that they have been removed from the Monitoring List but that indoor business operations must remain closed at this time. Mono County anticipates an update from Governor Newsom on this point shortly. Mono County Press Release dated 8/24/20 re Mono County no longer on monitoring list.


Tehama County has a press release dated August 26, 2020. The press release discusses what businesses must be closed as a result of being on the monitoring list.

SoCal Counties. Imperial County was granted a variance by the State to begin reopening businesses and issued an amended health order to follow state guidelines for businesses to reopen.

Los Angeles County revised what’s open in Los Angeles.

Santa Barbara County closed their beaches during the Labor Day weekend (9/4–9/7) for non-exercise activity such as sunbathing, sitting, standing, picnicking, sightseeing. Watersport activity, walking, jogging, and cycling are OK.


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 8-27-20. The chart is also posted on our website.


Insurance Claims. I have one area of concern or possible disagreement. As a unit owner is an insured, the Department of Insurance respects their right to submit a claim WITHOUT BOARD APPROVAL. Accordingly, I do not agree that the board (the trustee) of the policy has the right to deny or withdraw a claim already submitted by the unit owner, thus denying an insured their right to make a claim. -Glenn Robinson, Senior Vice President, Armstrong/Robitaille

Pool Correction. CAI’s respondents in California in June reported that only 34% of pools were closed! 13% were opening soon, and 36% were open for use. So of course we are nearly 2 months after the survey and that pool open percentage in California has only grown larger. That 7% number is the nationwide percent of pools that *did open on time.* An additional 37% of pools are open; they just didn't open on time. Only 40% of pools were responded to be closed nationwide. Here is a link to their report. -Mike M.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

Managing Insurance Claims

Aug 24, 2020 0 Views 0 Comments

Insurance is a mystery to most board members and managers. What is covered and what is not? Who can submit claims? What causes premiums to rise?

Recently, a question was asked about a broker's duty to submit claims. What happens if a homeowner suffers property damage from a flood and wants to file a claim against the association's insurance but the board is opposed to filing the claim?

I posed the question to four leaders in the field of HOA insurance: Clifford Treese, President of Association Data, Inc.; Tim Cline of the Cline Agency (representing a number of major carriers); Joel Meskin with McGowan Insurance; and Michael Berg of the Berg Insurance Agency (representing Farmers Insurance). The question generated a great deal of information from the four. I synthesized and edited down their responses.

Owner Submits a Claim. Most CC&Rs make unit owners an insured under the association's commercial general liability (CGL) policy, which means they can file a claim against the association's policy. If a unit owner contacts the association's agent/broker, the representative is obligated to inform the carrier.

Upon receiving notice of claim, every licensee or claims agent shall immediately transmit notice of claim to the insurer. (Calif. Code of Regulations, Title 10, Chapter 5, Subchapter 7.5(d).)

The carrier then makes a determination if the loss is covered and, if so, appoints an adjuster to set an appropriate value for the loss.

Association Withdraws the Claim. Because the board of directors is the "insurance trustee," it has the option of withdrawing a claim submitted by an owner. If the loss is small and the deductible large, the board can exercise its business judgment to handle the matter internally. Doing so preserves the association's loss history, which helps keep premiums down.

A Claim is not Submitted. If a manager or board member calls the association's insurance broker about a loss and asks about coverage and how the claim would affect premiums if it were filed, is the broker obligated to notify the carrier of the loss even though the board is not submitting a claim? No.

"Notice of claim" means any written or oral notification to an insurer or its agent that reasonably apprises the insurer that the claimant wishes to make a claim against a policy... For purposes of these regulations, the term "notice of claim" shall not include any written or oral communication provided by an insured or principal solely for informational or incident reporting purposes. (Code of Regs, Subchapter 7.5(n).)

As noted above, the board of directors can manage claims made against the policy. If it has a $10,000 deductible and a unit owner suffers a $3,000 loss, submitting a claim to the carrier offers no benefit to the unit owner and creates a record of a loss. If numerous small claims are filed over the policy period, the carrier could raise premiums or not renew the policy even if no monies are paid out by the carrier.

Later Submission. If the initial $3,000 loss slowly expands into a much larger claim, the board could submit a late claim. There are two potential problems. The first is that any litigation expenses incurred by the association prior to their submission of the claim will not be covered. The second is a potential denial of the claim because notice was not timely given to the carrier.

RECOMMENDATION: Boards should coordinate loss claims with legal counsel and their insurance broker. Putting their agent on notice of a potential claim while they investigate small losses makes sense but, at some point, the board must timely make a decision to either settle the claim internally or give notice to the carrier. If the association is experiencing numerous small water loss claims, it may indicate a larger maintenance issue that needs to be addressed. Deferring maintenance is not a solution. Boards should immediately address the problem before small losses turn into large ones.

Many thanks to Cliff Treese, Tim Cline, Joel Meskin and Michael Berg for their input. If there are any errors in the above summary, they are solely mine. For additional information on when and how claims should be made, see "Tendering Claims."

MISCELLANEOUS
ISSUES


Pools and ADA. People with their disabled spouses use the pool for physical therapy. Is shutting down the pool a violation of ADA accommodations? Could the HOA make the pool accessible to members with a doctor's note or does this have to evolve into a lawsuit??? -Wendy L.

RESPONSE: Most associations in California have kept their facilities closed because they cannot meet the strict requirements imposed by the Governor. Opening facilities without meeting those requirements creates potential liability for the association. According to a survey by the Community Associations Institute, only 7% of HOAs have opened their pools. No one is happy with the current situation. You should direct your frustrations toward the Governor and your legislators.

Solar Panels. We are interested in installing a solar system for the community. The system would not cost us any monies up-front or monthly costs. Our solar committee distributed an unofficial vote whether owners favored the installation and received 114 yes and 2 no votes. Our board is concerned that this unofficial vote violates SB 323 and would make the association liable to legal action. -Roger E.

RESPONSE: The circumstances you described do not require a membership vote. As required by Civil Code §5100(a), the following matters must be voted by secret ballot:

  • special assessments over 5% (see exceptions) or regular assessments over 20% (Civ. Code §5605),
  • election and removal of directors,
  • amendments to the governing documents (see exception), and
  • grant of exclusive use of common area property (see exceptions).

Because the solar panels do not fall into any of these categories, a non-binding, non-secret poll of the members is acceptable.

Elevated Structures. SB 326 states "exterior elevated elements” must be inspected. Our development has many balconies that do not extend beyond the exterior wall. Do these balconies have to be inspected if they do not extend beyond the exterior wall? -David G.

RESPONSE: Even if the balcony itself can't fall to the ground, it's railings may be covered by the statute:

“Load-bearing components” 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 elevated 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).)

You should have them inspected and included in your reserve study. Safety rails have a limited life and will need to be replaced at some point.


NorCal Counties. Alameda County has a new order that allows for a number of additional activities: small gatherings of those outside the same household outdoors; childcare for all children; educational institutions to offer career internship and pathways programs; libraries can offer curbside pickup; utilizes a site specific Protection Plan; allows some businesses with limited person to person contact to resume; allows outdoor religious services and cultural ceremonies; allows outdoor political rallies and protests; allows outdoor dining; allows outdoor non-contact fitness classes; allows outdoor museums, historical sites and publicly accessible gardens to open; allows dog parks to open subject to conditions; allows school and college sports teams to train or hold non-contact practices, conditioning, or drills outdoors; allows professional sports teams to resume practices, games, and tournaments without fan attendance.

Unstaffed pools must create a reservation/sign-up system and staffed pools must implement capacity and lane limits. Face coverings must be work when not swimming. Hot tubs, saunas and steam rooms must remain closed. Indoor pools are closed except if part of a healthcare operation or a personal pool used only by those of the same household.

Butte County has resources related to school reopening waivers.

Calaveras County has been removed from the State's Monitoring List. Pursuant to their August 20 press release file. Places that offer tattoos, piercings and electrolysis may not be operated outdoors and must close. Schools that have not yet started the school year will continue to conduct distance learning only until Calaveras County remains off the County Monitoring List for 14 consecutive days. Schools that have already started the school year will not be required to move to distance learning educational delivery only.

Contra Costa County has begun accepting waivers from elementary schools to allow in person classrooms. The waiver checklist is here. They have also noted that live music is not permitted at outdoor dining establishments or wineries:

El Dorado County's website providing guidance for HOA pools links to the State's fitness center guidance.

Marin County is reopening local hotels, motels, and short term rentals for tourism based business and clients.

Mendocino County has a Health Order dated August 14 that will be effective through September 11. The new Order reduces the number of persons from 100 to 50 that may attend outdoor faith or cultural ceremonies, funerals or weddings or protests. The Order updates the definition of Children's Extracurricular Activity Unit to a stable group of 12.

Mono County has a new order related to the isolation period for those suspected to have COVID-19 dated August 14, 2020:

Sacramento County has Health Order shutting down all public and private schools in Sacramento County for in person learning:  The order makes it clear that doing so under the guise of day care, child care etc. is not permissible. There are a few exceptions that allow students to be on campus which are identified in the order.

San Mateo County has released their application and review process for elementary schools to apply for waiver to allow in person learning.

Santa Clara County has an ordinance date 8/13 allowing for enforcement of Health Orders.

Santa Cruz County indicated that they have been removed from the State's Monitoring List effective August 14. Beaches in the unincorporated area of Santa Cruz County will be closed September 5 at 5 a.m. through Monday, Sept. 7th at 5 p.m. Beach crossings would be permissible to access the ocean for the purposes of activities such as surfing, paddle-boarding, boogie-boarding, swimming, snorkeling and kayaking. Beaches will remain open for public use on Saturday, Sept. 5, and Sunday, Sept. 6, between the hours of 4 p.m.-8 p.m. each day. Jurisdictions throughout Monterey Bay are expected to have same or similar beach restrictions in place.

Tulare County issued a press release August 21 indicating that they were aware some schools were opening under the "day camp" guidelines. While Tulare indicates that they do not have the authority to allow or disallow this, they discourage it and have contacted local schools who are utilizing this model.

SoCal Counties. Los Angeles County update to shared residential pool protocols and campground and RV parks protocols, only outdoor pools can be open; indoor pools remain closed.

Riverside County elementary schools can apply for an in-person instruction waiver starting on 8/24.

San Diego County revised its health order effective 8/22, requiring temperature screenings of employees at all essential and reopened businesses, and not allowing anyone to enter the workplace with a temperature above 100. Also allows schools to follow state industry guidelines.

Santa Barbara County issued an order on 8/20 to continue the use of face coverings in high risk situations, which expires on 9/18.

City of San Diego issued an executive order for Department of Recreation and Parks to issue permits to faith based organizations, gyms, fitness facilities, and personal trainers to hold activities at city parks.


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 8-22-20. 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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

No Safe Place to Play

Aug 13, 2020 0 Views 0 Comments

QUESTION: Our children have no where to play! Seven months of lock down, our pool is closed due to the virus, they can't play in the park, and now no school. Is their a law that condominiums must have a safe place for children to play? -Betty Y

RESPONSE: No, there is no law requiring condominiums provide a place for children to play. You can't blame your board for keeping your pool closed. The governor has everyone in a straight jacket with requirements that most associations cannot meet.

Board members are just as frustrated as parents. Instead of allowing counties and cities to regulate themselves, the Governor decided that one size fits all. As a result, families like yours are suffering. His decision to keep businesses and schools closed is also affecting association budgets by forcing people out of work so they can't pay their assessments. Let's hope this ends soon.

RECOMMENDATION: Email the governor and your legislators and let them know how frustrated you are. Tell them you intend to vote in November. I don't know if it will do any good but it couldn't hurt.


Wedding. One of our unit owners wants to hold a wedding reception in our recreation room. The president is inclined to approve their using the room for the wedding. They say there will be no more than 10 people in the room at any given time. Says she will get a release from the unit owner holding the board harmless. I was told we cannot have any gathering OF ANY SIZE per Glendale/Los Angeles/Gov. Newsom guidelines. I intend to deny the request. -Margaret N.

RESPONSE: If they call the wedding a "protest," you're good to go--there are no limits on the size of the gathering or requirements for wearing masks. Otherwise, you should consult your association's legal counsel on how to proceed.


Working Board Meetings. Love your newsletter. I have been reading it for the past 20 years and this is the best and funniest information. Can you have "working" board meetings and exclude homeowners? Just unable to find this term in the Davis-Stirling Act. -Voss J.

RESPONSE: You can have working board meetings but you can't exclude homeowners. Board meetings are defined by the Davis-Stirling Act as a gathering of a quorum of directors at the same time and place to "hear, discuss, or deliberate upon any item of business that is within the authority of the board." (Civ. Code §4090.)

Notice. You can set a time for working meetings that is convenient to board members and then post a 4-day notice. I had one board that held working meetings at 7:30 in the morning so directors could get business done before going to work. I attended some of their meetings and found them to be very effective since directors had a hard deadline for ending their meetings so they could go to work.

Open Forum. Since it's a board meeting, albeit a working one, you still need an open forum where members can address the board. Once open forum is closed, members can observe but they can't participate unless the board invites their comments.

Virtual Meetings. In addition to in-person meetings, all of this applies to virtual meetings, i.e., those held entirely via teleconference or video conference.


Email Board Meetings. Thank you for your newsletters during these trying times. The information is very helpful. Our manager told the board that they can discuss business via email by responding to emails only to her and she will recap the responses in an email back to them. Is this legal? -Anon

RESPONSE: What you described is a serial meeting known as a "wheel-hub" meeting, which occurs when directors are spokes with one person at the center (the hub). Directors never talk to each other. Instead, each communicates with one director or the manager who coordinates and relays messages. Although not addressed by the Davis-Stirling Act, it is covered by the Brown Act, which is the model for our Open Meeting Act. Accordingly, I believe a judge would find this to be in violation.

RECOMMENDATION: I know it's inconvenient but your board needs to save their discussions for properly noticed open meetings.


Voice Votes. Our board is meeting via Zoom because of the pandemic. Board members do not want their video on so they say their name when voting. Is there anything wrong with this? -Don W.

RESPONSE: No, there is nothing wrong with it. It's no different than voice votes in a teleconference meeting. As long as directors can identify each other's voice, their votes are good.

Non-Owner President. Our HOA is grateful for the information provided in your newsletters. Our president is not the true owner if her unit, her mother is. Is she still eligible to serve on the board? -Margrit K.

RESPONSE: SB 323, which was sponsored by Marjorie Murray's Center for California Homeowner Association Law (CCHAL), made your president a second-class citizen. She can no longer serve on the board, even if she is doing a great job and no one else is willing to serve.

This is particularly damaging to small associations which have a limited pool of people available to serve on their boards. I would like to see this dreadful piece of legislation rescinded. Unfortunately, because of the pandemic, nothing will happen this year. We will have to wait until next year to take a fire extinguisher to the dumpster fire known as SB 323.

NOTE: If your bylaws allow non-members to serve as officers (president, secretary, treasurer), your current president must step off the board but can continue to serve as a non-voting president to run your meetings. That is little consolation if what you really need are board members.

Inspectors of Election. Regarding Inspectors of Election and the added burden on small associations, is there a way local, small associations can offer other associations to serve as inspectors of the opposite association’s elections and vice versa? How would one go about finding them? -Karen T.

RESPONSE: This is another burden created by SB 323. The bill significantly increased the responsibilities of inspectors and increased the election timeline so it's now a four-month process. As a result, it's difficult to find volunteers willing to take on that role. Most associations must now pay for professional inspectors to run their elections. Since all associations are nonprofit, they don't have any excess funds to hire professional inspectors. For small associations in particular, that means an increase in assessments.

RECOMMENDATION: If you can find another association willing to act as your inspector at no cost, give it a try. I don't know how you find them except to talk to neighbors in nearby associations. FYI, you should expect to execute a hold harmless/indemnity agreement due to the higher risk of litigation created by SB 323.

 
Partners Adrian Adams and Nathan McGuire will both be participating in CAI's annual Legal Forum, which will take place virtually this year September 14 to 18.
 
Adrian Adams and co-presenter Christina DeJardin (the Delphi Law Group) will speak on the four targets of harassment that association boards and managers are required to address.
 
Nathan McGuire will be involved in the Closing General Session with Legislative Advocate Louie Brown and CAI's Senior Vice President of Government & Public Affairs Dawn Bauman. If you would like to attend, you can REGISTER HERE.


NorCal Counties. Because of the backlog in the State’s electronic laboratory reporting system, counties are not being added or removed from the monitoring list at this time.

Many counties have linked to the CDPH’s guidance for Institutions of Higher Education.

Marin County amended Appendix C-1 and is allowing the following to operate outdoors: nail salons, massage therapy, esthetic services, cosmetology and skin care services, gyms and fitness centers. Tattooing, piercing and electrolysis must remain closed both indoor and outdoor.

Mono County has a new order for lodging restrictions in Mammoth Lakes which relates to short-term rentals as well as hotels. This is designed to limit occupancy, reinforce state-mandated cleaning procedures and impose a visitor notification required.

San Joaquin County has an new order related to Youth Sports.

Shasta County issued a press release regarding the reopening of schools which has been added to the chart.

Sonoma County has an ordinance authorizing enforcement of COVID-19 health orders that allows for fines for violations.

Tulare County issued a press release that it will not approve school waivers until transmission rates decline.


SoCal Counties. Los Angeles County updated its health order which clarifies when elementary schools can seek a waiver for in-person instruction in elementary schools. Also updates childcare facilities can increase from 10 children to 12 children as a stable daily group of children.

The County issued a new multi-residence guideline which includes guidance on outdoor barbeque grills in common areas which can remain open as long as individuals use face coverings with exception when eating and residents maintain physical distancing from those who are not part of their household.

It also updated golf course protocols which clarified that driving range mat centerlines can be 8 feet apart as long as areas for left-handed players are grouped together and separated from those for right-handed players by at least 12 feet.

It further updated fitness center protocols stating that face coverings are not required while engaged in outdoor activities requiring heavy exertion, but at least 8 feet of distance from others are required during these activities.

The City of Los Angeles changed its order removing enforcement of Covid-19 protocols by way of having the Los Angeles Department of Water and Power shut off water for non-compliant businesses.

San Diego County now requires employers provide notice of exposure to any employees, and contractors (who regularly work at the workplace), who may have been exposed to Covid-19, as stated in the State’s COVID-19 Employer Playbook for a Safe Reopening.

Santa Barbara County issued a new order effective August 12, 2020 that expires on September 10, 2020 prohibiting small and large gatherings of different households. Further acknowledges youth sports can resume pursuant to state guidelines.


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 8-13-20. The chart is also posted on our website.


Thanks for your newsletter. I am an ardent fan of it and echo all the accolades written by readers. I don't believe I have ever disagreed with anything you have published. -Bob B.

Good morning WONDERFUL Mr. Adams!!!! Please, don't apologize to that person calling you "insensitive", you're obviously not. Some people are just myopic, looking for something to complain about. You, and your service, are wonderful. -Les Q.

Thank you, Adrian, for somehow maintaining your wonderful sense of humor in these most trying times! It provides a break from my so-far five-months of troglodyte-like isolation. -Elaine J.

Thank you for all the great advice. Been a reader for (numerous) years. -D.Y.

I would like to know who has all those Trump signs. I would like to have one for my yard. I am waiting for a NO ON PROP 15 sign, as that proposition will take away Prop 13. -Stella J.

Hello, Adrian, Your sense of humor is so uplifting in this world, your comment about the cigar smoke was shared with all my office workers. Way too many people are so super sensitive they’ll never see the bright side of life. PITY! -Roberta R.

Thanks for the newsletter and good humor. I do look forward to my email knowing there might be something from you and your offices. You have proven more valuable to non-clients than any other attorney I know. Keep up the good work and good fight! -Karen T.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

Trump Signs in the Yard!

Aug 7, 2020 0 Views 0 Comments

My HOA allows political signs to be posted in front yards. Some people have overdone it and there are 12 trump signs in a front yard. Not only is this disturbing, but it looks awful. Can we contact the owner and ask that they be removed? The HOA claims they have no control because of the Davis-Stirling Act. Is this true? -Anita S.

RESPONSE: Brace yourself, it's only going to get worse. Trump signs, Biden signs, Black Lives Matter signs. We are less than three months from a national election and the craziness has already started.
Unlike the coronavirus--there is no medical treatment and no vaccine in development.

Fliers, Signs and Altercations. Fliers will be slid under doors and taped to laundry room walls and elevators, then torn down and replaced with opposing fliers, then torn down again. Signs and flags will appear in windows, on balconies and in yards. Yard signs will be defaced and stolen. There will be graffiti on walls and sidewalks. There will be shouting matches and physical altercations.

Political Rallies. In addition, there could be political rallies in the common areas.  Effective January 1, 2018, associations cannot prohibit residents from assembling in the common areas for purposes related to elections to public office. (Civ. Code §4515(b)(1)) That includes hosting public officials and candidates to speak or raise funds. (Civ. Code §4515(b)(2).) Moreover, members cannot be charged a fee or required to make a deposit, buy insurance, or pay premiums or deductibles on the associations’ insurance when using the common areas. (Civ. Code §4515(b)(3); (c).)

Time Periods for Signage. Even though associations cannot prohibit noncommercial signs (Civ. Code §4710), they can establish reasonable time periods for political signage. In mobilehome residency law (regulating subdivisions, cooperatives and condominiums), a political sign "may not be displayed in excess of a period of time from 90 days prior to an election to 15 days following the election, unless a local ordinance... imposes a more restrictive period of time for the display of such a sign." (Civ. Code §799.10.)

Various appellate cases have likened associations to landlords and owners to tenants. By statute, "A tenant shall post and remove political signs in compliance with the time limits set by the ordinance for the jurisdiction where the premises are located... If no local ordinance exists or if the local ordinance does not include a time limit for posting and removing political signs on private property, the landlord may establish a reasonable time period for the posting and removal of political signs. A reasonable time period for this purpose shall begin at least 90 days prior to the date of the election or vote to which the sign relates and end at least 15 days following the date of the election or vote." (Civ. Code §1940.4(d).)

Limiting Number of Signs. Associations can also set reasonable limits on the number of signs. In an HOA case that dealt with real estate signs, the court concluded "to protect all owners it may impose reasonable restrictions for aesthetic purposes.... Moreover, we see no problem with allowing only one sign per unit, or requiring that signs be removed within three days of a lease or sale." (Fourth La Costa v. Seith.) When it comes to political signs, one sign might be too restrictive but maybe not. It will depend on what a court deems "reasonable."

RECOMMENDATION: Associations cannot escape being pulled into the fray. There will be demands on boards to do something about signage, rallies and altercations. It's going to be a mess. Boards should adopt reasonable rules for distributing fliers, restricting signage in the common areas, and regulating the size, number, and time periods for displaying signs in or on separate interests.

For assemblies, guidelines should establish times and locations, noise levels, duration, and scheduling priorities. Penalties need to be adopted for violations. Call us if you need to adopt rules for political signage and rallies.

NO DISCLOSURE OF
EMPLOYEES WITH COVID-19


California's Department Fair Employment and Housing (DFEH) issued a Bulletin Dated July 24, 2020 on employment discrimination during the pandemic. The DFEH prohibits employers from disclosing the names of employees who test positive for the coronavirus. Page 4 of the bulletin states:

What information may an employer reveal if an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has the virus?

Employers should not identify any such employees by name in the workplace to ensure compliance with privacy laws. If an employee tests positive for or is suspected to have COVID-19, the employer will need to follow the most current local, state, or federal public health recommendations. Employers should take further steps at the direction of public health authorities that may include closing the worksite, deep cleaning, and permitting or requiring telework.

Employers may notify affected employees in a way that does not reveal the personal health-related information of an employee. For example, the employer could speak with employees or send an email or other written communication stating: “[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”

Employers may not confirm the health status of employees or communicate about employees’ health.

RECOMMENDATION: Boards should work with legal counsel on any messaging to the membership about the coronavirus.


NorCal Counties. The California Department of Public Health issued guidelines on Youth Sports and Elementary School Waivers.

Contra Costa County has new School and Childcare Guidance and a new Mass Isolation Order. Marin County extended their Eviction Moratorium.

Mendocino County has a new order capping permissible outdoor gatherings (including worship/religious services, funerals and memorials and protests) to a maximum of 100 people.

Mono County has a new order which clarifies that gatherings of persons from different households except for gatherings specifically allowed (religious, cultural gatherings and political protests) are prohibited, and wedding ceremonies are limited to 30 persons and receptions and other parties related to the wedding ceremony are prohibited: Mono County Order re Gatherings and Weddings.

Monterey County has approved an ordinance imposing Fines for Face Covering Violations.

Santa Cruz County adopted a new health ordinance for violations of the health orders allowing for fines and jail time.

SoCal Counties. Riverside County: youth sports can resume with social distancing and a stable cohort such as a class or a team--no competition, event or tournament is permitted at this time. The City of Palm Springs issued a modified order for the closure of bars at restaurants to 12 a.m. instead of 11 p.m.

Los Angeles County updated its tennis/pickleball court protocols, including face coverings at all times, except while playing, eating or drinking, and symptom checks before entry (in-person, online, or through signage). The City of Los Angeles updated its order to allow outdoor operations of fitness centers, hair salons, museums and zoos. Also removed allowance for in-person indoor protests and instead provides for in-person protests outdoors.

San Diego County added employer requirements to promptly notify the County Department of Public Health if there is an employee diagnosed with Covid-19 by providing their name, date of birth, and contact information. If three or more cases occur at an employer within a span of 14 days, the employer must provide notice of exposure to the employees, customers or any other persons who may have been exposed to Covid-19 at the workplace. The County strongly recommends providing the same notice if at least one employee is diagnosed with Covid-19.

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 8-5-20. The chart is also posted on our website.


ADA access….that is so GREAT….2 thumbs UP for being on top of this issue….!! - Doug R.

Wow, the ADA website is what I'd call "Client-Centered." Thank you! -Deborrah E.

Your response to the inquiry regarding smoking in a non-smoking condo complex was HIGHLY offensive...your recommendation to gift a box of cigars extremely insensitive, unprofessional and plain unacceptable. You owe readers an apology. -Pam V.

RESPONSE: I don't know what came over me. the Artificial Intelligence we installed on our website must have taken over.

I needed a laugh for the day. Thank you! -Carol H.

Mr. Adams, thank you so much for your informative newsletters regarding HOA rules and regs affected by state law. I am a past board member but keep up with changes which affect our association. -Emma M.

Thanks for the exceptionally valuable newsletters. -Keith F.

You write great articles and I enjoy reading all your work. -David C.

Adrian, I'm sure that you know that Senator Wieckowski is the  knucklehead who authored SB 323. This guy is either on someone's payroll or a complete idiot, or both. Is there a way to educate the HOA community about him and his cohorts and sponsors? There should be a coordinated effort to vote this guy out of office. If not, what's next? -Julian M.


RESPONSE: Senator Wieckowski and Marjorie Murray were thick as thieves on the dumpster fire known as SB 323. To defeat bad legislation, readers need to follow CAI's California Legislative Action Committee (CLAC) for alerts on bad legislation and how to stop it. Everyone should subscribe to their newsletter

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

A Box of Cigars

Aug 1, 2020 0 Views 0 Comments

QUESTION: I live in a no smoking complex. It is also against a city ordinance for people to smoke in condo complexes. My next door neighbor, a renter, smokes cigarettes, marijuana and vapes. I reported her as did her upstairs neighbor. The owner came out and claimed he couldn't smell anything. This is the 3rd smoker he has had in this unit. What can I do? -Alyson R.

RESPONSE: If your neighbor smokes cigarettes, marijuana and vapes, she is not long for this world. You might send her a box of cigars to help things along. In addition, have a lawyer send a demand letter to the city, your board of directors and the landlord. That should start the wheels turning.

AB 3182
RENT RESTRICTIONS
 

A number of readers had questions about a bill I discussed in our last newsletter. I raised the alarm about Assembly Bill 3182 because it voids provisions in CC&Rs and Rules that prohibit or unreasonably restrict rentals.

Rent Restrictions Voided. The bill defines what it deems reasonable. Common interest developments cannot have a rental cap lower than 25%. That means associations with smaller caps, such as 10%, 15% and 20% (which are common), will be voided. When it comes to leases, the bill will allow associations to adopt minimum leases of 30 days. It makes no allowance for associations that require leases of at least six months or one year (which are common) or requirements that a buyer live in their unit for a year (some require two years) before renting their unit.

Gov Docs Must be Amended.
Since existing provisions that do not comply with the bill will be voided, associations will be left with no rental restrictions if they don't amend their documents to adopt compliant language. Especially vulnerable will be those associations with lease requirements greater than 30 days. Once the restriction is voided, they will be open to short-term vacation rentals. With a constant flow or weekend rentals, communities will suffer all the problems associated with transient hotel-like operations.

Expensive Amendments. Losing existing restrictions creates a significant burden on associations. It is extremely difficult to amend CC&Rs. Moreover, many associations cannot afford the expense right now. They have already incurred unbudgeted expenses amending their election rules to comply with SB 323, followed by legal expenses adopting emergency rules related to the coronavirus, followed by climbing delinquencies due to members being out of work due to lock down orders.

Flawed Premise. The premise of the bill is flawed. Turning someone’s home into a rental doesn’t increase the housing supply or make housing more affordable or cure the homeless problem.

Instead, it destabilizes community associations as the percentage of rentals steadily increases. California already has the second lowest home ownership rate in the country at 54.8% (US Census 2018). The bill doesn’t increase the amount of housing, it only depletes existing housing stock available for purchase by encouraging large scale investors to buy up homes and turn them into rentals. The end result will be lower property values. 

Homebuyers Impacted. Finally, the author of the bill seems to recognize that higher rentals negatively impact home buyers' ability to get FHA and VA loans. He added language stating that associations can facilitate buyers to qualify for loans insurance. That is a fairly meaningless provision. If they can't qualify because of high rentals, nothing the association does will facilitate qualifying for the loan. As a result, AB 3182 will make it more difficult for first-time home buyers, seniors and veterans to purchase condominiums.

RECOMMENDATION: CONTACT THE SENATE HOUSING COMMITTEE BEFORE AUGUST 6! Send an email to each of the listed legislators. All you need is a simple one line "Vote NO on AB 3182" in your email to each of the following Senators:

[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

IS NOW ADA ACCESSIBLE
 
Davis-Stirling.com is already the top research website of its kind in the nation. We are pleased to announce that we made it even better--it's now ADA compliant.
 
With the upgrade we just completed, the website is accessible to users with blindness, epilepsy, blurred vision, color blindness, cognitive disorders, cataracts, and more.

 

When you go to Davis-Stirling.com, you will find an handicap symbol in the lower right corner of the screen. Click on it and a menu will open which allows you to set profiles that immediately change the screen to accommodate various disabilities. You can change colors, cursors, fonts, contrast, and create a virtual keyboard. In addition, the blind can more easily use screen readers such as JAWS and NVDA.
 

To keep everything fresh and accessible, artificial intelligence (AI) runs in the background to optimize accessibility of the website every 24 hours. Our team at ADAMS|STIRLING is proud of it. We think you will like it. Try it out and give us your feedback.


Everyone, because the chart is large, and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on your keyboard and then scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel.

NorCal Counties. There are 35 Counties on the monitoring list as of July 27, Butte, Kern, Mendocino and Santa Cruz were added.

The state issued an Employer Playbook for a Safe Reopening.

Mendocino County has a press release from 7/25 stating they are on the monitoring list, although the State has not posted that yet.

Santa Cruz has a press release from 7/27 stating that they are on the monitoring list, although the state has not posted that yet.

Shasta County is urging the public to avoid Waterworks Park which has refused to shut down until August 3.

SoCal Counties. Imperial County has two new orders regarding isolation of those individuals who test positive for Covid-19. One is order is for non-immunocompromised which follows CDC guidelines after 10 days from first symptoms can return out of isolation within 24 hours of a fever. The second order is for immunocompromised who need to wait 20 days from first symptoms and can return out of isolation within 24 hours of a fever.

Los Angeles County has a new multi-family residence guidance, which reduce home isolation from 72 hours to 24 hours without a fever. Also Los Angeles updated its face coverings to not include masks with one-way valves.

The City of Palm Spring, enacted a supplementary order beginning July 31, 2020 that has restaurants, bars, wineries, distilleries, and breweries closing by 11 p.m., with last seating by 10 p.m.

San Luis Obispo County is asking residents to avoid social gatherings.


Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 7-28-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

AB 3182 - Rent Restrictions

Jul 26, 2020 0 Views 0 Comments


We need your help to tell the Senate Housing Committee to VOTE NO on AB 3182 (Ting) before their hearing on July 30, 2020. AB 3182 will prohibit associations from including rental or lease restrictions in their governing documents, jeopardizing the ability for associations to access financing when needed to address needed improvements and to maintain property values.

AB 3182 will also make it more difficult for first-time home buyers, seniors and veterans who need federal insured lending programs, like FHA, to purchase condominiums. Here’s what you need to know:

• Generally, rentals are not an issue in common interest developments (CIDs) and the current law is more than adequate to provide the flexibility needed for an association to address the issue locally. Rentals become a problem in a common interest development when there are too many, which leads to issues with obtaining financing, either for the common interest development or the prospective owner.

• AB 3182 will exacerbate the issue by prohibiting a common interest development from imposing a cap of less than 25 percent rentals, even if it’s necessary to obtain financing. While federal loan programs generally allow for a lower owner occupancy rate to secure financing, many private lenders require a much lower rate.

• AB 3182 will require many associations to amend their governing documents to address the change in law. This is a cost many associations cannot afford, especially while dealing with impact of COVID-19. These costs will be passed onto owners through additional assessments, which is the exact opposite of what we should be doing in California.

• Condominiums in common interest developments offer first-time home buyers an affordable way to invest in home ownership, especially in vibrant urban environments. They also provide a sense of community not always present in other communities. Condominiums are answering the call from the State when it comes to affordable housing. Unfortunately, AB 3182 will only make condos more expensive, at a time when we can least afford it.

• AB 3182 will increase housing costs, exacerbating the affordable housing crisis, by discouraging home ownership by encouraging investor buyers.

Take action by sending our sample email to the legislators listed. You can include all emails in the BCC line of the email to save time.

 
 
VIRTUAL BOARD AND
MEMBERSHIP MEETINGS


Zoom Meeting Violation? Your newsletter states Zoom meeting are permitted; however, I am concerned that Section 4925 of the California Civil Code would require ALL association members have Zoom capability. If they don't, they cannot attend the meeting and the association would be in violation of the Civil Code. -Tom S.

RESPONSE: Video capability is not required for members to participate in a video conference. They can use a smart phone, flip phone or landline to call into the meeting. It allows them to hear the meeting and participate during open forum. When it comes to different platforms, most have that capability of video and/or telephone participation. Some don't. Boards should only use video conferencing platforms that allow people without computer or smart phones (hard to believe they exist) to call into the meeting. For example, Zoom, GoToMeeting, RingCentral and GoToWebinar all have the feature. WebEx has the feature but I found it difficult to use. Other platforms have recently came on line that offer the feature. In my experience, most seem to be using Zoom, followed by GoToMeeting and GoToWebinar.


Annual Meeting Quorum. Do annual meeting attendees via Zoom count toward quorum? -A.J.

RESPONSE: If attendees have not already mailed in a ballot and attend a virtual membership meeting, they can be counted toward quorum.

The authority for virtual membership meetings is found in Corporations Code §7511(a): "Whenever members are required or permitted to take any action at a meeting, a written notice of the meeting shall... state the place, date and time of the meeting, the means of electronic transmission by and to the corporation... or electronic video screen communication, if any, by which members may participate in that meeting..."

Outrageously Expensive. Our HOA is 6 units. Four of us are on the board and the other two are disinterested. This election inspector position seems outrageously expensive for us. Is there anyway around this for a very very small HOA? Thank you! -Karen D.


RESPONSE: You can thank Marjorie Murray's organization for the increased costs and long election cycle. They sponsored SB 323 and she lobbied for it in the Capitol. As a result, associations will now spend one-third of each year conducting elections. Associations of your size are dismayed by the heavy election burdens placed on small associations. Due to the added burdens and potential liability, volunteers are increasingly difficult to find to serve as inspectors. If you can find a volunteer, you don't need to hire an inspector.

Opening Ballots. Our inspector of elections has asked for volunteers from our association to help count the ballots. Can a board member assist with the opening and counting of ballots? -Phyllis R.

RESPONSE: No. Directors and candidates are not independent third parties and are specifically excluded from opening ballots and tabulating votes. (Civil Code §5110(b).)


Resignations & Appointments. With resignations caused by election delays, and worries about meeting in-person, can a sole remaining board member appoint a new board members? Thank you for your newsletter, my wife and enjoy the levity you bring to often droll matters. -Ross S.

RESPONSE: If enough seats become vacant (through death, resignation or disqualification) such that there are not enough directors to meet quorum, the remaining directors are allowed to appoint up to three directors to fill empty seats. There are two exceptions to the power of the remaining directors to appointment replacements: (1) the bylaws do not allow for appoints and require that all seats be filled by special election of the membership; or (2) the vacancies were caused by action of the membership (a recall), rather than by death or resignation of directors.

Assuming the bylaws allow for it, the sole remaining director should give notice of a board meeting, call it to order, and appoint directors. The action is recorded in the minutes. Once the new directors are seated and quorum is met, the board can proceed with regular business if other business is noted in the meeting agenda.


QUESTION: What constitutes a quorum for board voting? If your CC&Rs state the board shall consist of 5 members but only 3 active members what is the quorum? Are the empty positions counted? -Dorethia M.

RESPONSE: Unless the articles of incorporation or bylaws state otherwise, "a majority of the number of directors authorized in the bylaws constitutes a quorum of the board for the transaction of business." (Corp. Code §7211(a)(7).) A vacancy on the board does not change the number of directors needed to make a quorum--the board needs a majority of the number authorized in the bylaws, not a majority of actual directors.


NorCal Counties. As of July 23, the following counties are on the monitoring list requiring the shutdown of bars and indoor dining: Alameda, Colusa, Contra Costa, Fresno, Glenn, Imperial, Kings, Los Angeles, Madera, Marin, Merced, Mono, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, Santa Barbara, Santa Clara, Solano, Sonoma, Stanislaus, Sutter, Tulare, Ventura, Yolo, and Yuba.

Fresno has new guidance for hair salons and barbershop and personal care services on their site: Fresno County Department of Health.

Mendocino County has updates that took effect July 24.

Mono County indicated they were on the monitoring list. Prior to this, Mono County issued a new Order with guidelines for restaurants that includes mandatory testing for some employees as well as the wearing of more protective face coverings by restaurant employees along with other restrictions. It is unclear if this will still apply given that Mono County is on the monitoring list, but at this time no new Order has been issued.

San Francisco County has new face covering rules.

SoCal Counties. The City of Los Angeles updated what’s open in Los Angeles. Updated golfing protocols for classes. Coaches and participants to social distance and wear face coverings at all times, ratio shall not exceed to 6 to 1. Coaches may not share equipment unless sanitized. Participants cannot rotate coaches during a session. Participants cannot handle range baskets or shag bags. Consecutive sessions must be staggered to sanitize and minimize gathering and cross-traffic of students. 

Riverside County is prohibiting live music events including at restaurants, bars, and wineries, as well as any event that that would bring together persons from different households. 

San Diego County updated its health order to prohibit in-person instruction for K-12 and colleges. The City of San Diego is relaxing parking rules to allow for parking lots to open for personal services, fitness centers and places of worship outdoors.

Santa Barbara County issued a comprehensive facial coverings order.


Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 7-24-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


THIS is a great and informative e-mail. Bravo! -Rachel S.

Your reply regarding why a reader hadn't received a daily newsletter was classic! Going out to see the monuments before they're all removed is the best thing that you've ever said. Keep up the good work. -Julian M.

Love your newsletter! -Warren W.

I have a 24-unit community that has had the same board president for all but one year since 1986. I think that is more than 30 years. Keep up the good work. Your newsletter is being read by more and more of my clients. -Michael H.

Thank you again for outstanding newsletters! With all the concentration over the years with ID security. I am still surprised when the pre-stamped ballot return envelope asks for our signature on the outside of it for all to see and scan. Thanks again for all that you do. -Erny P.

Regarding the length of service, this is my 35th year on the board. I spent most of them as president and the last 3 as secretary. My late father told me that when you are a homeowner, you should be involved so you know what’s going on. THANK YOU for all you do. We are just civilians and concerned homeowners. We have depended on your information, interpretations, and guidance for years. Just an unsolicited note to other associations and board members, I am glad that we engaged your firm to help us restate our CC&Rs and bylaws. Okay, that’s enough. -Gary N.

I've been on the board for 27 years. Being a sucker with spare time to do chores does that, but one year I lost. At the close of counting, people said they figured I just automatically got voted in so they cumulated votes for others they wanted to be sure were elected. One of the newly elected immediately resigned and the board appointed me to fill the term. Scary! -John W.

Unfortunately, I've been on the board for 37 years, nearly all of them as president. Remarkably my hair is still dark, but I have a lot more wrinkles. In all that time, we've only had two troublesome neighbors, and both their bad behaviors were related to mental health issues. Thanks for your great newsletter. -W.H.

A master list of signatures........that is just crazy. -Ann E.

I didn't know they even had condos 30 years ago..... -Mike S.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only

Ballot Signature Verification

Jul 20, 2020 0 Views 0 Comments

I'm curious about what is intended by "signature verification?" For the HOAs I serve, boards interpret the term to mean "verify the envelope was signed" with not much concern for who might have signed it. -Bruce B.

ANSWER: No association that I'm aware of compares signatures on envelopes against a master list of signatures. They simply verify the envelope was signed. Only if there is a challenge does signature verification become an issue, at which point the voter is contacted to verify it's their signature on the envelope. This approach does not violate the Davis-Stirling Act.

Secret Ballots. As everyone knows, secret balloting uses a double envelope system. The inner envelope and ballot are not signed. The outer envelope contains the member's address and is signed. (Civ. Code §5115(c)(1).) The address allows the inspector to check it off against the voter list so only one ballot is cast per property.

Signature Verification. When it comes to signature verification, the Act states the inspector "may" verify the member’s information and signature on the outer envelope prior to the meeting at which ballots are tabulated. (Civ. Code §5120(a).) That is the only statement regarding signature verification. There is no requirement that associations keep members' signatures on file. I suspect most members would strongly object if their association were to demand everyone's signature be kept on file in the management office.


Delegating Inspector Duties: Regarding your July 8, 2020 newsletter on inspectors of election, could you outline which of those responsibilities the inspector can delegate? -Laurie T.

RESPONSE: To help in the expeditious performance of their duties (Civ. Code §5110(d)), inspectors can delegate some tasks to assistants and/or the association's management company. Some tasks can only be delegated to independent third parties. For a list of what can be delegated and to whom, see Inspectors of Election.

Mailing Ballots: In the notice to homeowners, is it okay to have them only mail the ballot to the inspector of elections and exclude delivery to their home because of the coronavirus? -Kay F.

RESPONSE: Yes. Hand delivering ballots to a physical address is optional, not mandatory. (Civ. Code 5115(b)(1)&(c)(2).)

Candidate Statements: Can an association have a rule that those running for the board submit a candidate statement for voter consideration? Or must this be a request only? -Brenda W.

RESPONSE: It should be a request not a rule. A candidate statement is not a qualification for serving on the board of directors. Accordingly, associations cannot exclude candidates because they fail/refuse to submit a statement.


Zoom Ballot Counts: When counting ballots during a pandemic, does the remote inspector of elections have to appear on the Zoom meeting with owners? -Sue L.

RESPONSE: Assuming quorum has been met, the meeting can proceed through all the open forum and routine reports. The inspector can join the meeting when it comes time to open ballots and tabulate votes and everyone can watch. However, because that can be a lengthy process, the inspector could prerecord the opening of ballots and tallying of votes. Then, join the zoom meeting and announce the results. The recording of the ballot count can then be posted on the association's website and distributed by email to all members with a link to the video.


Changing the Election Date: The board has changed the election date from March to September! Is this allowed? -Betty Y.

RESPONSE: Within limits, boards can delay annual meetings. Boards are supposed to hold them on the date and time stated in the bylaws. (Corp. Code §7510(b).) However, there may be circumstances which cause a delay. The Corporations Code provides some flexibility by providing a time period before a remedy can be sought. According to section 7510(c) of the Corporations Code, if an association fails to hold a meeting for a period of 60 days after the date designated in the bylaws or, if no date has been designated, for a period of 15 months after its last regular meeting, a court can order a meeting be held.

Gatherings Not Allowed. As everyone is aware, the pandemic has disrupted board and annual meetings in associations around the state. Board meetings have largely adjusted by going to Zoom meetings. Annual meeting have been more difficult because of the need for an inspector of elections who must tabulate votes "in public" so "any candidate or other member of the association may witness the counting and tabulation of the votes." (Civ. Code §5120(a).)

Continued Disruption. Many boards delayed their annual meetings in the hope the pandemic would recede and they could conduct a normal annual meeting where members could gather in one place. That has not happened. With the spike in coronavirus infections and the possibility of a second "stay home" order in some counties, members cannot gather for a meeting.

Virtual Meetings. Some associations had already improvised by holding virtual annual meetings and virtual ballot counting. The inspector receives all ballots by mail at their office and then video records the opening and counting of ballots, which can be live streamed and/or posted on the association's website for all members to view.

RECOMMENDATION: It seems unlikely things will return to normal any time soon. Boards should plan on holding virtual annual meetings. They should appoint an inspector of elections, call for nominations, set a date, and proceed with holding an election. If they don't, I can see a court ordering a meeting since they can be held virtually.


Collecting Ballots: Our district delegate election will be virtual this year and the inspector of elections is in a city approximately one hour away from our HOA. Can a delegate candidate collect signed and sealed ballots from homeowners and hand-deliver them to the inspector or must they be mailed individually? -Jim K.

ANSWER: There is nothing in the Davis-Stirling Act prohibiting candidates from collecting ballots and delivering them to the inspector of elections. Check your election rules. If they are silent, check with the inspector. Inspectors of election hear and determine questions (Civ. Code §5110(c)(4) and perform acts as may be proper to conduct the election with fairness to all members (Civ. Code §5110(c)(8)). Because of the fear of ballot tampering, the inspector will likely refuse to accept ballots collected and delivered by a candidate (or anyone else other than the voter).


Candidate Qualifications. We modified our CC&Rs to require a candidate attend at least 3 meetings in 12 months to be eligible to run for the board. However, because of Covid-19, our board has only held two open meetings since November 2019. The board is disallowing my neighbor from running since he moved it 8 months ago and only attended one Zoom meeting. We think that this is unfair and the 3-meeting rule should be waived because of the virus. -Tim C.

RESPONSE: The 3-meeting rule should be dropped altogether since it is no longer allowed under SB 323. There is one mandatory and four permissive qualifications for candidates who want to run for the board. Attending 3 meetings in 12 months is not one of them.


According to a new CAI survey conducted from late June to early July, only 7% of community association pools opened as scheduled.

NorCal Counties. The State has launched “strike teams” to enforce compliance in counties on the monitoring list.

Dine-in restaurants, wineries and tasting rooms, movie theaters, indoor family entertainment centers, indoor zoos and museums, cardrooms closures now apply statewide. The 30 counties on the watchlist (Alameda, Colusa, Contra Costa, Fresno, Glenn, Imperial, Kings, Los Angeles, Madera, Marin, Merced, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Francisco, San Joaquin, San Luis Obispo, Santa Barbara, Solano, Sonoma, Stanislaus, Sutter, Tulare, Ventura, Yolo, Yuba) have to close even more: fitness center, worship services, malls, offices, personal services, hair salons and barbershops, malls. Imperial County is open to essential workers only (Stage one) and Alameda and Santa Clara do not have attestations and can only open those industries open statewide. **Kern appears to have dropped off. California Closures 7/13/20.

In addition to the other restrictions, those on the monitoring list will not be able to resume in person school operations until they have been off the List for 14 consecutive days.
It appears outdoor pools are still okay to remain open following guidance.

San Francisco has interim guidance for school openings. It announced their reopening is on pause indefinitely. Marin County has recommended the delay of full return to in classroom learning, recommending distance learning and small in person groups. Mono County has again emphasized the need to cooperate with Public Health tracing investigations.

Sacramento County has limited indoor operations as required by the State’s July 13 Order. Tehama County has a new masking mandate that is included in the Notes section of the chart.

SoCal Counties. The following counties issued or amended their health orders to limit indoor operations as required by the State’s July 13 Order: Los Angeles, Orange, San Diego, Santa Barbara, Ventura. Also San Luis Obispo was added to watchlist and is directed to follow the State’s July 13th order as of July 16th. The City of Los Angeles also issued an order to align with State’s order.

Los Angeles County has an updated pool protocol that swimmers who are swimming laps should be reminded that they should maintain a six-foot distance from other lap swimmers, which may necessitate limitations on the number of swimmers that use a lane at one time. It updated its residential pool protocol again on 7/18, which provides more screening and mask instruction for employees at the pool and provides for symptom checks for pool users can be conducted, online, in-person or through signage. Similar updates were made in the fitness center protocols.

Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 7-20-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


What happened to your newsletters? I haven't received any recently. -Jan M.

RESPONSE: I took time off to see the nation's monuments before they all disappeared. I'm back now.

Thanks for your newsletters, really appreciate your spreading HOA news! I have to disagree with you about masks outdoors. If someone sneezes, sweat flying from a bicycle rider etc, this does send out particles. -Jacqueline W.

In your July 13 newsletter you state: I hope it’s another hundred years before the next pandemic strikes. I should be retired by then. But, the truth is, old lawyers never retire--they just lose their appeal! Thanks for an informative and amusing newsletter. -Shirley P.

YOU are the greatest--since sliced bread! -Kay F.

Hi Adrian, I have been on my condo board for over 30 years and have been a long time subscriber to your newsletter. Thanks for all that you do to help keep us volunteers out of hot water!! -Phillip K.

RESPONSE: Thirty years! That has to be a record. I wonder if anyone else has been on their board for 30 years or longer.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Out-of-State Insepctors of Election

Jul 13, 2020 0 Views 0 Comments

QUESTION: Is it permissible to use an out-of-state election inspector and require owners to mail ballots to an out-of-state address? Or must the inspector be located/registered in California? -Jon W.

RESPONSE: Inspectors of election can be anyone--an owner, renter, CPA, manager, notary public, attorney, etc. The only requirement is that they be an independent third party. That means the person cannot be a director or candidate or related to a director or candidate, or someone who is currently employed or under contract to the association. (Civ. Code §5110(b).)


Out of State. There is no requirement that inspectors be registered or that they reside in the state. Normally, inspectors attend annual meetings where they open ballots and tabulate votes under the watchful eyes of interested members. Under current pandemic conditions, ballots are opened remotely and live-streamed so members can observe the counting. I suspect the use of out-of-state inspectors is rare but could be important to associations located near California's border with neighboring states. For example, an association in Floriston, California may find it more convenient to use an inspector across the border in Reno, Nevada.

Once the pandemic is over, annual meetings can return to normal where members don't show but the election inspector does.


QUESTION: Is there any way around this requirement to hire an independent inspector of election? I have a 3-member condo association and this seems overly burdensome. If the documents allow for elections by acclamation and the election is uncontested annually, does one need an inspector of election? -Amy B.

RESPONSE: The Davis-Stirling Act requires the appointment of either one or three inspectors of election. (Civ. Code §5110(b).) If you can find a volunteer, you don't need to pay for an inspector. Even if your documents provide for seating directors in an uncontested election, boards should still appoint an independent inspector to close nominations, determine that the number of candidates is less than or equal to the number of open seats and announce the outcome.

QUESTION: How is an uncontested election different from election by acclamation? In the four decades of of our 20-unit association, we've never had a contested election. We often have to 'romance' people into serving. But we've been advised by more than one source that the new law forbids election by acclamation. -Mark T.

RESPONSE:
There is disagreement in the legal community regarding uncontested elections.  I believe they are allowed if provided for in an association's governing documents. Because there is disagreement, boards should follow their association's legal counsel. The difference between an uncontested election and election by acclamation is in how the election is handled.

Uncontested Elections. If the number of candidates is less than equal to the number of open seats and if an association's governing documents do not allow for write-in candidates or nominations from the floor, candidates can be seated as soon as nominations are closed. There is no need to send out ballots since the outcome is already known.

Write-Ins. If an association's governing documents provide for write-in candidates, the number of candidates could exceed the number of open seats. That means ballots must be distributed to the membership and then opened at the annual meeting to find out if there were any write-in votes.

Floor Nominations. If the governing documents do not allow write-ins but do allow nominations from the floor, ballots must be distributed and a meeting held since there might be floor nominations. If at the meeting there are no additional nominations, ballots do not need to be opened and candidates can be elected by acclamation.

RECOMMENDATION: All associations should amend their governing documents to allow for uncontested elections and eliminate
cumulative voting, write-in votes, nominations from the floor, proxies, and quorum requirements for the election of directors. We do this for our clients and it greatly simplifies their elections and reduces costs.

QUESTION: We have already concluded our elections for 2020. I would like to start preparing for February 2021. Where I can find a readers digest version of all the new timeline changes and guidelines? -Jim M.

RESPONSE: Our website's Election Menu has everything you need. It's the most comprehensive resource for HOA elections in California.

QUESTION: I work with a board who wants to implement immediate consequences to members who break the emergency rules set in place for reopening. They want to remove member privileges first and have a hearing afterwards. Because of the health and safety nature of the rules, is this acceptable? -John S.

RESPONSE:
The pandemic has upended almost everything. It's possible a judge might agree with the board's suspension of statutory due process requirements for health and safety reasons, but I suspect not. If the suspension is challenged in court, the association would likely lose. I hope it’s another hundred years before the next pandemic strikes. I should be retired by then.


NorCal Counties. As of July 11, the following counties are on the monitoring list requiring the shutdown of bars and indoor dining: Colusa, Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Madera, Marin, Merced, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Benito, San Bernardino, San Diego, San Joaquin, Santa Barbara, Santa Clara, Solano, Sonoma, Stanislaus, Sutter, Tulare, Ventura, Yolo, Yuba.

Monterey County, Napa County, Madera County, Sutter and Yuba, have new orders that close indoor and outdoor bars, pubs, brewpubs, and breweries and indoor dining, wineries and tasting rooms, family entertainment centers, zoos and museums, and cardrooms.

Alameda County closed outdoor dining. This means that restaurants, wineries and bars are only open for drive-through or pick-up. Alameda County Press Release.

Contra Costa County has a new social distancing order and specific face covering requirements. Indoor dining is still prohibited, indoor religious services and cultural ceremonies are prohibited and outdoor ceremonies must be conducted following State guidance, indoor protests are prohibited and outdoor protests must follow State guidance. Social gatherings those over 12 must wear face coverings and all gatherings must take place outdoors.

Mono County is encouraging residents to cooperate with contact tracing investigations. Santa Cruz County’s pool guidance includes a sign: Santa Cruz County Pool Sign.


SoCal Counties. Los Angeles County updated pool protocols for indoor facilities with guidance on air filtration including increasing outdoor air circulation by opening doors, windows and using fans, installing portable high efficiency air cleaners, and upgrading a building’s air filters to highest efficiency possible. Also it provides information on coronavirus leave benefits.

Riverside County buildings are to close by 7/13 and conduct business virtually. State day camp guidance cannot be used as a pathway to open youth sports. All conditioning, skill drills and team games for youths are prohibited.

The City of San Diego is easing its parking restrictions to allow for outdoor dining.


Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 7-11-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Adrian, I saw a pool scheduling issue. What we do is post a clipboard by the pool entrance daily and residents are to bring their own pen and sign up for items like the hot tub (one residence at a time for 30 minutes) or lap swimming in the pool (one swimmer at a time for 30 minutes from 9:00 am-1:00pm), after that the pool deck and pool is open with a max of three residences at a time as long as social distancing is maintained. No pool HOA furniture can be used (we have it stacked and roped off). We have two clipboard sign-up lists and people are to bring their own pen to sign up. This has actually worked real well and we have 261 units. Hopefully this can give HOAs an idea on what has worked for us in Santa Barbara county. -Ray O.

I am on the board for a 530-unit complex. We opened our three pools and our program is a success: here is what we are doing: (1) One family/unit per pool at a time with 45-minute time slots beginning at the top of the hour; 15 minutes to exchange keys with guards; (2) All users sign a hold-harmless agreement (1 page) each time they use the pool (otherwise too hard to track); (3) All users can only take one time slot at a time. Once they use their time, then they can then sign up for another time slot. (4) We have wipes and sanitizer at each pool. (5) This has been so successful that some residents, including myself, think we should have a reservation system year-round! -Steve J.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Inspectors of Election

Jul 8, 2020 0 Views 0 Comments

QUESTION: I am the inspector for our upcoming board election. Can you tell me what my complete responsibilities are? -Natalie K.

RESPONSE: Before SB 323, management companies and volunteers could handle most elections. Under the bill, the duties of inspectors of elections were greatly expanded. They now include the following:

RECOMMENDATION: Because of the expanded duties and higher risk of litigation, finding volunteers willing to serve as inspectors has become difficult. As a result, boards should increase their budgets for annual elections. They will need to hire professional inspectors who know how to navigate the longer, more complicated election cycles created by SB 323. If boards have not yet done so, they need to adopt new election rules.

PROBLEM
ACHIEVING QUORUM


QUESTION: No one but our current members are running for election. Making quorum requires going door to door to collect ballots and then a team of people sitting in a room to count the returns. In view of the pandemic and since we are mostly seniors, would it be possible for Sacramento to allow us to delay the annual meeting a year, or until the crisis has passed? -Charles I.

RESPONSE: Of late, Sacramento has not offered any practical solutions to anything. You could have a complete turnover of your 55+ community before that happened.

Uncontested Election. Achieving quorum is an ongoing problem for most associations. To address the current situation, you have two options. The first is to announce to the membership that the election is uncontested and declare the candidates elected to another term on the board.

Go through the Motion. The second option is to go through the time and expense of a meaningless election. Because of the coronavirus, you should not go door to door trying to collect enough ballots to meet quorum. Only rely on ballots mailed to the inspector of elections. When you cannot make quorum, announce that the existing board will remain in place for another year.

RECOMMENDATION: I don't care for the second option because it's a waste of time and money. Instead, dedicate your resources to amending your bylaws to eliminate quorum requirements for the election of directors, provide for uncontested elections, and eliminate proxies, cumulative voting, write-ins and nominations from the floor. Doing this will greatly simplify your elections, reduce expenses, and minimize potential litigation.

SCHEDULING
USE OF THE POOL


QUESTION: We don't have the staff to handle scheduling members who want to use the pool. Does that mean we have to keep our pool closed? -Jeanette M.

RESPONSE: If scheduling is keeping your pool closed, the Pool Management Group has information on how boards can safely open their pools. In addition, there is an online scheduling program through #PoolisOpen that some associations are using. It may be the solution you need for opening your pool. You can learn more about it at www.poolisopen.org.


NorCal Counties. Contra Costa has a new face covering Order to comply with State guidelines.

Madera County is now on the monitoring list and is therefore implementing the 3 weeks' closure of: bars and indoor operations of restaurants, wineries and tasting rooms, movie theaters, family entertainment centers, zoos and museums, and cardrooms. The date of these closings should be announced tomorrow.

Marin County is also on the monitoring list and is closing the above as well. It appears that indoor dining is the only effect this will have.

Mendocino County has a new Order. Among the changes are the reduction of the “social bubble” from 12 to 6 for those who may occupy separate households (this applies to work groups as well). The Order requires establishments that serve alcohol to stop serving alcohol at 8 pm and reduces capacity to allow social distancing. The Order also updates requirements for certain businesses and facial covering requirements.


Monterey County is on the State’s watch list and is therefore closing indoor and outdoor bars, breweries, pubs and brewpubs as well as indoor restaurants, wineries and tasting rooms, family entertainment centers, zoos and museums, and cardrooms.

Sacramento County, San Joaquin County and Stanislaus County have new health Orders that limit indoor operations of restaurants, wineries and tasting rooms, movie theaters, family entertainment centers, zoos and museums, and cardrooms. The Orders also restrict indoor and outdoor bars, pubs, brewpubs, and breweries. The Orders bring these Counties in line with State requirements, due to their presence on the monitoring list.

San Francisco County announced that they are pausing the planned opening on July 13 of indoor dining and outdoor bars. The County is also considering the following reopenings that are scheduled by July 13 and will provide guidance by the end of the week: hair salons, barber shops, indoor museums, outdoor pools, gyms, real estate open houses, and zoos.

Santa Clara County has a new proposed order that would go into effect either July 13 or two days after the State approves the County’s variance if after July 13. The Order would allow hair and nail services, gyms, and small gatherings. It issued a press release that outdoor dining can continue.

Tulare County closed bars, pubs, brewpubs and breweries.

Yolo County is limiting indoor operations of restaurants, wineries and tasting rooms, movie theaters, family entertainment centers, zoos and museums, and cardrooms. The Order also restricts indoor and outdoor bars, pubs, brewpubs, and breweries (alcohol only). Yolo is not on the monitoring list, but is taking these action preemptively to align with neighboring Counties. It
issued a press release that they will be increasing enforcement measures.

SoCal Counties. Los Angeles County changed its pool protocols, prohibiting the opening of water slides, rides, and other water attractions. Also, if an association has employees, it must report to the Department of Health if 3 or more contract the coronavirus in a 14-day period. They also updated their multi-family residence guidelines; continued closure of community rooms, and recreation rooms, but allowing limited basketball court opening for skills building activities, but not for pick up or team games.

Orange County issued revised order on July 3, 2020 and provides for closure of bars, pubs, breweries and brewpubs that do not offer meals, and closure of indoor operations. Further, the following indoor operations are closed: indoor dining; wineries and tasting rooms; movie theaters; family entertainment centers; zoos and museums.

Riverside County, the City of Palms Springs extended its eviction moratorium due to non-payment of rent in relation to coronavirus pandemic to July 31, 2020.

San Bernardino County issued a new order on July 2, 2020 closing bars, pubs, breweries and brewpubs, and indoor dining; also, movie theaters, family entertainment centers, zoos, museums, and cardrooms are  prohibited from operating indoors.

Santa Barbara County issued an order closing bars, pubs, breweries and brewpubs for both indoor and outdoors. Also, movie theaters, family entertainment centers, zoos, museums and cardrooms are prohibited from operating indoors.

Ventura County has a new order on July 2, 2020 closing bars, pubs, breweries and brewpubs and indoor dining. Additionally, movie theaters, family entertainment centers, zoos, museums and cardrooms are prohibited from operating indoors.

Updated Chart. For a list of County restrictions and links to Health Department Orders, see County Chart 7-7-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Adrian, I really appreciate you, your newsletter and the Governor for stepping up to the plate by providing so much good information concerning the COVID-19. Thank you all for your time and hard hard work in keeping us all updated. -Paulette K.

I'm grateful to you for pointing out the HUD ruling. Board members need to be educated (the point of your undying efforts of the newsletter I presume). I see another side to the HUD "burden." As board members, we ARE leaders of our community who set the tone through actions and policies like a Code of Ethics. Not all issues of members will fall under HUD and warrant a full-blown investigation but the board is now at least "can" address and are "provided the opportunity" to review and determine how they choose to proceed forward. -Lisa

Adrian, thank you so much for reminding that distancing and not masks remains "the gold standard," as Dr. Fauci recently termed it. Masks are to be worn when distancing is not possible — a mandate from the old days? Fully support wearing masks when needed, but who are these people wearing them when walking alone? And when another person comes along, why don't they both just move to their respective sides and thus make distancing possible? Thanks, too, for all the informative, interestingly-written (and hey, often downright funny — love the sarcasm!) columns over the past months and years. -Sherry N.

Love your newsletter — it is filled with common sense and legal, especially in this new world. And humor is always welcome. -Merle R.

Love your newsletter with all the good advice particularly like your suggestion for HOA Nation. Would love to do it, could then declare myself Dictator for Life, charge exorbitant fees and request foreign assistance from the U.S.A. -Larry D.

Adrian. More common sense. An oasis in a sea of discontent. Thank you. Last week, we totally closed our pools and spas as well as tennis and pickleball courts. Cable chains on gates, combination locks so the maintenance people can get in and a big red sign about being closed for the duration due to Covid-19. Seeking loopholes to the two at a time rules and the kind of masks needed and the inability to of monitoring of wipe down...basically impossible and even more prone to liability. And yes, you can walk or bike around our streets unmasked if you keep the six foot distance. The bickering about the health of others is a distraction and unnecessary sideshow. I know we cannot protect people from themselves but we surely can protect others from the few people who have made the anti mask thing a movement. -Earl R.

What a hoot. I see people in cars windows rolled up with masks. I can but shake my head. -Kathy D.

Regarding your comments about people wearing masks while driving their cars with the windows rolled up: when wearing a mask, which I do, I have to deal with mask loops (the tie kind don’t work for me), my glasses, and hearing aids. Removing the mask is a hassle as the loops usually tangle with my hearing aids which knock them from my ears. Sometimes it’s easier to wear the mask, instead of putting it on and taking it off, donning it again, while out and about. -Virginia M.


NOTE: I receive far more emails than I can possibly respond to. Feedback on the coronavirus ranges from demands that boards force everyone to follow every dictate of State/County/Local authorities, to wanting boards to sit on their hands and do nothing. Watching the news does not help, since medical recommendations depend on the news outlet you watch. Moreover, the recommendations seem to change daily. Somewhere in the middle is a balanced approach. Everyone seems to agree that social distancing and wearing masks in common area hallways, elevators and lobbies makes sense. Fining bicyclists is not a priority. Each board should decide what emergency rules to adopt and enforce. They should do so in consultation with legal counsel.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

MASKS REQUIRED TO RIDE BICYCLES?

Jul 5, 2020 0 Views 0 Comments

QUESTION: Some residents do not wear masks while walking or riding their bikes. One owner asked the board to mandate that anyone walking or riding in the development wear a face covering. Can this be mandated or just recommended? -Marion A.

RESPONSE: If the board adopts emergency rules, it can mandate the wearing of masks while riding bikes. However, if I were on the board, I would vote against it. Some things don't make any sense. This is one of them.

Being in close contact with others is the problem, especially indoors. Riding a bicycle does not put members in close contact with others. The same is true about walking outdoors. If residents keep their distance from others, a mask is not necessary. If stop and talk to someone at less than six feet, they should put on a mask.

Everyone needs to use common sense. Health guidelines advise against close contact with others. That means avoiding crowded areas and wearing a mask when physical distancing is not possible. That's because the virus is spread person to person when an infected person coughs, sneezes, or talks and is within 6 feet of another person.

If boards wanted to, they could mandate that people wear a mask while driving their car in the development. I already see people alone in their cars with windows rolled up wearing a mask. It boggles the mind. Next, people will want boards to mandate wearing a mask to bed.

RECOMMENDATION: Boards should work with legal counsel to adopt sensible emergency rules.

QUESTION. Members are pressuring us to open the pool but we are afraid to because of the spike in the coronavirus and possible liability if someone catches it and blames us. How can we open the pool without getting sued? -Jim B.

RESPONSE: The only way to avoid litigation is to set up barricades around your association to create an autonomous zone and declare yourselves a separate nation--the HOA Nation. Then, you are no longer under state or county orders.

Sovereign Immunity. You can then decree that no members can sue your new nation for any harm related to the coronavirus (sovereign immunity). Other than that, I don't see any way to stop someone from hiring a hungry lawyer and blaming the association for whatever ills might befall them.

Causation Problem. However, as I've noted before, the likelihood of someone suing is remote since proving causation may be next to impossible. The person would have to prove (i) they got the virus from the pool area and (ii) it was due to the association's negligence.

RECOMMENDATION: Boards have two options, keep their pools and other amenities closed or follow published guidelines for reopening (and have residents sign a release). As I pointed out in previous newsletters, some of the county guidelines are reasonable and doable, while others are impossible for small associations to comply with. Some of our elected officials are completely devoid of common sense and have put association boards and members in a no-win situation. To navigate the mess, boards need to talk to their legal counsel.

QUESTION. Can a board discuss and create guidelines for pool reopening through a series of email exchanges and then ratify them at its next open meeting via teleconference? -L.K.

RESPONSE: Boards are not supposed to hold closed meetings. Making decisions via email qualifies as a closed meeting. The Open Meeting Act does not allow for email discussions and decisions except in emergencies. A video or teleconference meeting can be scheduled, the matter discussed, and decisions made in the open without violating the statute.

Face Mask Signage. As you know, the governor has mandated the use of facial coverings. Are boards required to post signage to that effect, including social distancing mandates, at lobby entrances and elevators? -Odette E.

RESPONSE: Signs are required for pool facilities (stay home if sick, maintain social distancing, wash your hands, etc.). I am not aware of any orders regarding signs in lobbies and elevators. Boards can
adopt their own emergency rules regarding face masks and post signs if they so choose.

Over the Cliff. Adrian, I think you've gone over the cliff with HOA duties to end harassment of protected classes. We are not housing providers; we are a 55+ community with each resident owning their own property. Everyone living here could be considered a protected class. This is one more reason why no one wants to sit on an HOA board. They are not the police, and should not have to be the neighborhood nanny. How about people taking personal responsibility and getting their own attorney and a restraining order? -Mike S.

RESPONSE: I didn't say I agreed with HUD; I simply reported our new reality. In prior newsletters I expressed dismay at the burden being placed on association boards.

State and federal regulations are annually weighing down associations with regulations that drive up costs, create potential liability, increase the risk of litigation, and discourage owners from serving on boards.

My firm, other professionals in the industry
, and legislative advocate Louie Brown are working with CAI's California Legislative Action Committee to persuade legislators to reduce some of those burdens. We will send out alerts as-needed to let you know how you can help. The latest problem child is AB 3182, which I will cover in our next newsletter.

NANCY SHOKOHI
JOINS ADAMS | STIRLING
 

We are pleased to announce that senior attorney Nancy Shokohi joined our firm. Nancy is based in San Luis Obispo and will work with our clients along the Central Coast, from Santa Barbara to Monterey, and inland to Bakersfield.

Insurance Litigation. Prior to joining, Nancy gained a wide range of experience as a partner in a mid-size law firm where she spent fifteen years specializing in insurance coverage analysis and litigation, primarily involving environmental contamination.

Non-Profits. Nancy has done legal work for many non-profits over the years. She assisted the Rotary Club, Big Brothers, Big Sisters, Women’s Shelter, the Mozart Festival, the Hearst Castle Board of Directors as well as human trafficking non-profits to resolve legal issues and draft documents and letters.

We are delighted to have Nancy join our team. If your association needs legal services, contact us for more information.


NorCal Counties. Governor Newsom required counties that have been on the county monitoring list for three consecutive days or more to close indoor dine-in restaurants, indoor wineries and tasting rooms, indoor family entertainment centers, indoor movie theaters, indoor zoos and museums, indoor cardrooms and indoor and outdoor brewpubs, breweries, bars, and pubs. As of July 1, 2020, this covers Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Merced, Orange, Riverside, Sacramento, San Bernardino, San Joaquin, Santa Barbara, Santa Clara, Solano, Stanislaus, Tulare and Ventura counties.

Alameda County has paused their reopening. In addition to the restrictions noted above, Contra Costa County is pausing its reopening of personal services not involving close contact with the face, gyms and fitness centers, limited indoor leisure activities, and hotels.

Mono County has new face covering guidance and modified operating rules for bars. Sacramento County has a new order that removes bars from the list of allowable activities. Santa Cruz removed beach restrictions.

SoCal Counties. Los Angeles County updated swimming pool and tennis/pickleball protocols that have employees onsite adding reporting requirements in the event of 3 or more positive Covid-19 cases in 14 days. The county ordered temporary closure of beaches from 7/3 to 7/6 and prohibited fireworks. It issued new guidance on face coverings. Both the county and city closed bars.

Orange County closed bars that do not offer indoor dining. Riverside County issued an order regarding bar closures for those establishments that don’t serve food.

San Diego County closed bars that do not offer indoor dining. Restaurants will be closing at 10 p.m. for new dining patrons and will close at 11 p.m. for all patrons.

Santa Barbara County closed bars that do not offer indoor dining. Ventura County beaches will be closed from July 3rd at 5:00 a.m. through July 6th at 5:00 a.m. Beach parking lots and restrooms will also be closed.


Updated Chart. For a list of county restrictions and links to health department orders, see the chart is posted on our website. If we missed anything, please contact us.


Adrian, Thank you for your newsletters and for providing this invaluable resource. You’re examples and iterations highlight this problem. -Don F.

Adrian, I remain overjoyed that there are at least a few other lawyers who enjoy humor. -Joseph M.

Your disclaimer in the June 29th newsletter was just the icing on the cake to your fabulous advice and comic relief (and I always go for the corner pieces with lots of icing). Thank you for making legal advice fun to read (gosh did I just say fun?!) -Dena P.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Harassing Females & Vendors

Jun 29, 2020 0 Views 0 Comments

QUESTION: We have a homeowner who has been harassing board members and contract landscapers for several years. He picks his victims carefully--single females or landscapers who are afraid to respond. He has recently taken to calling a female board member obscene names to anyone who will listen. The board and management are aware of his behavior. What should we do? -Suzanne S.

RESPONSE: The board needs to take action. California defines "harassment" as unlawful violence, a credible threat of violence, or 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. (Code Civ. Proc. §527.6(b)(3).)

Reluctant Boards. As a rule, boards generally avoid confrontation and are unsure how to deal with a resident who bullies and harasses others. They are reluctant to escalate matters and incur legal fees. Some are fearful the bully will shift his attention and start attacking them. They hope the bad behavior will subside on its own.

Strong Action. The problem with bullies is that they enjoy harassing other people. Passive or conciliatory responses only encourage more bad behavior. More often than not, intervention by the board can escalate matters as the bully tests the board's resolve. Stopping a bully requires strong action that signals significant legal and financial consequences if the bad behavior continues. That means getting the association's attorney involved.

Failure to Act. Failure to act can prove costly. The victims of discrimination and harassment can sue the association for failure to intervene. A case involving an association found its way into federal court in 1997. In Reeves v. Carollsburg, a male resident harassed a female owner (Reeves) yelling racist and sexist epithets and threatening to rape and kill her. Reeves repeatedly complained to the association. The board failed to act even though it was fully aware of the problem. 

Lawsuit Filed. Reeves sued the association claiming she suffered emotional injury and sought punitive damages. The association tried to get out of the case. The lower court refused to dismiss the case and the association appealed. The United States District Court noted that once the association knew about the incidents, it
had a duty to intervene. Therefore, the case could proceed. In addition, the question of punitive damages could also proceed. The association could be punished if the association acted with "reckless disregard" of Ms. Reeve's federal rights. (Reeves v. Carollsburg)

HUD Regulations.
Effective October 14, 2016, the U.S. Department of Housing and Urban Development (HUD) established regulations requiring all housing providers take steps to end harassment of protected classes. The regulation includes homeowner associations as a housing provider. (Code of Fed. Reg. §100.7(a)(1)(iii).)

Failure to Investigate. If a board fails to investigate complaints and take appropriate action, the target of harassment can either sue the association or file a complaint with HUD. Once a complaint is lodged, it is referred to California's Department of Fair Employment and Housing for investigation and possible legal action against the association. In other words, the State of California could sue the association on behalf of the plaintiff.

RECOMMENDATION: The board should get the association's attorney involved. If it has not already done so, it should adopt an anti-harassment policy describing (i) the association's policy against harassment, (ii) limitations on the association's authority, (iii) procedures for reporting harassment, (iv) how investigations will be conducted, and (v) potential actions related to findings.

Simultaneously, the board should have counsel send the person a cease and desist letter. If the behavior persists, it should hold a hearing and levy fines. If that doesn't work, a prelitigation offer of alternative dispute resolution (ADR) should be made. If the person is devoid of any sense of self-preservation and continues to behave badly, the board should sue him. (Contact us for more information.)

BREACH OF
FIDUCIARY DUTIES


In a prior newsletter, I mentioned a case involving breach of fiduciary duties by directors. It involved conflicts of interest.

In an unpublished case filed on June 11, a developer owned a majority of units in an association. This allowed him to elect a majority of directors to the board. A homeowner filed a lawsuit alleging the directors ran the association to benefit the developer at the expense of the membership.

Lower Court. The trial court found the developer's directors breached their fiduciary duties by improperly sharing the association's privileged communications with counsel with the developer, and approving assessments that benefited the developer and harmed members.

Court of Appeal. The decision was promptly appealed. The court of appeal came to the same conclusion and added that the developer directors were personally liable for their actions. The court pointed out that directors who act with a material conflict of interest are NOT protected from personal liability by the business judgment rule. (Coley v. Eskaton)

CONCLUSION: A conflict of interest exists when directors have a financial interest that is personal and distinct from that enjoyed by association members generally. Whenever that occurs, directors must recuse themselves from all discussions and votes on the issue.


NorCal Counties. Guidance for pool facilities has been added for El Dorado County, Placer County, San Mateo County, Sonoma County. Contra Costa is considering delay of July 1 openings.

Marin County is delaying some reopening set for June 29. The businesses and activities allowed to move forward with reopening on June 29 includes indoor dining, and hair salons and barbershops, campgrounds and RV parks, picnic and barbecue areas, outdoor vehicle-based gatherings. Reopenings that have been paused include hotels, motels and short-term rentals; gyms and fitness studios; and other personal services (body art professionals, tattoo parlors, piercing shops, electrology services, estheticians, skin care and cosmetology services, non-medical massage services, and nail salons).

San Francisco is delaying their reopening set for June 29. This includes hair salons and barbershops, nail salons, tattoo studios, museums, zoos, outdoor bars and outdoor swimming.

SoCal Counties. The governor ordered closure of bars in the following counties: Fresno, Imperial, Kern, Kings, Los Angeles, San Joaquin, and Tulare. The governor also recommended the following counties close bars: Contra Costa, Riverside, Sacramento, San Bernardino, Santa Barbara, Stanislaus, and Ventura. Riverside County is not allowing recreational and youth sports at this time.


Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 6-26-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Hi Adrian, It is still early and you are already making me laugh so hard with your response about the proxy! I can’t stop laughing! -Lorna

I have been unable to get past the first sentence of your response to the “proxies” question because I am laughing so hard I am afraid that I might wet myself. -Bob F.

Your response to the proxy question makes no sense whatever. If someone is dead, how can I get their signature? -Philip F.

LOL re the question re a proxy... and I suspect that your wry sense of humor was on display. RIP: “Rite-In-Proxy” -Kit

Sounds like you are suggesting getting the signature of a dead woman for her proxy!!!! -Ann V.

Adrian, thanks for always keeping your fingers on the “pulse” of how to handle deceased proxies!!! -Sue S.

Thanks for the laugh! And thanks for your informative newsletters. The information is most helpful, not to mention entertaining, when delivered in such a witty manner. -Kathy L.

I almost choked on my bagel this morning at the response to “Proxies.” The first paragraph had me laughing so hard! Thanks, it was a great way to wake up! Another excellent newsletter! -Barabra S.

Hilarious on the first one! -Pamela B.

How does one get a signature off a dead person? -John E.

"The proposed proxyholder should immediately go to the funeral home and get her signature before she is buried." You can't be serious!!! -George H.

Hahaha, tell Adrian that last newsletter cracked me up, OMG I was laughing. Get the dead person's signature for the proxy before she’s buried! -Shelly R.


Superb answer on the dead member! Adrian, you are not only an exceptional lawyer but also an exceptional literary artist! -Georgeta B.

Executor's Authority. An executor's authority depends on the stage of the estate, e.g., has the court approved the appointment of the executor, have assets been distributed? The more interesting issue–is the right to vote an asset? I would argue "No." The home is an asset, sure, but not likely the right to vote on an HOA issue. If you argue the right to vote is an asset, then that “asset” belongs to the beneficiaries of the estate, not the executor. -Jeffrey Greathouse, an Estates and Trusts attorney in Long Beach and Rancho Mirage, CA

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Meetings & Elections for the Dead

Jun 24, 2020 0 Views 0 Comments

Proxies. A member in our condo building recently died. Can someone carry her proxy for meetings? -Frida Z.

RESPONSE: Yes. The proposed proxyholder should immediately go to the funeral home and get her signature before she is buried.
It should be noted, however, that no person can truly rest in peace if they are still participating in HOA elections--even if by proxy.

If the person is already in the ground, the executor of her estate might be able to attend board meetings and vote in elections on behalf of the estate. I don't know the extent of the power of an executor. Someone with expertise in wills, trusts and estates will need to send us the answer.

In-Person Annual Meeting. We postponed our annual meeting. We know we can meet online via Zoom but would rather meet in person. We have only 12 units and usually meet in our recreational room. Can we limit it to a small number with chairs spaced 6 feet apart? How long can we postpone this annual meeting? -Pamela H.

RESPONSE: If you maintain six feet of separation and t
ake reasonable precautions such as wiping down surfaces, making hand sanitizer available, etc., you can hold an in-person annual meeting. If, however, the room is so small that you have to exclude people who want to attend, you should hold a Zoom meeting (or a combination in-person and Zoom meeting). There is no need to postpone the meeting. Your inspector of elections can live stream opening ballots and tallying results.

SOME POOLS
REMAIN CLOSED


Confused and Frustrated. Our board voted not to reopen our pool citing personal liability of board members should an outbreak occur at our pool even with waivers required and reasonable cleaning and distancing measures in place to protect homeowners. We as residents are confused and frustrated. Is there validity to our board’s concerns or is this unnecessary concern? -Whitney V.

RESPONSE: Boards vary on their willingness to take risk. Although I don't believe directors are personally liable if they follow the Business Judgment Rule (make decisions in good faith, in the best interest of the membership and with due diligence), another attorney might be more cautious. All of this is uncharted territory. To make matters worse, we have confusing and conflicting orders from state, county and city health officers.

Depending on your particular county's guidelines, some requirements are impossible for small associations to comply with. Even if an association can meet applicable health directives, we recommend boards adopt emergency rules and require a signed hold harmless agreement from residents who want to use recreational facilities. The alternative, is to wait until the coronavirus has burned itself out and health authorities have announced an end to the pandemic.

Hold Harmless Agreement. Our HOA wants us to sign sign a 4-page release agreement. It seems excessive and includes an indemnity provision. Are all associations doing this? -William

RESPONSE: I don't know if all associations are using hold harmless agreements. If they're not, they should. The virus is still circulating through the population and will continue to do so into the foreseeable future.

Different Releases. Different law firms approach releases differently. We use a one-page agreement that does not include an indemnity provision. We want to make it easy for members to use the facilities in exchange for an agreement not to sue their association. Making agreements long and/or onerous only encourages owners to seek legal counsel. More often than not, it results in disputes and runs up legal fees. Or, worse, the person refuses to sign the agreement and simply pushes their way into the pool area.

RECOMMENDATION: If you have concerns about your particular release, you should discuss your concerns with the board. If you cannot resolve them at that level, you may need to seek legal counsel. If the release is balanced, the board is justified in requiring it during the Covid crisis.

Face Coverings. Governor Newsom recently mandated the wearing of face masks. I live in a gated community where few people are wearing a face mask. Are gated communities exempt from the mandate or should boards be enforcing it? -Roberta C.

RESPONSE: Technically, the
June 18 directive regarding face coverings came from the California Department of Public Health (CDPH). The directive is not the model of clarity. The heading does not state "Order" but rather "Guidance" for the use of Face Coverings. It updates and links to an existing CDPH guidance which mandates that face coverings be worn. However, when you follow the link to the original document, it specifically states that "It does not mandate that face coverings be worn statewide."

When to Wear Masks. Putting aside poor drafting of the new directive, the Health Department intends for everyone in California to wear face masks. When you skip down to the guidelines, they pertain to "the general public when outside the home" who find themselves "in high-risk situations." It then defines those situations as standing in lines, being in indoor public spaces, riding on public transportation, interacting with any member of the public, etc.

Target Audience. The directive is aimed at the general public, not common interest developments. Accordingly, persons living in HOAs are not required to wear masks unless they are in a high-risk situation in the common areas. If someone is not wearing a mask in the common areas, the association is not obligated to intervene on behalf of the state nor does it have the jurisdiction to do so. Associations are not the policing arm for the State of California. They have no authority to enforce CDPH directives aimed at the general public. Nor does the state have authority to enforce rules adopted by the board. Each is a different entity with different jurisdictional authority.

RECOMMENDATION:
If an association wants to require face coverings in the common areas, the board should adopt and publish emergency rules requiring them. Boards can then enforce their own rules (not the state's directives) with hearings and fines. If the state were to specifically order associations to require all residents wear face masks in the common areas or face $1,000 fines then, and only then, does the order affect associations.

Deactivate Key Fobs. My association deactivated our fobs so we can't use any of the facilities. They will only reactivate them is we sign a waiver releasing the HOA, board, management and attorneys of any liability. These waivers will remain in effect going forward......so if I don't sign I can never use the facilities. Can they do that? -Meyeram

RESPONSE: Deactivating key fobs and requiring a hold harmless agreement to use the facilities can be justified during the Covid crisis but not otherwise. Once the crisis passes, I don't believe boards can continue to require a signed hold harmless agreement to use the facilities. The alternative is to keep all facilities closed until federal/state/county/city authorities declare the pandemic over so it is safe to use the facilities. When that might happen is anyone's guess.

Reduction in Assessments. If a state, county or municipal government rules that condo pools can be open but the board keeps them closed, can owners demand a reduction in their monthly fees for loss of services? We pay for the use and maintenance of pools, they are declared safe to open, but we are denied their use by a whim of the board. What recourse do owners have? -Louise H.

RESPONSE: You can demand a reduction in fees but the board is not obligated to provide it. In fact, the board may need to increase your assessments to meet the particular requirements of your county's health department for reopening your facilities. Some counties are being particularly demanding in their requirements, making it impossible for smaller associations to satisfy them unless they hire staff/vendors to continually wipe down surfaces and regulate how many people can use the facilities.

The phased reopening of recreational facilities and clubhouses (and businesses) is a mess. That's why boards need to consult legal counsel. Doing so satisfies one of the three elements of the Business Judgment Rule, thereby protecting directors from personal liability.


NorCal Counties. Alameda County now permits indoor and outdoor religious and cultural ceremonies, first amendment events, outdoor dining, outdoor fitness classes, outdoor museums, outdoor historical sites and publicly accessible gardens, dog parks, college sports.

The following counties have opened personal care services: Butte County, Calaveras County, Madera County, Mono County, Monterey County, Placer County, San Mateo County, Santa Cruz County, Shasta County, Solano County, and Yolo County.

Mendocino County opened personal care services, made revisions to school reopenings, clarified that industries opened by statewide guidance but not specifically identified in health officer orders are still permitted to reopen. It revised the transient lodging provisions, clarified outdoor religious services and protest guidelines. Public and shared pools are permitted to allow pool-based physical therapy or exercise (as recommended for health reasons) for up to 12 individuals at one time with social distancing.

Napa County now allows for personal services to open. Sacramento County opened personal care services. San Joaquin County now allows wineries, gyms, and personal care services. Sonoma County now allows all sectors allowed to open under State guidelines. Sutter and Yuba Counties expands the opening or personal care services but limits the number of people allowed at faith based gatherings and protests.

Tuolumne County now allows expanded personal care services. El Dorado County is not providing updated approval for sectors to reopen. Once sectors have been opened by the State, those sectors can reopen after developing and implementing a safety plan that follows State guidelines.

Lake County has opened personal services. Marin County will be reopening indoor dinging, hair salons/barber shops, nail salons, hotel/motels/short-term rentals, gyms/fitness studios beginning June 29.

SoCal Counties. Los Angeles County opened personal services, wineries and bars. The City of Los Angeles updated Safer LA order dated 6/20, aligning with County additions of personal care establishments, wineries and bars. Orange County revised health order on June 18, 2020, requiring facial coverings pursuant to state guidelines.

Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 6-23-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


I so enjoy the wit & wisdom you consistently sharing in the Newsletter. Best regards to you and your staff. -Pam L.

The newsletter is informative. -Mary H.

Adrian, I so enjoy the wit & wisdom you consistently sharing in the Newsletter. -Pam L.

Your newsletter is a great resource! -PK

Records Retention. Enjoyed your response about the cost to convert records to stone tablets. Where is the line between long enough and "... nobody in their right mind would want to keep HOA records that long." -George H.

RESPONSE: This is where boards should adopt a records retention policy. It provides a guideline on how long to keep records and how to properly dispose of them.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Membership Safety & Welfare

Jun 22, 2020 0 Views 0 Comments

The coronavirus has highlighted the role associations play in protecting members from harm. I received a number of emails asking about potential liability if boards open their pool facilities and someone gets ill. Others asked about general safety and security obligations. Following is an example:

QUESTION: In your June 11 newsletter, you commented on the board’s duty regarding the safety and welfare of the membership. We are often told that associations are not responsible for the safety of residents when it comes to crime. What about the safety of residents offered by preventive maintenance of the common areas? -Jeff F.

RESPONSE: It's true that associations are not normally liable for the criminal acts of others. However, they can be. Associations have a duty to exercise due care for the safety of residents and can be liable for any failure to take reasonable steps to protect residents from foreseeable criminal activity.

Health & Welfare. Most HOA governing documents have a provision giving the association, through its board of directors, broad authority to adopt rules and policies for the general health, welfare, and security of members. Adopting rules prohibiting glass containers and alcohol in the pool area, and requiring adult supervision of minors are examples of rules designed to protect residents. Closing recreational facilities due to the coronavirus is another example.

Maintenance Obligations. In addition to general safety concerns, associations have an obligation to maintain the common areas. If an association fails to maintain lighting, fix sidewalks, and repair roofs, it can be liable for harm to persons and property that results. Poor lighting and uneven sidewalks can lead to trip-and-fall injuries. Water leaks can cause property damage as well as personal injury from mold. When that happens, lawsuits are frequently filed.

Reopening Facilities. The reopening of facilities during a pandemic has caused a great deal of concern for boards of directors and law firms alike. The State recently issued guidelines for reopening facilities. Some Counties supplemented those guidelines with requirements of their own. In some cases, County guidelines are recommendations only. In others, they are requirements. The worst ones are the those that are unclear. Are they recommendations or requirements? What are boards obligated to follow?

Pressure to Open. Members have been pressuring boards to open swimming pools, hot tubs, gyms and tennis courts. Can boards open facilities when they don't have the staffing to implement guidelines that might be requirements, but no one knows for sure? To avoid potential liability, the safest course of action is to keep everything closed. Unfortunately, that may not be practical. Members have been breaking locks on gates and forcing their way into pool areas and tennis courts. Some are threatening to sue directors if facilities aren't opened.

Hold Harmless Agreements. Boards are struggling to balance demands to reopen, health concerns, and potential liability of the association. Many boards have opted to open facilities by taking steps they deem reasonable and practical. In addition to adopting emergency rules and posting guidelines for members to follow, boards are working with legal counsel to implement hold harmless agreements. Residents who wish to use the facilities must sign the agreement. Otherwise, they cannot use the facilities.

RECOMMENDATION: Because health directives seem to change daily and many are unclear, boards should work with their association's legal counsel to adopt emergency rules related to the facilities and require members to sign a hold harmless agreement. The virus is still in circulation and members need to understand they are using common area facilities at their own risk. 


The State mandated the wearing of face coverings. It is clear to anyone who ventures from their house that many are ignoring the order. It will be interesting to see how the State intends to enforce the mandate, especially if they disband the police.

NorCal Counties. Contra Costa County is now allowing RV parks, outdoor recreational facilities, hair salons and barbershops to open. They also modified restrictions on outdoor recreation, religious and cultural ceremonies, outdoor dining, campgrounds and outdoor pools. Pools are now allowed to have one person per 75 square feet.

Mono County has a new order allowing campgrounds and RV parks, hotels, motels and other lodging if they follow State guidelines.

San Mateo County is aligning sector openings with State guidelines. Dine-in restaurants, hair salons and barbershops, casinos, family entertainment centers, restaurants, wineries and bars, zoos and museums, gyms and fitness centers, hotels, cardrooms and racetracks, campgrounds and outdoor recreation are now open.

Tehama County opened cosmetology services, esthetician care, facials, electrolysis, waxing, massage therapy, nail salons, skin care, and tattoo/piercing parlors.

SoCal Counties. Los Angeles County updated its order regarding pools to align with public pool protocols. HOAs can skip section A of the protocol requirements if there are no employees onsite. The City of Los Angeles released a Safer Los Angeles order to align with the County Health Order for approved reopened business sectors.

The City of Palm Springs canceled July 4th fireworks spectacular due to State restrictions on large gatherings. San Diego County issued a new health order with minor changes to clean up language including persons sitting at restaurant tables are not required to wear a facial covering.

The following Counties have officially approved openings of personal services on June 19: Riverside, San Bernardino, San Diego, San Luis Obispo. The following Counties are delaying reopening of personal services due to an increase in hospitalizations: Santa Barbara and Ventura County.

Updated Chart. For a list of County restrictions and links to Health Department Orders, see County Chart 6-18-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Thank you for the very informative website and newsletter. -Jane M.

Our managers love your newsletters and find them very beneficial in understanding the larger concepts at play out there. Thank you for the humor and intellectual analysis of this often insensitive and contradictory industry. -Jeff F.

I enjoy your newsletters!! Your leadership and your commitment to fairness exceeds many. -Staci C.

Such a great newsletter--thank you! -Suzanne S.

I have been reading your newsletter for many, many years. I have found it very informative and enjoy the levity. I have also used the vast resources of your website on many occasions and am so grateful for having this resource. -Barbara M.

With the Covid crisis and confinement, everyone in our building and on the board seems to have gone a little crazy from stress. Thank you for the island of sanity we find in Adams-Stirling newsletters! -Robert L.

Cost of Conversion. With regard to storing old archives, you recommended digitizing documents. Our HOA has considered that a few times, however we haven't converted any due to the high cost of conversion from physical to digital. The monthly archive storage fee is cheaper than the associated cost to convert. Are you aware of any cheaper options? -Keri J.

RESPONSE: To save money, digitize everything moving forward. As for older records, dispose of those records according to your document retention policy and digitize any essential records. This allows you to make the conversion over time without incurring any significant costs.

Storing Records. Your response to the records storage question was excellent but I would like to add one more thing that might not be obvious to everyone. Whatever electronic mode you select, part of your procedure needs to be regeneration (copying) of the stored data on a periodic basis. Approximately every two years your data should be copied to a currently supported storage media, and the last two copies should be retained as back-ups. Cloud storage is great for information that needs frequent access but dependable from loss it is not. -Jim F.

RESPONSE: No storage solution is perfect. All have weaknesses. The benefits of cloud storage are (i) the ease of locating records, and (ii) the ease of disposing of older non-essential records. If you use cloud storage, there is no need to copy records every two years. Hardware and software are automatically updated by the storage provider.

Long Term Storage. Regarding document retention: paper/papyrus/hide/ kept under proper conditions = 300+ years; painting on stone in dry caves = 10,000+ years; chiseled in stone = 1,000,000+ years (depending on the stone and the depth of carving). -James S.

RESPONSE: I thought about including these in my article but the cost to convert records to stone tablets plus storage costs were quite steep. Besides, nobody in their right mind would want to keep HOA records that long.

Governing Documents. Thank you for your newsletter's continued education about what boards should know. It is my understanding that four documents are needed for a common interest development: (1) Articles of Incorporation, filed (once) by the developer with the Secretary of State; (2) Declaration of Covenants, filed (once) by the developer with the County Recorder; (3) Bylaws, not filed or recorded, address the governance of the association; and (4) Rules amended by boards as-needed. -Guy T.

RESPONSE: The documents needed to create a common interest development (CID) depends on its particular legal form. There are four legal structures for CIDs. Two of them do not require CC&Rs (stock cooperatives and community apartment projects). The other two (condominiums and planned developments) require CC&Rs. Except for a stock cooperative, articles of incorporation and bylaws are not required to create a CID. To learn more, see our CID Menu.

Term Limits. I thoroughly enjoy your newsletter! With SB 323, is it possible to include term limits in election rules, such as limiting board members to serving for 4 consecutive years? -Travis M.

RESPONSE: One of the many problems created by SB 323 is the nullifying of term limits. Restoring them is on the to-do list for CAI's California Legislative Action Committee (CLAC). Provided there is no interference from the Center for California Homeowner Association Law (CCHAL), it should be an easy legislative fix. Unfortunately, it's unlikely anything will be done this year due to the pandemic. Many associations are simply ignoring SB 323 and keeping term limits intact. As long as no one challenges the board's decision, there won't be any fallout. Unfortunately, SB 323 significantly increased the risk of litigation associated with HOA elections. This is one of them.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Storing Old Records

Jun 14, 2020 0 Views 0 Comments

QUESTION. We have been storing boxes of records for 50 years. It's time to clean house. What type of storage media is acceptable for records that need to be kept forever? -Ron H.

RESPONSE: For long-term records storage, there is no perfect solution.


Data Degradation. All data storage media degrades over time. It is a fundamental law of the universe that disorder increases over time (entropy). That means everything grows old, breaks down and dies. Paper becomes brittle and crumbles over time and is subject to damage/destruction from insects, water and fire. Magnetic tape storage loses data as it loses its magnetic charge. The tape itself also deteriorates. Flash memory loses data as electrical charges slowly leak away. Optical media, such as CDs and DVDs lose data as discs break down.

Media Lifespans. Estimated lifespans of media vary significantly. Magnetic storage 10-20 years; Flash storage 5-10 years. Optical storage up to 100 years (under less than ideal conditions, 30 years or less). Human brains, up to 120 years (very rare).

Changing Technology. Even if media is properly stored, there is the problem of changing technology. What is widely available today may disappear over time as software coding and machines become obsolete. Assuming their memories are still intact, readers in our 55+ communities will recognize most on this list of evolving data storage.

78 rpm records (1901)
Vinyl LP records (1948)
7-inch 45 rpm records (1949)
Open reel tapes (1949)
Compact cassette tapes (1963)

8-Track tapes (1964)
Floppy computer disks (1971)
VCRs (1972)
Betamax (1975)
LaserDisc (1978)
Compact discs (1982)
3.25-inch computer disks (1983)
Digital Audio Tapes (DAT) (1987)
Compact Discs-Recordable (CD-R) (1992)
DVD-R (1997)
Secure Digital (SD) (1999)
USB flash drives (2000)

All data storage media need devices to read them. Most for the above list can no longer be found, except in museums.

RECOMMENDATION:
Develop a written document retention policy. Run it by your CPA and legal counsel for their stamp of approval. Then, shred documents you don't need and digitize the rest (unless you have a litigation hold). You should use the PDF/A format which is specialized for archiving and long-term preservation of electronic documents.

In the grand scheme of things, associations will have a relatively small amount of data to store, but it needs to be readily accessible. Associations use cloud backup, such as Carbonite, or a storage site that manages data security (not Amazon Web Services, which expects you to do it yourself). The small monthly storage fee to store data in the cloud pales in comparison to the cost of the real estate needed to store paper.

GOVERNING DOCUMENT
UPDATE


Minimal Rules. Our board will be updating our antiquated CC&Rs and bylaws but wants to create a set of documents that have minimal rules which still meet legal requirements. Is there such a thing as minimum documents required by regulations? -Dean

RESPONSE: Yes, restrictions in CC&Rs and rules can be minimized. There are basic legal requirements that must be met but that can be done fairly easily. Election requirements in bylaws and election rules are the problem. SB 323 greatly complicated elections. The bill's negative impact can be blunted by eliminating quorum requirements for the election of directors; eliminating cumulative voting, proxies, write-in nominations and nominations from the floor; and providing for uncontested elections.

Registering Bylaws. Doesn't California require changes to bylaws be registered with state agencies? -George B.

RESPONSE: No, not bylaws. CC&Rs and their amendments must be recorded with the County Recorder because they restrict the use of real property. Articles of incorporation must be filed with the Secretary of State. Bylaws and rules, however, are not recorded nor are they filed with any governmental agencies.

Health Directive Priorities. Does state public health orders take precedence over a county's health orders? California's Department of Public Health is allowing HOA pools to reopen provided guidelines are followed, while our county wants it to remain closed forever, not even for lap swimming, which is neither rational nor reasonable. -Bette L.

RESPONSE:
Between the county and the state, the more restrictive orders prevail. For example, California does not require face coverings in public. Orange County's health officer chose not to follow the state's lead and issued an order mandating face coverings in public. Her order controlled over the state's permissive recommendation. However, there was such a backlash that she resigned from her post. The interim director promptly retracted the order so that face coverings are now recommended, not mandated, in Orange County.

Hot Tub Minimum Age. Is there a regulation in California about the minimum age of children in spas and swimming pools for HOAs? We are updating our rules. -Vernon C.

RESPONSE: No, there is no minimum age by statute. However, hot tub manufacturers have recommended age restrictions. Adult supervision can be required for children under 14. Make sure you have legal counsel review your rules to make sure they don't violate any laws against discrimination.


NorCal Counties. Fresno County opened gyms, fitness centers, parks and outdoor recreation (including pools). Lake County opened outdoor recreation (including pools) and fitness facilities (gyms) as did Mendocino County.

Monterey County rescinded their short term lodging order. Sacramento County allowed a large number of sectors to open, including gyms, fitness studios and facilities, and pools. San Francisco opened outdoor dining.

San Joaquin County opened outdoor recreation including pools, but gyms remain closed. Santa Cruz County opened outdoor recreation; gyms and fitness centers. Sonoma County opened wineries and tasting rooms. Tulare County opened gyms and pools. Tuolumne County opened outdoor recreation (including pools), fitness facilities (gyms).


SoCal Counties. Los Angeles County posted their health order with protocols for reopening for fitness facilities; campgrounds and RV parks. See what’s open in Los Angeles.

Orange County changed their health order for facial coverings in public from required to strong recommendation. Riverside County issued a health order cancelling the Temecula Valley Balloon and Wine Festival for 2020.

Ventura County issued new health order adopting the state guidelines for the reopening places of worship, campgrounds and RV parks, and fitness facilities.


Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 6-13-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Hot Tub Proximity. In regards to opening hot tubs, it’s not about the water, it’s about the air and the close proximity of users. Masks would be more of a requirement than swimsuits. -Peggy H.

RESPONSE: Refusing to open hot tubs makes no sense. There is no threat of spreading the virus between members of the same household--no masks or bathing suits are required and they are still perfectly safe.

Legal Advice. Adrian, I got a chuckle from your newsletter this morning. Legal advice from a manager?! Never. Contact your retained legal counsel. Just emailed a board member that right before seeing your newsletter. -Russ H.

Adrian, well said on the advice to managers. -Roy H.

I like the part of “Value of Managers.” I think this says it all. Managers should not be making this decision or giving advice, they should recommend that the board consult with legal counsel. Now, if only we can convince them of it. LOL! -Paula C.

Manager's Attorney. You wrote an excellent write-up about managers practicing law. Can HOAs take legal advice or get answers to legal issues from the manager's attorney?? -Linda L.

RESPONSE: Boards should avoid management companies that offer "free legal" if you hire them to manage your association. It is a conflict of interest for an attorney to represent an association and the management company at the same time. Under State Bar Ethics Rules, dual representation requires informed written consent. Reputable management companies are careful not to offer legal services as part of their management package.

Balcony Inspections. I enjoy reading your newsletter and it helps me as a board member. Your answer about the balcony inspections is incomplete. These are cantilevered balconies only. This is clearly stated in the law. There is no need to inspect non-cantilevered balconies under the law although it is always good to inspect. -Nick M.

RESPONSE: The statute covers more than just cantilevered balconies. (Civ. Code §5551.) Those with wooden supports are also vulnerable to dry rot and termite damage that can lead to collapse. See "Balcony Inspections & Repairs."

Reserves. Thank you for your continued support of reserve studies. Neither updating governing documents nor reserve study fees are a reserve expense. They do not meet the criteria outlined in the CAI or APRA Standards of Practice, nor the California Civil Code. And, as you noted, reserve study expenditures are annual, with an anticipated higher fee every three years for the engagement involving a site visit. We are aware of the argument that other secondary costs are considered reserve expenses, such as architectural or engineering plans or reviews, municipal permit fees, and multi-year testing/inspection of elevators or fire suppression systems. The difference is these expenses are directly related to specific physical elements of the property. -Scott Clements, Reserve Studies Inc.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

Legal Advice Hives

Jun 12, 2020 0 Views 0 Comments

I received a number of emails from directors asking me to validate legal advice given to them by their managers.

Secondary Advice. It seems a few managers have been offering opinions on liability related to opening or not opening amenities. In some cases, managers passed on legal advice from their management company's attorney.

Personal Liability. This gives me the hives (a skin rash triggered by stress). Boards should be getting counsel from an attorney representing their association, not from a manager or secondhand from a lawyer representing some other entity. If a board is sued over opening or not opening their amenities, directors will not be protected from personal liability by claiming they acted on legal advice from a manager or hearsay from somebody else's attorney. That defense will not hold up in court. An appellate case released yesterday deals with directors who were found personally liable for breach of their fiduciary duties, a case I will report on next week.

Corporate Counsel. Directors need corporate counsel with whom they can meet, talk to, ask questions, get explanations, and receive legal opinions. Doing so protects directors under the Business Judgment Rule. Relying on someone not licensed to practice law or secondhand opinions from an attorney not representing their association provides no protection whatsoever.

Value of Managers. Some boards put managers in a difficult position by asking them for legal advice so they can avoid attorney fees and
save a few dollars. Boards should not do that to their managers. They put their managers at risk along with their association and themselves personally. Managers are most valuable when they flag potential legal problems and advise boards to seek legal counsel. 

RECOMMENDATION: If they have not already done so, boards should retain an experienced HOA attorney to advise them on legal issues surrounding the opening of their amenities (and any other legal issues that may arise). I make this recommendation not to increase HOA expenses but to keep directors out of trouble. You are volunteers and you don't want your personal assets on the line just because you tried to save a few dollars for your association.


Hot Tubs. I know the state says pools can open but spas should remain closed. I am wondering why spas should not open. The virus is killed by properly maintained spas and it doesn't like heat. I don't see why we can't open our spa. -Michael W.

RESPONSE: Some health directives don't make any sense. Neither the CDC nor the state is ordering the closure of spas. Some counties are only recommending closures. Other are ordering closures, and still others make a distinction between indoor and outdoor facilities. Santa Clara County, for example, is allowing outdoor swimming pools and hot tubs to open, but requiring indoor pools and spas to remain closed (a distinction not made by the state). 

Boards and managers faced with directives that don't make any sense should contact their county supervisors and health department officers. It does not hurt to put pressure on officials to issue directives that are rational and reasonable. Or, as the Centers for Disease Control put it, "feasible, practical, and acceptable."


Taking Temperatures. It seems to me that taking the temperature of someone before allowing them into a common area facility does not fall under HIPAA privacy rights. Taking a temperature is not only prudent but may be necessary to prevent HOA liability if illness and damages result from such a failure. -Daryl H.

RESPONSE: I agree; the privacy protections in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) do not apply. HIPPA set standards for transmitting electronic health data and only applies to: (i) health care providers such as doctors, dentists, hospitals, nursing homes, and pharmacies that transmit health information electronically; (ii) companies that pay for health care, such as health insurance companies and health maintenance organizations (HMOs); and (iii) health care clearinghouses that process information so it can be transmitted between covered entities.

Based on the above, businesses and homeowner associations are not subject to HIPAA. That means they can take the temperatures of persons entering their facilities. A number of our clients are already doing so. Condominium highrises have onsite staff who can perform such tasks and are sometimes described as cruise ships turned on end. As such, they are more vulnerable to the spread of the coronavirus and often
impose extra precautions, such as taking temperatures.

NON-CORONAVIRUS 
ISSUES


Reserves. Should the cost of reserve studies and revision of governing documents be paid out of our reserve account or the operating account? -George B. 

RESPONSE: I believe annual reserve updates and 3-year onsite visits can be added as a line item in your reserve study since they are related to repairing and replacing major common area components. You also have the option of adding the expense to your operations budget since it is an ongoing annual expense. You just have to remember to increase the line item every three years for the onsite visit.

Restating Documents. Classifying the cost of restating your governing is problematic. It cannot properly be deemed a reserve item since it does not fit into any repair or replacement category. Unfortunately, it cannot be classified as an operational item either since it is not an ongoing annual expense to the association. Instead, it's an expense incurred every ten years or so. The only logical place to put it is in reserves where monies can build up over time, which is where most associations put it. That way, monies are available when needed to restate documents. Otherwise, they become excess monies in your operations budget that roll over from year to year, subjecting them taxes. Maybe our CPA readers and reserve analysts can add their thoughts to this issue.

HOA Documents. How do we know if our HOA documents are in compliance with current state law? -Larry D.

RESPONSE: Diligently read our newsletter and carefully comb through our website OR have your association's legal counsel review your documents and advise your board on whether they need to be updated.

Balcony Inspections. This question relates to the relatively new balcony inspection requirement. Balconies, stairways and landings are referred to as exterior elevated elements. What if an association has balconies that are built over garages or other living space so that if the balcony fails, there would be no dangerous collapse in which the balcony falls to the ground. Are those balconies exempt from the balcony inspection requirement? -Chris 

RESPONSE: If your balconies collapsed, would those standing on them suffer serious injuries or death? If so, follow the inspection guidelines imposed by Civil Code §5551. If you are unsure if they fall under the statute and want to insulate your board from potential legal liability, either (i) get a written opinion from an engineer/architect/legal counsel that the balconies do not fit under the statute's requirements or (ii) have them inspected along with other elevated wooden structures.


We added a column for state guidelines so readers can compare their county's guidelines against the state's. Some counties diverge significantly from what the state allows or disallows.

NorCal Counties. All Northern California counties which are opening gyms and pools, are also opening schools, movie theaters, family entertainment centers, professional sports (without live audiences), wineries, bars, zoos, museums, gyms and fitness centers, hotels for tourism, card rooms and racetracks, campgrounds, RV parks and outdoor recreation.

All counties following the state with regard to golf courses were updated to match the state’s guidance.

Butte County, Madera County, Mono County, Monterey County, Nevada County, Placer County, Shasta County, Solano County, Stanislaus County, Sutter and Yuba Counties, and Yolo County have been updated to track  pool and gym openings effective 6/12.

Calaveras County has been updated to track pool and gym openings effective 6/12. Their 6/10 press release indicates that its lodging order will be rescinded on 6/12.

Mendocino County’s order expires on 6/12. As of now, it is unclear whether a new order will be put in its place. Santa Cruz County has a new order removing lodging restrictions. Tehama County has a new Roadmap to Recovery with links to sector guidance. Pools and gyms are open, but spas are closed.


SoCal Counties. Kern, Orange, Riverside, San Luis Obispo, San Bernardino, San Diego, and Santa Barbara Counties are allowing the following to open on June 12: pools, schools, movie theaters, family entertainment centers, professional sports (without live audiences), wineries, bars, zoos, museums, gyms and fitness centers, hotels for tourism, card rooms and racetracks, campgrounds, RV parks and outdoor recreation.

Los Angeles County is not allowing wineries, bars, movie theaters, gaming facilities, and family entertainment centers (including theme parks) to reopen, but allowing the other sectors on the above list to reopen.

Riverside County announced Coachella and Stagecoach festivals are cancelled for the remainder of 2020.


Updated Chart. For a list of county restrictions and links to Health Department orders, see County Chart 6-12-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.

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, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.