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.

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.

State Allows Pool Openings

Jun 10, 2020 0 Views 0 Comments

The website for the Centers for Disease Control allows for the opening of HOA pools and recommends that:

All decisions about implementing these considerations should be made locally, in collaboration with local health officials.... Their implementation should also be informed by what is feasible, practical, and acceptable.

As reported in prior newsletters, California's Department of Public Health (CDPH) refused to allow pools to reopen. To get around the order, some counties defined HOA pools as private and allowed them to open. Others simply ignored the state and told HOAs they could open their pools. Both approaches created potential liability for associations because the CDPH deemed HOA pools "public" even though they were never defined as such on their website.

Stage 3 Allowed. The CDPH is finally loosening its grip and is allowing counties to move into Stage 3, which means pools can open if
boards post a Safe Reopening Plan that shows conformance to the requirements of California's 15-page Industry Guidance on Fitness Facilities. Guidelines for swimming pools start on page 13. On a related issue, the guidelines state that saunas, steam rooms, and hot tubs should remain closed. The guide uses the word "should," which is not mandatory. Boards should get together with management (and/or legal counsel) to prepare and post guidelines for their particular facilities.

Not Allowed. Not currently allowed by the state are nonessential healing arts (massage, etc.), personal services such as personal training, tattooing, permanent makeup, piercing & nail salons, movie theaters, basketball courts, playgrounds, soccer, youth sports, and nightclubs. Guidelines for opening gyms are very strict and will likely be too difficult for smaller associations to meet.

Updated Chart. See our chart of counties under "Covid 19 Updates" for more information and then again Friday to see which counties are moving into Stage 3 for facility openings. If your county is not opening amenities, you need to lobby your county supervisors.

MISCELLANEOUS
ELECTION ISSUES


Delinquent Director. I received a few emails from readers confused about delinquent directors running for office.

In Sunday's newsletter, I pointed out that SB 323 voided qualifications that prevent a delinquent owner from running for the board (which it did) and also provided a link to the statute's permissive qualifications, which included delinquencies. I don't think everyone followed the link.

One of the permissible qualifications allows a candidate to run if he/she pays their assessment under protest or enters into a payment plan. If the candidate does not do either, an association can disqualify him/her as a candidate (following IDR). If boards wish to utilize this provision, they first need to amend their election rules. The mandatory rewrite of election rules is the first of many costs associated with SB 323. If they have not already done so, boards should contact legal counsel for new election rules.


Election Updates. So much literature is going back/forth on the new election requirements. Will you be providing updates on how HOAs are supposed to conduct a legal election if they cannot meet and everyone is not tech savvy? We’re receiving a great deal of pressure of conducting an election. -Sharon B.

RESPONSE: Yes, we will publish updates and guidelines in upcoming newsletters. As boards and managers are discovering, SB 323 made a mess of elections. Marjorie Murray's organization significantly increased the timeline and added more steps to the election sequence. Management companies have been sidelined, spouses not on title are now barred from elections, and felons have been injected into the mix. As a result, elections have become complicated and expensive. To that, add a pandemic.


Adopt New Rules. Before holding any more elections, boards must adopt new election rules. Once implemented, they provide a roadmap for holding SB 323 elections. Then, budget more money for elections and increase your line item for legal fees. Because of SB 323, elections have become much more vulnerable to legal challenges.

Virtual Meetings. Holding meetings during a pandemic has become fairly easy thanks to Zoom and other video conferencing platforms. I covered how-to guidelines in prior newsletters and will address them again in future newsletters.

National Politics. Can we as board members tactfully ask a board member not to wear a baseball cap promoting a candidate for president? -Jack G.

RESPONSE: Yes, you can. I'm not a fan of directors injecting local, state or national politics into board meetings. It puts everyone on edge. The duty of directors is to oversee their association. That means managing the common areas, providing for the safety and welfare of the membership, handling corporate finances, and enforcing governing documents. Injecting politics into the mix is a sure way to derail the board's business.

Recommendation: You should politely ask your director to wear a different hat during board meetings. He has a First Amendment right to free speech but this particular form of speech should be left at the boardroom door so everyone can focus on HOA business. Once directors complete board business, they can freely engage in political speech outside of board meetings.


NorCal Counties. Madera and Monterey Counties will allow additional services to open June 12. San Francisco is now allowing tennis courts to open and it relaxed its guidelines for golf.

Solano and Tehama Counties allowed those activities set for June 12 to open June 8. This includes gyms and pools. Sonoma County does not plan to move to the next stage until June 22.

SoCal Counties. San Diego County has a new order. Effective June 12, pools can open, provided boards post a reopening plan that complies with the county's order and the state’s guidelines. Schools can reopen June 12 once they complete and post a reopening plan. The City of San Diego has reopened all piers, boardwalks and beach parking lots.

Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 6-10-20. 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.


Hello Adrian, Princess Diana’s former butler Paul Burrell writes that Diana was extremely diligent about sending hand-written thank you notes, which he would post for her immediately following a dinner or other occasion that required it. Thank you very much for your generous gift of expert legal counsel and wit. -Dino D.

RESPONSE: I didn't entirely follow the Princess Di analogy but I thank you for the compliment.

Love your newsletter! -Elaine M.

Thank you for great insight in every newsletter. -Christine K.

Hello Adrian, love, love, love your newsletters! -Donna W.

Hello, for 13 years our boards have found your website and newsletters extremely helpful and have recommended both to homeowners and board members. -Lea B.

I follow your newsletter and appreciate the information provided. However, our association is in Nevada and not all California rules and regulations apply here exactly. Any chance you could add a Nevada office (especially Reno as Las Vegas is something different altogether)? We could use the help and insight. -Terry R.

RESPONSE: I've thought about it but would need an attorney licensed to practice in Nevada. I agree, Las Vegas is a different world. 

Your suggestion about the board member who wants to resign is perfect. As a management consultant, time and again, I found that people overstayed in positions because they thought no one else would step up. The way to get people to step up is to step out. It works almost 100% of the time. Thanks for your good works. I am sorry Covid has kept you out of your normal work but we are the beneficiaries. So many good columns of late. -Earl R.

I was president of an HOA on the East Coast for 15 years! We had 23 units. I finally got out of the presidency by refusing to be reelected to the board and then moving out of the association. I wish I had had a column like this to provide good advice with good humor in some of the tougher times. I attribute my bald pate to those years. No longer a board member of anything! -Paul G.

Thank you for all your informative updates during these few months; it's much appreciated! -Michele N.

Good morning Adrian. Just soliciting a little clarification to your last newsletter. Contra Costa County is allowing outdoor seating at restaurants and dog parks. Does this mean the dog and I have to be seated at the dog park, or just the dog? -M.S.

RESPONSE: Both need to be seated. If you and the dog run around in the dog park, it would undoubtedly create a spike in pandemic numbers.

Great newsletter at the unbeatable price of $0 for unlimited access. Thank you for the effort. And, if it matters, I miss the discussions about goats. -Scott C.

What an excellent newsletter and source of information. I am the president of our association and the job keeps me hopping. I have been able to avoid several landmines just because i read this newsletter religiously. I appreciate the valuable advice and thoughtful responses to questions that come your way. Eager to read more. -David T.

I live in a 55+ HOA and placed a "Black Lives Matter" sign on my front lawn. I am disabled and view this as my quiet protest. I too have been concerned about backlash from my board but so far have not heard anything negative from anyone in my community. Even though I would not have taken it down, I am so thankful for your comments, you have given me hope. Thank You! -Paulette K.

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.

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.

No Experience President

Jun 5, 2020 0 Views 0 Comments

QUESTION: Are there any prior experience requirements for selecting a president? We have no such requirements in our community’s documents. However, an association member heard that there may be legal code requiring a person to have at least a year of experience serving on the board in order to be selected as president. Is this true? -L.J.

RESPONSE: No, it's not true. There is no statute requiring prior experience for a director to be selected as president. A homeowner can innocently volunteer to serve on the board, be elected, and minutes later be sentenced by fellow directors to serve the next twelve months of their life as president. Those so appointed find that time suddenly slows to a crawl. The only real requirement to be president is the person should be breathing. Sometimes, even that can be waived if an association can't find volunteers.

San Diego. It would be most appreciated if the San Diego County Health Department would allow HOA pools to be re-opened (within conditions and guidelines) without further delay. Our 55+ community, is supported by 1,789 residences. A great many of these seniors depend on the swimming pool as a necessary form of exercise for their health and well-being. -Karen

RESPONSE: For some reason, Nick Macchione and Wilma Wooten have forgotten the health needs of seniors. Residents should contact their county supervisors as well as Macchione and Wooten and ask for their consideration.

Nick Macchione, Agency Director
Wilma Wooten, Public Health Officer
Health and Human Services Agency
3851 Rosecrans Street
San Diego, CA 92110
(619) 542-4170
Fax (619) 542-4186

Hold Harmless Agreement. Can we have our homeowners sign a waiver to use the pool? The protocols are impossible for a small property like ours. We have no money to hire a pool monitor, janitor or cleaner to stand by every time someone uses the restroom at our pool. -Jill

RESPONSE: As you pointed out, the requirements of some health departments are impossible for small associations to comply with. A few counties have been reasonable and rationale while others are not. If a small association cannot meet the requirements and the board decides to open their pool anyway, you should at least have your members sign an acknowledgement and release. Talk to your association's legal counsel for guidance.

Sign in Window. My daughter put a "Black Lives Matter" sign in her bedroom window which is located in the rear of our unit. I received a call from our HOA president asking me to take the sign down because the unit behind me is in the process of listing their unit for sale and they think the the sign could ruin their sale. Am I in violation by allowing my daughter to display a sign in her window? -Alan S.

RESPONSE: No, you are not in violation. Associations cannot prohibit political signs, posters, flags or banners on or in an owner's separate interest. (Civ. Code §4710.) If the buyer is offended by your daughter's sign, he/she is probably not a good fit for your association and should look elsewhere for a unit.

Paperless Requirement. Thank you for your newsletters, the best of all produced! In real estate, we are restricted on the use of paper and all transactions are paperless using digital signatures. Does the same restriction hold true for HOA and board business? -Erny P.

RESPONSE: No, there is no requirement that associations stop using paper. Even so, many management companies are steadily moving away from paper. Paper records are expensive, especially when it comes to archiving records. It is much faster and less expensive to transmit electronic records and store them.

Electronic Distribution. Since the start of the pandemic, I've distributed 1.2 million newsletters. Can you imagine the cost in paper, envelopes, postage and man-hours if our firm had not moved to electronic newsletters? Management companies and boards have increasingly solicited homeowner email addresses so they can distribute notices and records via email. With the pandemic, electronic distribution is safer than paper. I expect the trend to electronic records will accelerate.

Legislation. Currently, the legislature prohibits electronic transmission unless owners agree to it. This should be reversed. The Davis-Stirling Act should be amended so electronic distribution of notices and documents is allowed unless the recipient requests otherwise. 

Delinquent Owners. When a homeowner fails to pay their monthly assessment, they often blame management because they did not receive a bill. Is that a legitimate excuse for not paying?  -V.

RESPONSE: If, prior to the start of a new fiscal year, proper notice of assessment obligations is given to owners, they are obligated to make payments without further notice. Monthly statements are reminders. It's like paying your mortgage. If you stop paying because you didn't get a reminder, you could lose your unit. Even so, associations should be diligent getting those reminders to owners.

Wearing Masks. Can the board make wearing a mask mandatory once you walk out your door (must wear in hallway, elevator even if no one else is around) and issue fines for those not in compliance? -Geraldine P.

RESPONSE: Yes, boards can adopt emergency rules requiring the wearing of masks. I see this most often in highrise condominiums. They are more sensitive to the spread of the coronavirus and have onsite staff and surveillance cameras in elevators to help enforce the requirements. Also, owners in luxury highrises are often in high-risk categories and want the restrictions in place. Such requirements can be lifted as the threat of contamination lessens.

Problem Patty. We have been working with our legal counsel to review and revise our election rules to comply with SB 323. Our legal counsel advised that based on the new election timeline we would need to push our annual meeting back two months. Now we have an irate member (a regular "Problem Patty") who submitted her candidate form, threatening to sue every board member. She claims the board is engaged in corrupt election conduct aimed at preventing her from running for a seat. What protection do board members have against this type of action? -D.D.

RESPONSE: Annual elections have been disrupted by two disasters. The first is SB 323, which significantly increased election timelines and related costs. The second is the pandemic. If Problem Patty wants to waste a judge's time with a lawsuit claiming a two-month delay is a conspiracy against her, she will be in for a rude awakening. You should continue working with legal counsel to implement SB 323 election rules and then follow them as closely as possible. Otherwise, Problem Patty will look for an excuse to sue if she loses her election to the board.


Updated Chart. Our chart of facility openings county by county will be updated over the weekend and posted on our website. If readers are aware of changes to their county's orders, please contact us.


Concerning a moth infestation perhaps swatting them all day could be another way for entertainment during these isolated days. I think we are in a bunker already but have hope for the future. Thank you for your daily newsletters and your sense of humor during these trying times. -Gloria

No, no, Adrian. Water turning into blood comes before the frog invasion. -Neal

RESPONSE: Followed by a presidential election. This year will be one for the history books.

I always appreciate receiving your bread & butter newsletters. The advice is practical and easy to understand for my boards. Over the years, I have pointed to your newsletter more than once as the definitive answer on some hotly disputed subjects. -V.

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.

Returning to Work

May 31, 2020 0 Views 0 Comments

People are leaving home confinement and returning to work--some with county permission and some without. If the economy has any chance of recovering and association budgets returning to normal, people need to return to work so they can pay their assessments.

Pressure is building on health departments to open association pools and publish sensible guidelines. As reported in our last newsletter, some counties made a smart decision to classify association pools as private so they could open them without violating state closure orders.

We continue to receive reports that some county officials are telling boards over the phone they can open their pools but their websites state they are closed. This puts associations in a terrible position if they open their pools contrary to published orders.
 
The state and many counties are not following the science related to swimming pools and officials are pointing fingers at each other. Following is an edited exchange between one association and their county's health department:

Dear County,

I read the Governor's comments from his press conference a short time ago and also spoke to a representative from his office who was rather rude. She informed me that, per the Governor's press conference, he is allowing each county to move into stage 3 based on conditions within their respective counties. HOA pools are not public and should be allowed to open immediately. Your email said there are no guidelines yet for swimming. The Governor has a press conference and says counties are in control of how quickly they want to proceed into phase 3. My logical conclusion is your Health Department has the authority to allow lap swimming/aqua therapy to take place in HOA pools. Yes? -Manager

Dear Manager,

The state has not indicated when they will release guidelines for opening pools for swimming. Until guidance is released, they are not allowed by state order. Los Angeles County’s guidance may contradict the state's order. There is some ambiguity in the language regarding what is meant by a “public” pool in the state order. -Health Dept.

RECOMMENDATION: The only way to resolve the ongoing mess is for board members, homeowners and managers to pressure state and county health departments to stop pointing fingers at each other immediately classify HOA pools as private (which they are) and allow them to open with sensible CDC guidelines, not draconian ones that make it impossible to comply.

****


Hiring Life Guards. What are your thoughts on HOAs hiring life guards or patrol services to enforce policies related to using our amenities to ensure they are using face masks, social distancing, etc.? -Elise F.

RESPONSE: It depends on your particular county's orders. If they are so restrictive as to require someone in the pool area to act as pool police, then you need to hire someone to control everyone's behavior. Either that or don't open the pool. I don't care for these particular kinds of health directives. Your board will need to consult legal counsel on how best to proceed.

Confusing Order. If LA County has declared HOA pools private, why do they reference “public access” to private pools? They say no guests but the ordinance states public access. Does this invalidate the ordinance? -Adrian M.

RESPONSE: Many county orders are poorly drafted and confusing. It appears that those counties allowing pools to open are doing so for residents only, not guests.

Going Bananas. I read the email about Los Angeles County classifying HOA pools as private. Do we have to wait for Santa Cruz County to do the same? People are going bananas in our complex! -Kelly A.

RESPONSE: Give all your members the name, phone number and email address of your County's Health Department officer. Post it on your bulletin board, the pool gate and your website. That person is deciding for the entire county what you can and can't do. Your members need to direct their frustration toward that person, not the board of directors.


NorCal Counties. Contra Costa and San Francisco pool openings are not expected until mid-August.

El Dorado County rescinded their travel ban to Lake Tahoe but emphasized that people should not come to Lake Tahoe except if they have an essential purpose in doing so.

Lake County issued exceptions to the face covering requirement.

Marin County has a new order allowing motorized access to parks.

Mendocino County has a new order allowing certain “higher risk activities” such as faith-based gatherings, hair salon and barbershop openings pursuant to guidelines and pool usage as previously indicated in the chart with the addition of groups of up to 12 for prescribed pool based physical therapy.

Mono County has a new order related to campgrounds and RV Parks allowing them to open pursuant to certain guidelines, one of which is they shall not advertise that they are open in a way that would promote non-essential travel. It specifically disallows social media advertising or internet posts. The short-term rental ban is still in effect.

San Mateo County now allows places of worship and in-store retail stores to open with restrictions.

Santa Cruz has a new order allowing golf is open pursuant to state guidelines.

Sonoma County pools remain closed.

Yuba and Sutter Counties opened faith gatherings, hair salons and barbershops with restrictions.

Yolo has a new order requiring face coverings, emphasizing personal responsibility..

SoCal Counties. Riverside County is allowing short-term vacation rentals of homes. This does not override restrictions HOAs may have in place related to short-term rentals.

Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 5-31-20. 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.


Thank you for your email updates. -Roger P.

So appreciate your newsletter! -Susan B.

Adrian, your wise counsel and incisive explanation of the complications that COVID-19 has introduced to homeowners’ associations is always welcome! Thank you! -Elaine J.

Thank you again for your ongoing guidance through this crazy time! -Elise F.

Great newsletter and a great educational service you are providing, thanks! -Tim T.

Hello Adams Stirling, I love the great HOA information you provide. -Kyle B.

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.

Counties Bypassing State Orders

May 28, 2020 0 Views 0 Comments

Opening recreational amenities continues to dominate emails to our office (followed by board meetings and annual elections, which I hope to cover next week).

Stage 2 Openings. No counties have yet been allowed to enter Stage 3's relaxed restrictions. All counties remain in Stage 2, which means, according to the State's website, no swimming pools or gyms are allowed to open.

Quiet Disobedience. Despite the State's order, it is clear from various county health directives and news reports that many have decided not to enforce aspects of Governor Newsom's executive orders. Some county supervisors are quietly responding to association inquiries by telling boards and managers they can open their pools. Unfortunately, they are not putting it on their websites.

No Longer Public. In a surprise move, Los Angeles County issued a new order yesterday opening homeowner association swimming pools. Los Angeles is going around Governor Newsom's closure order by redefining HOA pools as NOT public. Public pools remain closed but private HOA pools can open (see summary). Other counties are following suit (see "Covid-19 Updates" below).

RECOMMENDATION: Association boards will need to review pool opening guidelines issued by their county's health department and follow them when opening their pools. If the guidelines are unclear, consult with your association's legal counsel about how best to comply. At a minimum, guidelines will need to be distributed to the membership and posted at the pool.

For those counties that continue to define association pools as "public" and keep them closed, boards should contact their county supervisors to see if they will redefine them as private so they can be opened.


NorCal Counties. Mendocino County is opening pools with access limited to childcare groups, children extracurricular activities and “work groups” for lifeguard training.

Nevada County issued a new short-term rental order.

Napa County no longer requires the lifting cups and removal of flags for golf.

Sacramento County now allows worship gatherings, in-store retail shopping and hair salons and barbershops to open with modifications.

Solano County’s new order reflects the same changes with hair salons and barbershops.

Sonoma County issued guidelines for tennis courts allowing single individuals or members of the same household to use open tennis courts, disc golf courses, basketball courts, pickleball courts, playing fields, boat launches and other shared sports facilities.

Tehama County has taken the position that association and certain other pools are not public pools and can open.

Yolo County opened offices, dine-in restaurant openings, in-store retail, hair salons and barbershops (effective May 28), places of worship (effective May 29).

Santa Cruz County opened offices, dine-in restaurant openings, in-store retail, hair salons, barbershops, and places of worship.

Tuolumne County opened offices, dine-in restaurant openings, in-store retail, hair salons and barbershops, and places of worship.

Fresno County, Lake County, Napa County, Nevada County, El Dorado County, Butte County, and Shasta County are opening hair salons and barbershops with modifications according to a press release. These are the only updates for these counties and no information has been added to the chart. Mono, Yuba and Sutter Counties all seem to be evaluating whether to open these businesses.

Tulare County has a press release indicating that places of worship and in-store retail shopping may open but does not mention hair salons or barbershops.

SoCal Counties. Imperial County issued an amended health order allowing places of worship to open.

Los Angeles County is now allowing drive-thru events and vehicle parades and homeowner association swimming pools.

Orange County requires facial coverings for persons over two years old when in the public, at a retail, commercial, or at work, or at a residence when a person is not a member of a household and cannot maintain six feet of social distance. It also issued strong recommendations of social distancing, and if 65 years or older or have serious underlying medical conditions or compromised immune, should remain home. 

Palms Springs removed any language that might prevent the opening of HOA pools for the hot summer months. It opened their Dog Park on 5/23, which requires social distancing and face coverings. Hotels and vacation rentals for leisure/vacation purposes are prohibited but allowed for essential workers assisting with the pandemic.

San Bernardino County opened pools for HOAs, condominium complexes, and mobile home parks. 

San Diego County added restaurant protocols and opened places of worship. Swimming pools remain closed as of the 5/26 order.

Santa Barbara County issued an order effective 5/27 requiring facial coverings for anyone over the age of 13 when at a business, public transportation or health care facility.

Ventura County now allows concessions, restaurants and pro shops to be open at golf courses.

Updated Chart. For a list of county restrictions and links to their orders, an updated chart is POSTED ON THE WEBSITE.


What a Mensch you are! As you know, I read your newsletter all the time. It’s wonderful and so are you! I truly admire your dedication to sharing so much information with your clients and anyone else who signs up including HOAs that are NOT your clients. I recognize the Herculean effort that must go into publishing the newsletter with such frequency; my hat is off to you! -Susan K.

Hello Adrian, thank you so much for your diligent coverage of the Coronavirus issues in your newsletter. Your words have been so helpful to thousands of Californians. -Chris

Love your newsletters, and the way you wade through this muck. -Scott W.

Adrian, I used to belong to the board of a condominium association but recently moved and am still reading your newsletters. Do I need professional help or are these newsletters that good? Thanks for all you do for HOAs. -Tim S.

Your website and newsletter and website are a wonderful source of information and well-considered opinions, not only during these troubling times. -Paula 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.

Reducing Covid-19 Liability

May 26, 2020 0 Views 0 Comments

A number of readers asked if their association could be sued if they opened their recreational facilities and someone catches the virus. Lawsuits are always possible but unlikely if boards are reasonable about when and how they open their facilities.

Purpose of Lockdown. The whole point of the nationwide lockdown was to slow down the infection rate so hospitals would not be overwhelmed. That has been achieved. Clearly, the virus will continue to spread through the population as restaurants, stores and hair salons reopen. Fortunately, hospitals now have the equipment and supplies they need to handle any additional outbreaks.

Options. People want to return to normal and many are pressuring boards to open their recreational facilities now. Boards have three options: (i) open facilities despite stay-closed orders, (ii) wait until restrictions are lifted, or (iii) continue to keep facilities closed even when restrictions are lifted.

Lowest Risk. Keeping everything closed even when restrictions are lifted has the lowest risk because no one can claim they caught the coronavirus due to some alleged negligence by their association. However, keeping facilities closed until there is zero chance of anyone ever catching the virus is unrealistic. It means keeping everything closed until a vaccine is developed (assuming one can be found) and everyone in the association is vaccinated (an unlikely occurrence). Besides, members would not tolerate keeping facilities closed indefinitely.

Highest Risk. The option with the highest risk is to open facilities while stay-closed orders are still in place. If someone catches the virus and claims it occurred while the facilities were open in defiance of a health directive, it makes it harder to defend the board's actions. Also, the association would probably not have insurance coverage because the board's actions were contrary to an executive order and because most policies have an exclusion for communicable diseases.

Better Approach. The safer approach is to wait until applicable jurisdictions lift their stay-closed orders. At that point, associations can legally open their facilities. Then it becomes an issue of following reasonable guidelines. At a minimum, associations should adopt and post guidelines published by the Centers for Disease Control (CDC). If state, county or local guidelines are published, boards will want to implement those as well.

Reduced Litigation Risk. If boards open their facilities in compliance with health department directives and follow published guidelines, it significantly lowers the risk of lawsuits being filed against the association. If someone were to sue alleging they contracted the virus from the association's gym, swimming pool, or clubhouse, proving causation will be a problem. How do they prove they caught it from the association's facilities and not the grocery story they just visited? Also, if the board followed applicable guidelines, how do they prove negligence?

Hold Harmless Agreement. Although not necessary, boards could lower the risk of litigation further by requiring signed hold harmless agreements before residents use common area facilities. It creates another barrier for plaintiffs to overcome if they hope to win an award of damages.

RECOMMENDATION: It is not possible for associations to keep common areas virus-proof. There is an inherent risk of exposure to the virus in any public place where people gather. All boards can do is reduce risk by taking reasonable precautions. To that end, boards should work closely with legal counsel as stay-closed orders are lifted and facilities reopen.

At some point, enough people will have contracted the virus that it will have nowhere to go and will die out. Then we can return to more mundane risks related to water damage, mold, slip and falls, harassment, political campaigns, and the like.


Updated Chart. An updated chart will be posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Great newsletter and your content and opinions are GREAT! -Maureen C.

I want to tell you that I love your newsletter, the content and advice has been very helpful on numerous occasions. -Shelly S.

The phone number for the Governor’s Office is no longer in service. It appears the “NO LONGER IN SERVICE" applies to more than just his phone number. -Bob C.

Thank you for all your helpful information about annual elections and how to best survive the Marjorie Murray train wreck. -Bill B.

I love your newsletters. Even though I feel I should already know the answers to 90% of the questions before I read them, I get only about 75% correct (and am consistently humbled). Keep up the great educational work. -Randy W.

Thanks for your newsletter! -Gregory H.

Adrian, Thank you so much for the informative newsletters that make our mornings. -Rick B.

Adrian, I want to thank you for the service you provide with your newsletter publications. Our board members are all now reading it and we have been SO enlightened on many subjects. -Sam 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.

Continued Confusion Over Pools

May 22, 2020 0 Views 0 Comments

Supervisor Confused. I contacted the OC Healthcare Agency today inquiring as to directives on pool closures for HOAs. Rita (supervisor for HB, Seal Beach, Costa Mesa) confirmed that the current situation is confusing indeed.

RESPONSE: Governor Newsom's refusal to allow counties to make their own decisions is creating confusion and potential liability for associations that open their pools pursuant county authorizations.

Override County? Do HOAs have the authority to override the county’s guidelines? Ventura County will soon allow pools to be open but my board refuses to do it. -Mauricio B.

RESPONSE: The county is not ordering the opening of pools, it is giving permission. It's up to each association to decide whether or not to open. The problem is Governor Newsom's standing order that pools must remain closed. It does not matter that the county says yes if the state says no.

Orange County. OC Healthcare Agency will not close any pools even though the state requires it. It is up to the HOA on whether to close or open. -David J.

RESPONSE: More evidence of confusion and growing civil disobedience created by conflicting jurisdictions.

Public Pools. On the chart under Los Angeles County, POOLS is listed as Closed. Does this mean pools accessible to the public? What about Condo Association pools, available only to residents.? -Marilyn B.

RESPONSE: It includes HOA pools. See next email.

HOA Pools Deemed Public. Today, I spoke with a representative from Governor Newsom's office, a LA Public Health Officer and the LA Recreational Waters Department. The State considers all pools that are ACCESSIBLE to 3 family units or more, to be PUBLIC pools. -Stuart H.

Santa Barbara. Public pools and spas located outdoors, including those in a home owner’s association (HOA), apartment complex, hotel, motel, country or private club, county or city pool, and gym or fitness club may allow individuals of one household at a time, limited to six individuals from the single living unit, to swim, or to use the deck area and pool restrooms and showers. -Leila F.

San Diego. I was told that the San Diego County Health Czar has ruled HOA Pools to be classed as Community Pools for enforcement of COVID-19 rules. -Bob C.

San Bernardino. I called San Bernardino County on Monday, 5/18, and the staff person confirmed that San Bernardino County is still ordering HOA community pool closure. -Debra G.

Governor's Office. The number given in your email for the Governor’s Office has a NO LONGER IN SERVICE message. Phone: (916) 445-2841. Thank you. -Roger P.

RESPONSE: That's annoying. That is the phone number listed on the Governor's website. It's also the number listed on multiple other websites. You should try it again.

RECOMMENDATION: Governor Newsom is creating liability for associations that open their pools pursuant to county guidelines. One size does not fit all. A blanket prohibition against the opening of pools in California while simultaneously allowing hotels to open their pools makes no sense at all. The Governor needs to delegate that authority to counties where it belongs.


Send an Email

Send a letter
Governor Gavin Newsom
1303 10th Street, Suite 1173
Sacramento, CA 95814

Call and Fax the Governor
Phone: (916) 445-2841
Fax: (916) 558-3160


COUNTY ORDERS. Some health department orders contain detailed requirements while others are vague and poorly written. Boards should carefully review applicable health department orders and consult with legal counsel on when and how best to open their facilities.

NorCal Counties. Fresno County’s Attestation has been accepted. Fresno County has a new order which is no more informative than it’s prior Order. The City of Fresno’s order will be coming soon according to their website and should hopefully provide more guidance.

Lake County’s Attestation has also been accepted. They also have a new health order, which does nothing other than allowing Stage 2 businesses to reopen and making face coverings required with some exceptions.

Mendocino County’s Attestation has been accepted. Mono County’s Attestation has been accepted. They have an amended short-term rental order which clarifies that the State Order on this topic is to be followed.

Napa County’s Attestation has been accepted. The only update is the expansion of business openings. Sacramento County’s Attestation was accepted. They indicate that outdoor gatherings of no more than 10 people social distancing are allowed.

Solano County’s Attestation was accepted. They also updated the Exhibits B & C to their Order, these deal with social distancing protocol and allowable business openings. I added the link to the new Order.

San Mateo County has a new face covering order that I put in the face covering column. Stanislaus County’s Attestation was accepted. Tulare County has a new Order from 5/18 that I just found. It does not seem to change anything other than stating that it will track to the State’s Orders. Yolo County’s Attestation was accepted.

SoCal Counties. No changes to report for SoCal counties.

County Chart. For a list of county restrictions and links to their orders, see an updated chart posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Thank you so much for your website, your newsletters, your act, and your selflessness in providing us with such important knowledge and information, simply because you are good people. You are greatly appreciated. -Stuart H.

Thank you for all the valuable information you provide. I thought this may be of interest: Guidance for Reopening Buildings After Prolonged Shutdown or Reduced Operation. -DeeDee G.

Good stuff. Thank you! -Patrick O.

Still laughing at your proposed vacation location. Thank you for your most informative newsletter and your wonderful sense of humor. -Sue P.


Black humor Adrian!! Keep it up. ;-) -Skip D.

Enjoy your Wuhan vacation break, have a bat for me!! Enjoy and will miss your daily briefings. -Larry D.


Always grateful for your advice and humor. -Guy T.

I’ve been reading your newsletter for years and it’s always packed with useful information and sly humor. -Louis S.

My goodness!! Your response about vacationing at Wuhan was hilarious. I was drinking coffee and I couldn’t stop laughing--worst combination haha! -Maria R.

We thought we escaped to Iowa for a few days to attend to some family matters there. We reserved our hotel weeks in advance at Storm Lake. We went to check in, but were unable to because we were from California. Imagine that...Iowa not accepting Californians. We steamed and schemed in the parking lot a while then were provided quarters in an old bunkhouse at the in-laws farm. -Bill L.

Adrian, On your way back from Wuhan, could you please bring us some bat wings, with sauce? -M.S.

Adrian, I will loan you my mask for your trip to Wuhan. I've worn it for two months and have not caught the virus, so it must be a good one. -Neal

You call 2 weeks in Wuhan China a vacation? Stay safe. -Arnold

Dear-dear Adrian, I deeply admire your level of dedication, good man. You have not only graciously stepped up your level of commitment to your readership by sending DAILY email updates, but you also are now taking yet further steps to help all those around you by vacationing in Wuhan, China. I cannot thank you enough. Just don’t forget to bring that extra suitcase for vials of the COVID-19 antibodies. -Donald 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 associations only.

Confusing Pool Information

May 20, 2020 0 Views 0 Comments

Even though the Centers for Disease Control (CDC) has not recommended closing swimming pools, Governor Newsom did so on the state level.

This has created significant confusion for counties throughout California as they begin loosening restrictions. California's website has the following:

 


The State does not define "public" pools. Does it include community associations? Most counties believe it does. But not all. Currently, County Health Department orders fall into three categories:

1. Pools Are Open. Some counties follow the science and quote the CDC that there is no evidence that COVID-19 can be spread by pools or spas. They lifted restrictions on community association pools.


2. Defer to the State. Many counties on our chart show pools as closed because these counties defer to the state rather than publish their own orders. That means their pools are closed. Even so, confusion reigns because information about pool closures is very difficult to find on the their websites and does not show up in word searches.

3. Mislead the Public. The worst ones, like Orange County, state that association pools can open, provided they comply with Executive Orders from the State. The problem is the state has declared them closed. Calls to the County's Health Department result in contradictory instructions. I received a number of emails from owners who talked to OC officials assuring them pools were open. Following are a few of the many emails I received about confusing county orders:

Pools Are Open. Weeks ago I the individual overseeing Huntington Beach, where our HOA is located. They assured me there was no directive to close HOA pools from the state or county. They also agreed that the City of Huntington Beach had no orders concerning HOA pools. However, Orange County was surprised when Governor Newsom for the first time last week mentioned pool reopening, and they quickly drew-up some guidelines. This is very confusing. -Mason T.


Pools Are Closed. I contacted the OC Health Department via email & phone. Lorena told me on the phone thatOrange County goes by state directives and public pools are still closed. We are considered a public pool in their eyes, as opposed to private. -Norm P.

Vague Verbiage. San Diego County has vague verbiage regarding HOA facilities. Our pool and tennis courts remain closed but many board members want to open them. I understand other county recommendations suggest they can open if they can maintain separation, schedule usage, and restrict usage based on households. -Will N.

Ambiguous & Confusing. San Bernardino County is a bit confusing, and some of our residents are getting angry. Our board continues to monitor and rely upon county orders, which have become increasingly ambiguous. Our fallback is the FAQ page, which still shows community pools as closed. -Debra G.


RECOMMENDATION: The State's handling of the situation creates potential liability for associations. Readers should email and telephone Governor Newsom and urge him to immediately open community association pools (or at least delegate the decision to the counties). You should also urge members of your association to do the same.

Send an Email

Send a letter
Governor Gavin Newsom
1303 10th Street, Suite 1173
Sacramento, CA 95814

Call and Fax the Governor
Phone: (916) 445-2841
Fax: (916) 558-3160


COUNTY ORDERS. Some health department orders contain detailed requirements while others are vague and poorly written. Boards should carefully review applicable health department orders and consult with legal counsel on when and how best to open their facilities.

NorCal Counties. Alameda County has a new order allowing low-risk Stage 2 businesses to open. It clarifies that tennis may open following social distancing and restrictions for members of the same household or members of different households with singles tennis. They also added a vehicle based gathering order.

Contra Costa County has a new order leaving tennis and golf open following restrictions. It also allows low-risk Stage 2 businesses to open. San Francisco County has a new order. Tennis courts still appear to be closed under this order. Santa Clara has a new order effective 5/22/20. The only thing that appears to change is allowing Stage 2 business openings.


SoCal Counties. San Luis Obispo County allowed their health order lapse and now are following the state’s order with exception to a new May 17 short-term rental order for short-term rentals to operate at 50 percent occupancy for hotels, motels, B&Bs, RV Parks, campgrounds, residential vacation rentals and homestay. It prohibits persons who are staying for fun or leisure, but allows rentals to accommodate essential workers, displaced persons, homeless in need, persons needing to self-isolate or quarantine, or to vulnerable persons who reside in the county. Community association pools can open with guidelines.

Updated Chart. For a list of county restrictions and links to their orders, see 5-20-20 CHART OF COUNTY ORDERS. An updated chart is posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, contact us.


Adrian, what are you going to do with all your free time when you no longer have to issue a DAILY newsletter? Keep up the good work. -Michael H.

RESPONSE: With today's mailing, we crossed the 1 million mark on the number of newsletters distributed since the start of the pandemic. I plan to take a much needed vacation. I will spend a couple of weeks in Wuhan, China. 

Keep up the great work!! -Margot B.

Thanks for your informative emails. They are extremely helpful. -Debra G.

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.

Opening Swimming Pools

May 17, 2020 0 Views 0 Comments

Orange County Pools. We are getting mixed messages from the Orange County Health Care Agency and it is really annoying. In its May 7 guidelines, the Agency states:

Many property managers and homeowners’ associations (HOAs) have chosen to close pools, spas and barbeque areas in an effort to slow the spread of COVID-19 and protect residents. When an HOA, property management company or property manager opens their pool upon State Order modification, the guidance below should be followed...

The Agency wrote the order as if pool closures were voluntary. They weren't. The guidelines then state that when an HOA opens their pool "upon State Order modification" it should follow the County's guidelines. What does that mean? The State's order is vague and says nothing about swimming pools. If you search hard enough, you can find pools referenced in guidelines for hotels: "Hotels with pools should ensure that physical distancing requirements can be enforced, this could include limiting one person per lane in swimming pools." (The information is buried--it's a single bullet point in a 10-page document.)

In a telephone call with Orange County's Health Agency, an official said HOA pools could open if they limited usage to 5 people at a time from one household (if they are all in the same household, why limit them to five?), no outside guests, and no sun bathing (if people maintain social distancing, why no sun bathing?). Pool and spa use is limited to 30 minutes if someone else is waiting to use the facility (the state has no such time limit).

It should be noted that none of the guidelines issued over the phone are on the County's website or in the State's orders. This is incredibly frustrating.
How are boards supposed to know what to do? Orange County's Health Agency is creating potential liability for associations by being unclear what associations are allowed to do.

RECOMMENDATION: I recommend homeowners, board members and managers call and email the Health Agency. Talk to an official, get their name and title and follow-up with a written confirmation of whatever they tell you. It's known as a CYA letter and you will need it if there is any blowback for following their oral instructions. Here is their contact information:

    Telephone: (714) 433-6000
    Email: [email protected]

I'm curious to know if they even give the same instructions to different associations. Let me know what you find out.

Riverside Pools. Our community has 5 unstaffed pools and are struggling with how to open them following the Riverside County guidelines. Do we need to hire a full time staff to monitor the pool and sanitize everything periodically? Or, can we post all the guidelines and tell residents to use at their own risk? Some of our members are frightened we will be sued for millions if we open the pools before the end of the pandemic. -Lloyd A.

RESPONSE: Riverside County has the best guidelines I've seen. Kudos to their health officer Dr. Cameron Kaiser. Please send him an email thanking him for following the science and publishing sensible guidelines without sending people to the State's website on a wild goose chase. The Health Department specifically included homeowner associations and made it clear the guidelines "are guidelines and not requirements for community pool operators."
By publishing clear guidelines, Riverside provided a road map for boards do open their pools in a way that minimizes potential liability.

RECOMMENDATION: If associations open their pools, they must do so in a non-negligent manner. Boards in Riverside County should talk to their association's legal counsel about how best to follow the County's guidelines if they decide to open their pools.

MORE QUESTIONS ABOUT
SWIMMING POOLS


Public vs Private. In your 5/15/20 newsletter, you state that HOA swimming pools are private not public. US Legal says that they are considered public. Which is correct? -Suzanne Z.

RESPONSE: In this case, we are both correct. HOA pools are not open to the public. They are for the private use of association members and their guests. However (and this is a big however), they are sometimes defined as "public" for regulatory purposes.


It depends on the particular issue whether HOA pools are considered public or not. When it comes to ADA regulations, they are not public. When it comes to safety devices, chemical testing, and signage, they are defined as public. Do so makes it easier for officials to impose blanket regulations. They don't want to create a separate category of regulations for private swim clubs and homeowner associations. They simply define them as public for purposes of their regulations.

One Person at a Time. Our county opened spas but limits them to one person at a time. Does that mean husband and wife cannot use it at the same time? -Martin F.

RESPONSE: Many state and county orders are irrational. They don't follow the science. If two people live in the same household, they are not going to give each other the coronavirus by being in the spa at the same time.

Emergency Rules. The precautions boards need to take require new rules, correct? If this requires new rules don’t they need to go out for a 28-day comment period before taking effect? At this rate the summer will be half way over. Can boards bypass the comment period because this is a health emergency? -Kim D.

RESPONSE: Yes. If boards adopt emergency rules, they can skip the comment period. Per the Davis-Stirling Act, if boards determine that an immediate rule change is required to address an imminent threat to public health or safety, they can make a rule change without a 28-day waiting period. (Civ. Code §4360(d).)

Jurisdictional Issue. We have one board member who believes that since HOAs are private the LA County Order to close tennis courts and pools does not control associations. Further complicating the issue is that local authorities have decided not to enforce county orders on private lots and communities. -Beth R.

RESPONSE: Your board member is mistaken. Governmental authorities have the power to regulate private communities. Los Angeles County ordered the closure of all multi-family residential swimming pools. That includes condominium associations. Association boards are obligated to comply with county orders even if local authorities refuse to enforce the county's orders. The jurisdictional disputes between state, counties and cities is creating a mess.

With counties, cities and the state pointing fingers at each other, it's incredibly difficult for boards to know what to do. When it comes to our clients, we are NOT advising them to ignore applicable health department orders. Doing so would create legal exposure for boards.
You should check with your association's legal counsel, they may have a different opinion.

COMMENT. By keeping pools closed, some county health departments are ignoring the science. Associations in counties that continue to keep them locked down should encourage their members to call their county supervisors. It wouldn't hurt to call the governor as well. It's time they opened swimming pools with rational guidelines like those published by Riverside County.


COUNTY ORDERS. Some health department orders contain detailed requirements while others are vague and poorly written. Boards should carefully review applicable health department orders and consult with legal counsel on when and how best to open their facilities.

NorCal Counties. Marin County issued new orders effective 5/18. Golf courses may open with restrictions. Pools, gyms, and dog parks remain closed. They provide no specific guidance but it appears tennis is open to members of the same household. Motorized access to some parks is now allowed.

Mendocino County has a new order opening more Stage 2 businesses. It still provides for the same recreational facilities but establishes clear guidelines for their operation.

San Mateo issued a new order effective 5/18. There are limitations on park, beach and trail access. It opens pools and tennis courts if actively monitored and managed to ensure (i) they are only used by members of same household or (ii) with social distancing, face coverings and other Health Orders enforced. Spas remain closed.

Although Shasta County’s website still indicates pools are closed, one of our readers sent a letter from the County indicating that public pools may open subject to restrictions. Spas remain closed.

Contra Costa County has a new order that allows vehicle-based gatherings. Fresno County requested permission from the State to move to Stage 2 business reopening. Sonoma County has an amended order that only clarifies Stage 2 openings. Tuolumne County’s new order clarifies Stage 2 openings. Yolo County’s only updates Stage 2 business openings.


SoCal Counties. San Bernardino rescinded their public health order on May 8. They are now following the state’s health orders (which, at best, are ambiguous).

Updated Chart. For a list of county restrictions and links to their orders, see 5-17-20 CHART OF COUNTY ORDERS. An updated chart is posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.


Can you publish Marjorie Murray’s email and phone number so we can email/call her and discuss her interpretation of SB 323? -Jim F.

RESPONSE: The following information is from the organization's public filing:

    Marjorie Murray, CEO
    Center for California Homeowner Association Law
    3758 Grand Avenue, #56
    Oakland, CA 94610
    [email protected]
    (855) 648-4043


Your professionalism and humor, always makes my day! -Patricia D.

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 Changed

May 15, 2020 0 Views 0 Comments

QUESTION. I had a recent back and forth with Marjorie Murray. She is stating that the law regarding independent third party inspectors of election has not changed. This is getting confusing. -Robert

RESPONSE: I hope that's not what Marjorie said because it's not true. Her organization's SB 323 amended Civil Code 5110(b) to remove language that previously allowed associations to use anyone under contract with the association to serve as inspectors of election. Many associations used their management companies for that purpose because it was cheaper and, in some cases, built into the management agreement.

Not only that, SB 323 made the election process so long and complicated that it is difficult for associations to find volunteers willing to serve as inspectors. As a result, associations are forced to hire professional inspectors of election, which drives up election costs.

VOTER LIST. What is the voter list and what information is included in the list? Is the association required to provide it to the membership for review and comment? We have almost 500 units. Does everyone get to see everyone else’s information? -Wienke T.

RESPONSE: As required by SB 323, associations are now required to create a voter list with every member's name, voting power and the physical address of the person's separate interest or the parcel number or both. The voter list must also contain the mailing address for the ballot if it differs from the physical address of the voter’s separate interest or if only the parcel number is used. (Civ. Code §5105(a)(7).)

Verification of Information. The statute does not require publishing the voter list, only that members have an opportunity to verify the accuracy of their individual information. That means associations can include a statement in their pre-ballot election notice that it prepared a voter list that contains each member’s name, voting power, address, etc. The statement should tell members how to verify the information and a specified time frame for doing so.

Inspector of Elections. The statute does not require the inspector to prepare the voter list, only that he/she retain it and correct any information within two (2) business days of receiving notice of errors. Management can prepare the voter list and provide it to the inspector, along with any corrections.

Floor Nominations. Our bylaws state that nominations may be made from the floor at the annual meeting. If that is the case, is that when we start the voting process? Meaning, do we start our 105-day process at that time? Or, do we eliminate nominations from the floor in our new election procedures? -Myrna W.

RESPONSE: I understand the confusion. The poorly drafted SB 323 requires a string of requirements related to nominees. Unfortunately, the bill's drafter forgot to waive them for write-ins and floor nominees. If you strictly followed the language of SB 323, you would be in an election cycle for six (6) months or longer.

The voting process starts when ballots hit the mail. If balloting is still open on the day of the annual meeting, nominations can be made from the floor (if your documents provide for them) and anyone who has not yet cast a ballot can vote for the new nominees if they so choose.

Recommendation. I recommend getting rid of floor nominations and write-in candidates. Doing so eliminates some of the problems created by internal inconsistencies in SB 323. It also allows you to avoid problems if your association adopts language for uncontested elections.

Cumulative Voting. In a prior newsletter you recommended that HOAs do away with cumulative voting and I heartily agree. Our builder finished construction and is no longer in the picture so at this time we only want to remove the cumulative voting requirement and nothing else even though there are other things that need to be revised. Is it possible to remove only the cumulative voting from our governing documents and not revise anything else? -George

RESPONSE: Yes, you can eliminate cumulative voting and leave everything else unchanged with a simple amendment. We prepare them on a regular basis for the associations we represent.

OPENING
RECREATIONAL AMENITIES
 

Hold Harmless. For those who are opening facilities using county guidelines but are still concerned about potential liability, we have been drafting hold harmless agreements for residents to sign before using the pool, gym, etc. Boards should talk to their legal counsel about this extra layer of protection. -Adrian

Face Coverings. We are a senior community and have members who are short of breath (chronic non-infectious heart or lung problems) and cannot tolerate a mask. San Diego County does not require these people to wear a mask--they might faint from lack of oxygen. -Elaine J.

Taking Temperatures. Thank you for the Fantastic information you continue to deliver. How is it that taking people's temperature before they can access a facility of any type is not a violation of HIPAA? On what legal basis are they doing this? -Elise

RESPONSE: It's one of the many rights we lost during the pandemic. Fortunately, it is temporary. At some point freedoms will be reinstated, most jobs will be restored, and the wearing of masks, social distancing, and taking of temperatures will stop. Hopefully, sooner rather than later.

 

COUNTY ORDERS. Some health department orders contain detailed requirements while others are vague and poorly written. Boards should carefully review applicable health department orders and consult with legal counsel on when and how best to open their facilities.

NorCal Counties. California's Resilience Roadmap clarifies that public pools and community centers are not permitted to open at this time. We revised the pool section of all Northern California counties indicating that public pools are closed.

We added Calaveras County’s most recent press release as it indicates the same limitations noted above. We added Sutter and Yuba County Phase 2 Attestation Links. Links for Tehama County were added which indicate public pools are closed as are gyms.


SoCal Counties. San Diego County continues to have one of the worst health department orders for ambiguity. Their May 10 order states, "To enhance recreational opportunities in the county, private and public golf courses and, other than public or private outdoor recreational facilities (other than community pools per State order), including recreational equipment (such as bicycle, boat, kayak, equestrian and surfboard) rentals may be open for limited use." What does the double negative mean? Also, homeowner association pools are not open to the public. They are private. Do they qualify as "community pools"? Apparently so. The County has instructed police and sheriffs to enforce pool closures at homeowner associations.

Los Angeles County issued a revised order that
pools, hot tubs, and saunas remain closed but opened beaches parks, trails, tennis and pickleball courts archery and shooting ranges, equestrian centers, model airplane areas, community gardens and bike parks for recreational activity. All gatherings of non-household members are still prohibited. That means social events in parking lots, barbeques, and other outdoor gatherings of non-household members at the association are still prohibited. However, in-person health and substance abuse therapy support groups such as AA meetings of up to 10 people are allowed, provided social distancing measures are followed.

Orange County has deemed all homeowner association pools to be "public" and has ordered them closed.

Updated ChartFor a list of county restrictions and links to their orders, see County Orders as of 5-15-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. Please contact us with any updates we missed.


Thanks again for a great newsletter and for pointing out that it is not legal advice. We should all know that. I have never gotten legal advice from an attorney that could crack a joke, you might be the exception. You often reference Civil Code and that makes it easy to do some research that we can bring to legal counsel for evaluation. -Finn M.

I appreciate receiving all your updates, and I and my staff certainly enjoy using your website on a daily basis. Thank you for all you do for the CID world. -Dave B.

Your newsletter has been a valuable source of information during this unique time in our lives and your levity is both appreciated and welcomed. -Michelle B.

Got a kick out of “First Lady”, though I have a number of folks who refer to me as “Madame President”, which I think is pretty funny too. Always read your emails, first thing and they brighten my day! Thanks for all the info. -Donna G.

Thank you for posting the updated guidelines today. I re-posted the link on Nextdoor.com and on Facebook. Free, almost, at last…. Yeh! And not much thanks to the governor who is medically illiterate. -M.

Great newsletter. Appreciate your work about SB 323. My medium size association just paid $1,100 for new election rules. With 55,000 associations in California, that means the people need to spend $60 million to comply. -Henry C.

RESPONSE: Your projection is probably high but it's clear that Marjorie Murray's organization has cost community associations millions of dollars complying with the bills sponsored by CCHAL. There are efforts underway to undo some of the damage but it will be next year before any bills can make it through the legislature.

Your communications are always valuable and worthwhile, but this recent one is particularly stunning. -F.G.

I love your newsletter. It's so very helpful. -Charles M.

Hello to your great staff at Adams Stirling, Thanks for your very helpful newsletter. Our board members read it constantly. -JoAnne

Thank you for your newsletter. Regarding the Davis-Stirling Act, any relation? -Stephen J.

RESPONSE: Yes, the Hon. Larry Stirling, author of the Davis-Stirling Act, is the same one in ADAMS | STIRLING. He is accomplished, incredibly knowledgeable, and a wonderful partner.

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.

Mentally Unstable Owners

May 13, 2020 0 Views 0 Comments

Compulsive Watering. We have a homeowner who is mentally unstable, has frequent outbursts of abusive language, and compulsively waters common area to the detriment and destruction of the property. She will water for sometimes 5 hours, going over and over the same areas. We all pay the water she wastes. Can we get a court order to keep her from watering, stealing our money? -Lori C.

RESPONSE: Dealing with a mentally ill resident is one of the hardest things for boards to handle. Yes, you can go to court but it's been my experience that judges are reluctant to issue orders unless you can show that you made every effort to resolve the matter on your own.

Disciplinary Action. Even though the following will likely not work on a person with mental illness, have management send a warning letter, followed by a request for internal dispute resolution, followed by a hearing and fines, then a lawyer letter threatening legal action. If none of this stops her behavior, then go to court for injunctive relief. Even a court order may not work. Depending on the level of her illness, she may not be able to help herself. 

Plumber. Another possible solution is to talk to a plumber to see if her use of water can be restricted, perhaps with a timer for particular times of the day and/or a restriction on the volume of water from the spigot. If you can't get access, perhaps that is what you seek in court--access to her patio to make plumbing changes to restrict her excessive watering.


Cyber Bullies. How does a board handle cyber bullies who inundate directors and management with a string of emails complaining about closure of common area amenities and tree trimming. This homeowner sends countless emails demanding immediate attention without any regard to committee schedules and board meetings.

She is angry and causing a rift within our community as she copies other residents who chime in. Her actions are sucking the oxygen out of the room with no end in sight. -David C.

RESPONSE: I put cyber bullies in the same category as the mentally ill. Tell your compulsive emailer that her emails will be blocked by directors and management. If she wants to send a written communication, she can put it in a letter and send it to management. Let her know her letter(s) will go in board packets and will be read by directors once a month.

Your compulsive emailer will only gain traction with members if they think the board is not doing its job. To head that off, send monthly newsletters to the community updating them on maintenance projects and anything else of interest. Send additional letters as-needed about special projects.

If members are satisfied the board is taking care of business, your emailer won't be able to stir up very much trouble. She will always have a small following of malcontents but there is nothing you can do about them. Just make sure the membership as a whole is satisfied with the job you're doing.

Restraining Order. In an unpublished case last month, an HOA resident obtained a restraining order against another resident due in part to what the court determined were numerous unwanted emails about the plaintiff (~300 over 7 months) “on issues that were mundane and designed to simply inflict distress/harassment.” The trial court ordered the defendant not to harass or contact the plaintiff.


Guests and the ADA. Our clubhouse and recreational areas are only open to members and their guests. Would this qualify as inviting the public into the development? -Bob C.

RESPONSE: No, members and guests are not defined as the public. A residential common interest development is a private community and normally not subject to the requirements of the Americans With Disabilities Act. Only when an association invites the public into the community, such as holding swimming meets, setting up polling stations, etc., does an association become subject to the Act and only in those areas where the public is invited. 

Commercial & Mixed-Use CIDs. Commercial CIDs that deal with the public, such as doctors, lawyers, retail outlets and food outlets, are subject to  ADA requirements. The same is true for the commercial elements of mixed-use associations.

RECOMMENDATION: If boards are unclear about what laws apply to their community, they should have legal counsel provide them with a written opinion.

SECURITY CAMERA
ISSUES


26 Cameras. We use ADT and have 26 cameras. We use a phone app and any resident can check the cams. Works great for when deliveries are made and you want to see who's at the main entrance before a resident buzzes them in. -Joseph L.

Petty Criminals. Our condo building has experienced its share of break-ins over years but we had two in the past two weeks! We have 12 cameras and, in my experience, burglars never care about being caught on camera. Now they're wearing masks (which I assume is to comply with  coronavirus orders). Luckily, they have itchy faces and constantly pull down their masks on camera. One even took time to adjust her hair in our lobby mirror. They are petty criminals who target mail boxes and unlocked vehicles. The latest pair had knowledge of how to hot wire our intercom system to open the front door. We are concerned about the situation escalating. -Paul Y.

RESPONSE: It's time to upgrade your security system. Also look at your lighting and gate controls. Members generally support increased security and will pay a small special assessment to make their homes safer.

Children on Camera. My HOA has many security cameras, some of which are trained on the pool area which is used by families including children. Some members have expressed concern that unregulated access could lead to these videos or photos being uploaded to the internet such as porn sites or downloaded to personal computers. To protect the HOA and its employees, is it a good idea to have the videos protected by passwords and have policies which restrict who can view them and under what circumstances? -Rudy K.

RESPONSE: You should talk to a security and IT consultants about how best to protect your cameras from abuse. Also talk to legal counsel about your concerns.

Hot Tub Camera. Can we post a security camera in the hot tub area? -Debra

RESPONSE: Yes. A number of our clients over the years have installed them, along with signage, to discourage sexual activity and alcohol consumption in hot tubs. In my experience, members do not like the idea of getting into a spa with other bodily fluids floating in the water. You should talk to a security consultant about camera placement to minimize intrusion while still accomplishing your goals.

REOPENING
CLUBHOUSES


Clubhouses. Since many associations have clubhouses, what restrictions do you foresee for using the facilities? -Lisa P.

RESPONSE: I don’t believe any state or county orders have yet  issued guidelines for clubhouses. If they don't, boards can adopt their own to fit the needs of their community.

Senior Communities. Senior communities will be most vulnerable, so they will want to take special precautions such as installing sanitizer dispensers at key points around the clubhouse, handing out masks to anyone who does not have one, spacing out furniture to ensure social distancing, removing chairs and small tables where people might want to play cards or assemble puzzles, regularly wiping down surfaces, propping open doors so people don't have to touch handles
(don't prop open fire doors), putting signs on elevator and restroom doors limiting the number of people in each, budgeting more money for thorough cleaning each night (instead of just picking up trash), installing higher grade air filters, not supplying coffee or other drinks that require people to touch the same surfaces. Some might want to take the temperature of people entering their clubhouse. There may be other measures appropriate to particular clubhouses that boards will want to implement.

Dining Areas. Clubhouses with dining areas will want to limit the number of people in the area, space out tables, remove all menus and condiments from tables, etc. For guidelines specific to restaurants, see what has been published for restaurants in your area and follow them.


Family Picnic. A neighbor received a letter chastising her family for having a picnic in our courtyard. They were socially distancing and all had masks if anyone else came out. Isn't this a bit too crazy? -Michell

RESPONSE: Common sense seems to be in short supply. Household units are already living together. Telling them they cannot sit together outside is a bit much. That's as bad as Los Angeles Mayor Garcetti refusing to allow anyone over 65 to play golf. Or having to drive to the next county to get a haircut. Restrictions need to make sense, otherwise people will ignore them.


COUNTY ORDERS. Many health department orders contain detailed requirements. Boards should carefully review them and consult with legal counsel on how best to open their facilities.

Because so many counties are in the midst of updating their health orders, we will wait until Friday to summarize changes affecting associations.

Updated Chart. An updated chart is posted on the website. If we missed anything, please contact us.


I love your newsletter. So much news to keep us current and legal along with bits of great humor. -Vivian H.

Regarding the treasurer working for the management company, the board has another option. They could merely appoint a different treasurer. -Dan T.

RESPONSE: Good catch. That's an obvious option I missed.

As a former board member, I appreciate your helpful newsletters, and now more than ever. -Wienke T.

I love your newsletter. Thanks again. You are so informative and helpful. -Lisa P.

As always, stupendous service and thoughtful guidance through these stressful times. Much appreciated. -David B.

Love these newsletters. We've been avid readers for years now. Your newsletters are incredibly informative, and we've learned much from them over the years. Thank you very much for this service to your/our communities. You and your newsletters are much appreciated. -Larry M.

Thank you for your continuing efforts to make sense from this ball of rubber bands. Or as the Governor would say, “I know you think you understand what you thought I said but I'm not sure you realize that what you heard is not what I meant.” -Bob C.

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.

Treasurer Works for Management

May 10, 2020 0 Views 0 Comments

QUESTION. Can our treasurer also work a paid employee accountant of our management company? -Julie R.

RESPONSE: It is not illegal but it weakens financial controls, creates potential conflicts of interest, and has the appearance of impropriety. Your treasurer has mixed loyalties--he receives his paycheck from the management company but is also an officer of your association.

If he prepares (or oversees) the accounting records for your association, you lose the independent review you would expect from your treasurer. Even if he does not prepare them, will he be critical of his employer's handling (or mishandling) of your association's monies? To avoid potential problems, your board has three options: (i) the treasurer stops work for the management company, (ii) the treasurer step down from the board, or (iii) you change management companies.

Offsets.
Does disallowing offsets only apply to condominium associations or does it apply CIDs in general? -Robert M.

RESPONSE:
It applies to all common interest developments (condominiums, planned developments, stock co-ops and community apartment projects). Members who lose the use of recreational facilities because of the pandemic do not have the right to reduce (offset) their assessments. See Duty to Pay Assessments.

Capital Improvements. We would like to add solar to our pool house cabana. Since this item is not included in our reserve account, can you provide some guidance on the options available for associations to fund capital improvements? -Maryann N.

RESPONSE: You can fund the cost through a special assessment approved by the membership. If the initial cost is significant and the special assessment large, you can get a bank loan. Because it is paid back over time, the impact on the membership is significantly reduced. The special assessment and bank loan will need to be approved by the membership. Another option is to find a solar installer that will set up a payment plan.

5% Limitation. Even if the work can be done without a special assessment, check your governing documents. Most CC&Rs contain a provision requiring membership approval for capital improvements that cost in excess of 5% of the association’s budgeted gross expenses for the year.

Prepay Assessments. Another way to improve cash flow for those associations with unexpected pandemic related delinquencies is to ask members who have not lost their jobs to voluntarily prepay three, four or six months of assessments. Doing so provides a cushion for the association to pay its bills until laid off owners can return to work and get caught up on their bills.

With prepaid assessments the association can avoid disturbing money in the reserve account. Often, reserve funds are in laddered CDs or similar investments that might charge a fee for early withdrawal. If the association could avoid those fees, everyone benefits.

Many people would love to help their neighbors in need, but are not sure how. This would be a great opportunity, and would come at virtually no cost to the owners who choose to prepay their assessments. -Deon S.

FDIC Limit. I thought I would remind fellow HOA treasurers that if they decide not to re-invest a maturing CD and add the monies to their reserve account to make sure the association does not exceed the $250k maximum amount protected by the FDIC. The limit is per depositor per bank. -David B.

Finance Committee. Is mandatory to have a finance committee? We went without once for three years and our finances showed it. -Jill B.

RESPONSE: Unless a finance committee is required by your governing documents, boards have no obligation to appoint one. Sometimes boards appoint such committees because they don't have anyone on the board with financial or accounting experience. Other boards, however, have a talented treasurer and don't feel the need for a finance-budget committee.


Notify Members. Do we have to notify owners if the board is not putting money into reserves due to delinquent assessments? -Susan B.

RESPONSE: Yes, it's always a good practice to notify the members. You should make a motion that is recorded in the minutes of an open meeting and also let members know in a letter or newsletter that you are temporarily suspending transfers into reserves.

CLEANING
RECREATIONAL AMENITIES


Readers asked about requirements for cleaning their recreational facilities. It will depend on requirements established by their county or city. If neither one sets guidelines, then look to state and CDC guidelines.

Deep Cleaning.
Before opening their facilities, associations should have them deep cleaned. Even if associations have their own onsite staff, they may want to use on an independent cleaning service.

Daily Cleaning. Using staff or a cleaning service, have all facilities thoroughly cleaned each night. Some may need to clean twice a day. Some may need to put a supply of Clorox Wipes at their facilities so members can wipe down surfaces before touching them.

Newsletters & Signage. Boards will need to carefully review applicable health department orders to make sure they are in compliance When they open their facilities. Posting signage will be important as well as regular letters/newsletter to members keeping them informed what they can and cannot do when using the facilities--social distancing, face coverings, wiping down surfaces, limits on gathering, etc.

RECOMMENDATION: Carefully follow cleaning and signage requirements established by applicable governing bodies. For some associations, cleaning schedules will be outside their budgeted expenses and will put pressure on cash flow already impacted by delinquencies. Boards will need to take a serious look at how to reduce expenses to cover the costs.

USING RESERVES TO
PRESERVE CASH

On May 12, Adrian Adams will join reserve fund expert Robert Nordlund (Association Reserves) to address how boards can use their reserves to preserve cash.

The webinar discussion will include deferral of maintenance, reallocation of contributions, and borrowing funds in the midst of a pandemic. Additional information and signup is available here.


COUNTY ORDERS. Many orders contain detailed requirements. To avoid potential liability, boards should carefully review them and and consult legal counsel on how best to open their facilities.

NorCal Counties. Cal/OSHA and the California Department of Public Health issued new guidelines for industries which can be found on the Resilience Roadmap. It provides detailed information which many counties are now deferring to rather than creating their own guidelines. 

Butte County published their plan to reopen the county, which is linked to in the chart. They opened low-risk Stage 2 businesses and this outlines how they plan to reopen future businesses with State approval. 

Calaveras County rescinded its Health Orders and is following the State’s Order. They are allowing low-risk Stage 2 businesses to open and anticipate moving to other State 2 businesses shortly.

El Dorado County opened low-risk Stage 2 businesses and believes they will be able to open all of Stage 2 shortly as they have already submitted their plan to the Governor.

Lake County is now following all Governor’s Orders. They allowed low-risk Stage 2 businesses to open.

Mendocino County recreation must be initiated within 50 miles of a person's residence, but urged to remain in one County. Stage 2 low-risk workplaces may open pursuant to its Resilience Roadmap. Dog parks, golf courses, tennis courts and swimming (presumably pools as there is nothing stating otherwise) may open subject to social distancing and compliance with protocols in Section 16 of the Order.

Mono County opened low-risk Stage 2 businesses pursuant to a press release on May 8.

Monterey County is allowing Stage 2 businesses openings pursuant to the Governor’s Order. All other portions of the prior order remain.

Nevada County rescinded their order and is following the State’s Stay-at-Home Order. 

San Joaquin County has a new order keeping their golfing guidelines in place, allowing singles tennis and opening low-risk Stage 2 businesses.

Solano County has a new order allowing low-risk Stage 2 businesses to open. All guidance is now under the same link as the order.

Sonoma County amended their order to open low-risk Stage 2 businesses. They also amended their park closure Order which is posted in the Notes tab.

Tulare County rescinded all prior orders and adopted the State’s Orders unless more specific information is included.

SoCal Counties. Los Angeles County posted reopening protocols for retail, golf courses and trails. The city of Los Angeles revised its safer-at-home order which expires May 15. Trails and golf courses are open. City beaches are closed.

Kern County will follow the state’s phase 2 reopening business plan. However, county administrator stated they would not fine businesses that open which are not allowed to fully reopen.

Orange County beaches are open with non-stationary activities of walking, running, swimming, surfing, paddling, boating, kayaking, etc. Not permitted is sunbathing, building sand castles, bringing coolers, umbrellas, grills, group activities such as volleyball, spike ball, etc. Can refer to OC Parks for more information on the beaches.

Riverside County rescinded three health orders for mandating facial coverings, social distancing, and prohibiting short-term rentals. School closure order was amended to include only K-12. Vocational schools and higher learning institutions can open. The County is following the state’s phase 2 reopening business plan.

Palms Springs has an amended order dated May 7, 2020 for trails, golf courses, parks, recreational facilities, including pools, tennis courts, and pickleball courts. Pools can open pursuant to the May 6, 2020 Riverside guidance. Order states the requirement for written infection plan is not intended to require adding or increasing staff necessarily but instead may be enforced in any manner deemed reasonably acceptable.  Also states that HOAs are not required to make their pools available to residents.

San Diego County has a new health order effective May 10 that incorporates a definition of reopened business which follows the state's roadmap for reopening businesses. San Diego is following the State’s phase 2 reopening plan.

San Luis Obispo County is following the State’s phase 2 reopening plan and is currently applying to the State to further loosen restrictions.

San Bernardino County issued a new health order making face coverings optional but encouraged. The County is following the State’s phase 2 reopening plan.

Santa Barbara County's new order is effective May 8 and expires on May 31. New pool requirements for homeowner associations which allows up to six individuals from one living unit to be at the pool at a time. Can also use pool deck and restrooms. Pool furniture is not allowed to be used and must be removed, roped off, or rendered unusable. Requirements also issued for tennis and pickleball. The county is following the State’s phase 2 reopening plan with guidelines in health order.

Ventura County relaxed guidelines to follow the State’s phase 2 reopening plan. The order continues closure of swimming pools, spas, hot tubs, saunas, steam rooms other than at a single-family residence. The stay-at-home order continues for those 70 years old with active or unstable comorbidity or older than 75 years of age.

Updated Chart. For a list of county restrictions and links to their orders, see County Orders as of 5-10-20. An updated chart is posted on the website. 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.

Overriding the President

May 8, 2020 0 Views 0 Comments


Refusing Meetings. Our president is refusing to hold meetings. Can the other board members hold meetings without the president? If not, can we remove that person as president? -Anonymous

RESPONSE: Yes, other directors can call a meeting, set an agenda, post a notice and hold a meeting without the president. Unless otherwise provided in your articles or bylaws, board meetings may be called by the president, vice president, secretary or any two directors. (Corp. Code §7211(a)(1).) And, yes, directors can remove the president from office and appoint another director as president.

Equal Votes? Do board members all have equal weight in their votes? Or does the president have final say when the board cannot come to an agreement? -Anon

RESPONSE: All directors have equal votes. Decisions of the board require majority approval once a quorum has been established. If you have a 5-member board and only four appear at a meeting, you have a quorum and can conduct business. If the vote on a motion deadlocks 2 to 2, the president does not get to decide the outcome. The motion dies because it did not receive majority approval.

Telephonic Meetings. Our manager claims a rule change must be enacted before we can have telephonic meetings. Is that true? -Michele J.

RESPONSE: No, it's not true. Simply give four-days' notice of your next meeting and include instructions on how members can call into the meeting.

Recorded Zoom Meeting. Our association will meet this week for the first time via Zoom. Are we able to keep a recorded audio/visual file of this meeting which may be accessed by board members? -David B.

RESPONSE: There are pros and cons to recording your meetings. On the plus side, you can post them in a password protected area of your website for board members and homeowners to view at their leisure. A potential downside is they can be subpoenaed in the event of litigation. As long as everyone behaves professionally, that should not be a problem.

Unknown Attendees. Our governing documents limit board meeting attendance to owners, spouses, or those with power of attorney. How can we ensure that outsiders are not listening to virtual meetings? We previously disallowed a homeowner from dialing-in to meetings for this very reason. -Heidi H.

RESPONSE: Some programs allow you to block unwanted attendees. The downside to virtual meetings is the inability to prevent people in the same room from listening in. For open meetings, this should not be a problem.

Deaf Attendees. A number of readers responded with good information for deaf attendees. It turns out that Zoom's closed captioning feature does not make captions appear. Someone in the meeting must type the captions.


One reader's association uses a captioning company called eCaptions to provide real-time captions. The process is called Computer-Assisted Realtime Transcription (CART), similar to what a court reporter does. It has the added benefit of providing the manager with a transcription of the meeting for preparing minutes.

A link from Zoom's website explains how closed caption settings work. Also see: Accessibility Tips for Zoom Meetings; Integrating A 3-Party Captioning Service; CaptionSync: Real-Time Captioning; and Alternative Communication Services.

Executive Sessions. If a board member consistently discloses confidential information discussed in executive session, can he be excluded from future executive meetings? -Sandi M.

RESPONSE: Such behavior by a director is an ethics violation. If a strongly worded letter from your association's legal counsel does not stop the behavior, form an executive committee consisting of your remaining directors. Your executive committee would then handle executive session meetings without your ethically challenged director.

OPENING
RECREATIONAL AMENITIES


A number of readers asked how best to open their facilities. That depends on the county in which your association is located. Some counties continue to prohibit openings, some allow it with strict requirements, and some with relaxed requirements.

For example, Riverside County published recommended guidelines so "managers, HOAs, and residents can make responsible decisions" using pools and spas. Condominium associations that do not have staff could post the guidelines and rely on members to self-regulate. Larger associations with onsite staffing could assign someone to the pool to enforce the guidelines and regularly wipe down surfaces.

San Diego County is completely silent on the issue. Searching their website produces nothing. At best, we can infer that pools are open but limited to persons participating "in individual or family outdoor activity." It's surprising their order is so poorly written. (Order of the Health Officer.)

Los Angeles is one of the counties that is keeping all facilities closed: "Fitness areas, including basketball and tennis courts, community or recreational rooms, swimming pools and jacuzzis must be closed to all occupants, staff and the public per the Health Officer Order." (Guidance for Multifamily Residences.)

If a county allows associations to open their facilities but only if the association regularly wipes down surfaces and monitors usage, such regulations will preclude the opening of facilities for most associations since they lack the personnel to comply with the orders. If, as with Riverside County, facilities can open with recommended guidelines, boards can open their facilities and let members self-regulate. It's ambiguous orders like San Diego's that are problematic.

QUESTION: Can our board open the pool without a vote of the members? I maintain that we have a fiduciary responsibility to our members in that if we cannot ensure that no one would get Covid-19 and perhaps die from it, we need to protect our asset. Even if we had signed waivers, the club could still be sued for a wrongful death lawsuit. -Lori B.

RESPONSE: Even if the county authorizes opening of all swimming pools, your board has final decisionmaking authority. You can choose to keep your facility closed. However, ensuring no one ever gets the virus is a very high standard. That means keeping the facility closed for the next year until a vaccine is developed and everyone has been vaccinated. I suspect your membership will not stand for that. If you follow applicable county guidelines (if none, then state and CDC guidelines), it would be difficult to assign any liability against your association. You should talk to legal counsel about how best to open your facility.

HOA Doormen. Can we ask our doormen to refuse entry to any visitor, delivery person, basically nonresidents, who will not wear a mask and adhere to social distancing? -Iris A.

RESPONSE: Yes you can. Your association, through its board of directors, has control of the common areas and your employees. You can instruct employees to refuse entry to anyone not wearing a face covering. Stores are already doing it.

Infrared Thermometers. In addition, you can use an infrared thermometer to check each person's temperature entering your building. Employees with an elevated temperature can be sent home. Vendors and guests with elevated temperatures can be turned away. Residents must be admitted but can be advised of their high temperature so they can immediately contact their doctor. The thermometers are available online through Amazon. Some restaurants, hair salons, and other businesses are already using them.

Older People. Yesterday, it was announced that Los Angeles would be opening golf courses. Mayor Garcetti said the openings do not include citizens over 65. Many of our golfers are over the age of 65 and we want to do the right thing. Please advise. -Michael F.

RESPONSE: The restriction means Mayor Garcetti does not trust older people to behave responsibly and he has effectively put them under house arrest. All you can do is talk to your association's legal counsel and decide the best course of action for opening your association's golf course.


COUNTY ORDERS. Many orders contain detailed requirements. To avoid potential liability, boards should carefully review them and and consult legal counsel on how best to open their facilities.

As a general note, many counties are now offering testing to all County residents.

NorCal Counties. Contra Costa County is not allowing sports or activities that require use of shared equipment, like frisbees, basketballs, baseballs, and soccer balls, unless engaged in by members of the same household.

Shasta County is allowing pools to open but recommends regular sanitization of hard surfaces and posting a notice to encourage social distancing.

Bay Area Counties are not allowing non-essential businesses to open. Mendocino’s Order is still in draft but will likely be released today. Mono County will open lower-risk retail workplaces May 8.

Napa County is allowing tennis with social distancing, public or semi-private (i.e. association) swimming pools may open subject to facility/association rules, proper maintenance (with chlorine and bromine on established schedule) and social distancing. Early stage 2 businesses may open pursuant to state guidance.

Santa Cruz is allowing stage 2 low risk businesses to open. Shasta County appears to be following the state's order. They are opening stage 2 low risk workplaces pursuant to state guidelines.

Sonoma County opened Bodega Bay boat launch ramps and trailer parking areas for recreational fishing subject to guidelines. Stanislaus County has a new order with critical business infrastructure guidelines. Face coverings are recommended. Yolo County is allowing stage 2 business openings subject to guidance that can be found through their Roadmap to Recovery.

Other counties are in the process of drafting formal orders or making changes.

SoCal Counties. Ventura County's order was modified to allow use of beaches for exercise only. No gatherings, sitting, barbecuing, only walking, running, swimming and surfing are allowed. Piers, picnic areas, bathrooms and playgrounds remain closed. Golf courses, bike shops, and in-person car sales businesses were allowed to re-open but gyms remain closed. Businesses that don’t serve the public and have up to 10 employees can re-open.

Riverside County opened pools with guidelines, which recommend six feet separation and swimmers should limit themselves to lanes; no large groups or pool parties, however residents of same household can swim together; pool furniture should be properly distanced; residents should wear a face covering when traveling through common areas; residents should bring hand sanitizer or provided by pool operator; pool operator should frequently check shared restroom that is stocked with soap and paper towels; pool operator should use scheduled time slot on busiest days; the spa should be closed or limit to 1 person or household at a time;  a disinfection plan should be created to identify frequently touched surfaces and a schedule created and designation of person to complete disinfection; an EPA-approved disinfectant should be used; signage should be posted reminding residents to wash their hands frequently, cover cough and sneezes and avoid pool area if having any symptoms of not feeling well.

Los Angeles County released a roadmap to recovery infographic based on the State’s phased reopening which can be found at "Roadmap to Recovery." They also have a PowerPoint of their Roadmap. The County will allow openings as of May 8 of non-essential retail stores, with curbside pickup only. It will also allow car dealership showrooms, and golf courses, all of which must follow social distancing and infection control protocols. Hiking trails will open with social distancing and face coverings.

Updated Chart. For a list of county restrictions and links to their orders, see County Orders as of 5-8-20. NOTE: An updated chart is now posted on the website. If we missed anything, please contact us. Many orders contain detailed requirements. To avoid potential liability, boards should carefully review them and and consult legal counsel on how best to open their facilities.


What an awesome chart, great job! -Rick S.

The association's First Lady? Consider yourself lucky. We had a president who, on the day he took office, announced "there's a new sheriff in town." Try working in that environment. -George H.

We enjoy your newsletter immensely and it helps us so much in fulfilling our HOA duties. -Sandi M.

Your newsletters were so awesome and helpful we decided to put your firm on a retainer. -Alfredo S.

The Chart of County Orders is a terrific tool and I’m sure took quite some time to compile. Thanks very much for all you have been doing to keep us managers well equipped to address the myriad of topics this pandemic has thrown at us. You and your staff are to be commended. -Brian F.

Thank you for your newsletters, they are a great source of education and I reference them often when providing guidance to our board. -Julie H.

Thank you very much for the newsletter - always great! And thank you for the Chart of County Directives. -Teresa H.

Thank you for your newsletter's steady presence in times of distress. -Troy C.

"If someone walks their dog without a face mask..." So now dogs have to wear face masks? Your sense of humor is contagious and very welcomed. Many thanks for your excellent updates during this very uncertain time. -Anonymous

Hello, and thanks so much for this! The topic is so timely! -Suzanne H.

Thank you, as always, for a very informative newsletter. -Amy B.

Another great Newsletter. -Joseph L.

NOTE: I have a large backlog of questions from readers. I will get to them but I may have to triage 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.