Waive Coronavirus Assessments?

Mar 26, 2020 0 Views 0 Comments

Over the past few days, I've received a large number of emails from board members asking about delinquent assessments related to the pandemic. Should boards waive late fees and interest? Should they waive assessments for a month, three months, longer? Should they waive for some members but not others?

Balancing Board Duties. Boards have a fiduciary duty to keep their associations operational. That means paying utility bills, paying for insurance, maintaining the property, responding to emergencies, maintaining security, paying vendors, etc. At the same time, boards need to balance these obligations against the fact that increasing numbers of members cannot pay their assessments because of the pandemic.

Late Fees & Interest. Members have been laid off through no fault of their own. Accordingly, boards should immediately suspend late fees and interest on all delinquent accounts related to the coronavirus. Older delinquencies having nothing to do with the pandemic can be treated differently. With those accounts, boards can choose to continue late fees, interest and foreclosures.

Foreclosures. While liens can be recorded against new delinquencies, no foreclosure actions should be initiated against them. With older delinquencies, it may be appropriate to move forward with foreclosure actions, up to and including selling units. This would be the case for delinquencies that predate the coronavirus where there is no chance the person will pay the delinquent amounts. For others, foreclosure actions might move forward to the point of sale and then stop if amounts owed will be paid.

Waive All Assessments? Waiving assessments altogether is compassionate but also problematic. As noted above, boards have a duty to keep the association operational and pay its bills. It can't be done if no one pays their assessments. What about waiving assessments for delinquent members only? This presents a different problem. Do you waive for delinquent accounts that have nothing to do with the coronavirus? That would not be prudent. Forgiving assessments for those laid off because of the coronavirus is easier to defend but still a problem.

Waive Some Assessments? How do boards decide which ones are pandemic related? How long do they waive assessments? What if there is a rolling waive of layoffs for months to come because of the virus? At what point do boards stop waiving assessments? Also, waiving them creates a budget shortfall that increases the financial burden on everyone else. The best solution is to work out payment plans with members laid off from work.

Payment Plans. Fortunately, most (hopefully all) layoffs will be temporary. The coronavirus will soon peak, stay-at-home orders will be lifted, businesses will restart, and workers rehired. In addition, last night's approval by the Senate of a $2 trillion stimulus package includes cash payments to individuals hurt by the epidemic. Boards should work out payment plans on a case-by-case basis with members. Each will be a little different depending on how long the person has been laid off. Boards should be balanced and reasonable in their payment plans.  

Reduced Fees? Readers wrote that some owners were demanding a reduction in assessments since they could not use the association's amenities such as the pool, spa, fitness center, tennis courts, etc. Boards should politely decline all such requests. The loss of use is temporary. Besides, how do boards calculate the amount of reduction and who do they give it to? Many members do not use the facilities or only use them occasionally. Should they get a reduction? Do those who use the facilities more often receive a greater discount than those who don't? This is a non-starter.

Conflict of Interest? What about board members who are delinquent? Can they vote on issues involving assessment relief? To avoid conflicts of interest, a director who is delinquent must recuse him/herself from votes involving their own delinquency. They can still vote on matters related to payment plans and foreclosures for others but may want to recuse themselves to avoid any appearance of conflict.

Steady the Ship. The storm will soon pass. Board members need to keep a steady hand on the ship's tiller. Homeowners need to be patient.

POOLS
AND HOT TUBS
 

Kids in the Pool. I asked the board to close down our two pools and spas. They refused stating, “With all the kids out of school, that could be a problem” which is exactly the problem. Children have no idea what social distancing means. Is there anything I can provide this board to help them understand what they are doing? -Marla M.

RESPONSE: My newsletters.

Pool Furniture #1. The board president put up a sign the pool area was closed per the city. The city did not close pool sitting areas. She has taken all the chairs and folded them and put them on one side of the pool area so no one can sit on them. I pay a lot of money to this association and want to know if I can at least go into the pool area to sit and get some sun. Are we prisoners in our complex because this woman makes us inmates? I understand the severity of this virus but as long as we practice good sanitation and common sense, should a person like this board president be allowed to rule because she likes control? -Diane C.

RESPONSE: Of course, control is the only reason she closed the pool. What other reason could there be?
 
Pool Furniture #2. People who go to the pool & spa areas typically also sit on the loungers, touch the pool/spa handrails, use the pool area shower, etc. Even if it was just going into and out of the pool, infection is still a risk even if water is not the vehicle for spread. Thanks for all that you do. -Brian K.


Pool Accidents. Thanks for great updates, especially regarding pools and spas. Our HOA of nearly 10,000 homes puts out emails on an almost-weekly basis—even in the non-Covid-19 era—about 24-hour pool closures to allow for sanitization following “accidents”. These are NOT slip, trip, or fall incidents! So, I cannot imagine why anyone would want to use a public pool or spa now. -Frank D.

ESSENTIAL BUSINESS


Management. As early as the week before CACM canceled the 2020 Southern California Law Conference, my staff was already observing strict sanitizing procedures for our office, including making arrangements for owners to continue interacting with my staff on a limited basis. As to the issue of being an essential business, common sense already answered that question for me even before consulting with corporate counsel. Legal counsel confirmed that management companies ARE essential businesses. Discussions took place as early as two weeks ago with many of our regular everyday vendors and again the issue of the essential business question was validated. We also mandated immediate implementation of strict compliance with sanitizing procedures and protocols for our various janitorial companies and onsite managers. Gyms and restrooms were closed and social distancing notices were posted in every building with elevators and lobbies. As always, you seem to hit the nail on the head. -Steven C.

Teleconferencing. Our company has been using Jitsi as a teleconferencing mechanism for some time and it works flawlessly and is free. Our staff has been disbursed from our brick and mortar building working remotely from home. All our systems are cloud based and we hold daily meetings with our staff so that we do not lose sight of our main concern, our clients. -Steve C.

Indoor Construction. We are a large condo complex in the Los Angeles area. We were in the midst of a new flooring project for the hallways in 7 buildings, replacing old dog urine stained carpeting with vinyl flooring. The vendor's crew completed 5 buildings, with 2 more to go. We suspended the work. Can we continue if the crew wears gloves and N95 masks, has no contact with owners and residents, and works only in the long wide hallways of the 2 remaining buildings? -Rick B.

RESPONSE: The work can be done safely. Whether it violates the Governor's stay-at-home order is the question. That is something you should discuss with your association's legal counsel.

Outdoor Construction. Just wondering what your position is on small construction jobs that do not interfere with residents directly. We are a stock cooperative with hundreds of units. Some contractors would like to continue working on out door projects: i.e. building storage cabinets in the carports for a few residents and another involves installing flooring in in an unoccupied unit. Although this is not essential work, it does provide income to these contractors and does not put any residents at risk. Should that sort of work be allowed? -Donna G.

RESPONSE: The virus is crushing the economy and putting people out of work. The outside work you described can be done safely. I see construction projects still in effect around the city. I don't think one or two guys working outside and following social distancing creates a violation. But, I'm just one person. You need to talk to your association's legal counsel for guidance.

MISCELLANEOUS


Tax Filings. Thank you for your newsletters, which allows us all to be kept up to date on covid-19. I have a few questions on property values in California. We live in an HOA community in Riverside county. Do you know if California will be re-assessing the property tax on properties in the near future?  Also, is the date to file taxes been pushed back to the middle of July or the middle of August? -Mike B.

RESPONSE: I've heard nothing about tax reductions. Keeping in mind that we live in California and judging from historical actions, taxes move in one direction only...UP. As for tax filings, the IRS extended its deadline for payment of taxes and tiling tax returns from April 15 to July 15. California did the same. You should check online to confirm.


Parking Lot Cocktails. As a former board member at an HOA of almost 500 units, I’ve always enjoyed your helpful newsletters, and now more than ever. I heard indirectly about this idea: within our complex, one neighborhood, sponsored by 2 tenants, having another social distancing social at 5:30 on Wednesday in the parking lot. Bring your own cocktails. Wondered what you thought about this, in particular, whether the BOD should actively discourage this and/or whether it creates any liability. It just seems like a bad idea and an unnecessary risk (what if more than 10 people show up? what if people don’t practice social distancing as they drink more). -Wilhelmina T.

RESPONSE: If they keep it under ten persons and maintain social distancing, they aren't in violation. If the state keeps everyone in lock down much longer, I might join them.


Annual Meetings. It will be very helpful if you could write an article on the essential importance of holding an HOA election and not cancelling or postponing that. Perhaps there are guidelines, only allow a small number of members. We need to cooperate with the wishes of the election company, but the show must go on... as they say. To be frank, we are concerned about board members that don't want changes. -Ted H.

RESPONSE: It's a business decision by the board whether to delay the annual meeting or not. To move forward, arrangements need to be made with the association's management company for printing and mailing of ballots, for hiring an inspector of elections, for the televised opening and counting of ballots, etc. That's assuming new SB 323 compliant election rules have been drafted and adopted. Logistically, this is all possible but it may result in election delays.


ELECTION RULES. Election RulesAll associations must adopt new election rules to comply with SB 323. Failure to do so could subject elections to legal challenge and may result in new elections, monetary penalties and an award of attorney fees. To avoid this, contact us for new election rules. We offer them at an affordable fixed price.

KUDOS


That you are daily providing timely information that helps to navigate these scary times is an outstanding service and a model of everyone doing what they can, based on their abilities! -Kit

Love the mask. -Steve C.

Thank you for the continued communications in these challenging and fast-changing times. I think it’s been a great resource for folks in the industry. -Brian K.

Thank you for continuing to provide informative, useful and appropriately humorous advice during this crisis. We all need to adjust to keep moving forward, thanks for doing your part. -Edward F.

That's funny with a mask, great sense of humor, which is what we need. -Hector T.

Adrian, Thank you for DAILY updates on COVID-19’s effects in the HOAs! Greatly appreciated as an important reference on the issue. -Michael S.

Boards can contact us for friendly, professional advice.

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

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.

The First Lady

May 6, 2020 0 Views 0 Comments

First Lady. How does a board direct the president to stop referring to his wife as the "First Lady"? -Anonymous

RESPONSE: I laughed out lout at this one. Surely, your president isn't being serious. If so, it sounds like someone is taking his role as president too far. If it's annoying, politely ask him to stop. If he refuses, evaluate his performance as president. If he's doing a good job--live with the annoyance. If he's doing a bad job as president, it's time for the board to appoint one of your other directors to that position.


Dark Ages. One of our board members does not have a cell phone, no laptop or home internet access, and no voicemail capability for her home phone. She is unable to participate in our virtual board meetings. She maintains that internet access, cell phone, and long distance calling plans are not a required to be on the board. Any recommendations? -David J.

RESPONSE: I didn't think such people existed anymore. If your technophobe director wants to participate in board meetings, she must make an effort to do so. My 87-year old mother is a whiz at texting, face time, and emails, not to mention regular phone calls. If she can do it, your technophobe can enter the 21st Century too. If not, it may be time for her to resign and make room for someone who can be productive on the board.


Guideline vs. Law. Some people on our board say that Davis-Stirling Act is just a guideline and others say it’s the law. -Georgeann H.

RESPONSE: It's the law. If your association was created to manage a common interest development, you are subject to the Davis-Stirling Act. See Association Defined and
Hierarchy of Documents.

Suddenly Astute. Our board has been using Zoom to conduct meetings. Our open meetings are live streamed and then posted on our YouTube channel. It's becoming obvious that one of our board members who is not exactly known for much brilliance during meetings has suddenly become very astute. The suspicion is that she has someone with her at home coaching her remarks and votes. If true, this would be extremely concerning conduct, especially during executive sessions. Any insight on how to handle it? -Melinda A.

RESPONSE: Find out who is coaching her and recruit that person onto the board. If you are video conferencing, you should be able to see and hear if someone is coaching her. Even if the coach is off camera, your less than brilliant board member will have to look to her coach for direction before she speaks. That should be obvious. For executive sessions, make a statement at the beginning of the meeting about everything being confidential and ask each participant to affirm that no one else is in the room.


Political Signs. Can the HOA prevent me from putting a political sign in my front yard? -Alan E.

RESPONSE: No. However, your association can set number, size, material, and time restrictions. See Political Signs.

ARCHITECTURAL
QUESTIONS


Architectural Committee. Does the architectural committee HAVE to meet during COVID-19? -Donna W.

RESPONSE: Only if owners are submitting architectural applications. Otherwise, submittals might be deemed automatically approved. Check your governing documents, there should be a provision that requires prompt deadlines for review as required by Civil Code §4765(a)(1). Most governing documents grant automatic approval of a submittal if the architectural committee does not respond within so many days.


Balcony Inspections. We are a planned unit development consisting of 24 attached units and 90 detached units. Some of our attached units have raised decks off the master bedroom. Are we subject to the inspection provision in the statute? -Bryan S.

RESPONSE: Planned developments are not subject to the Civil Code §5551. I'm assuming the attached units are townhouses. Because your association is a planned development, each owner owns the structure and the lot on which it was built. That means he/she owns their balcony. Unless your governing documents state otherwise, owners will be responsible for inspecting, maintaining, repairing and replacing their raised decks, not the association.


Condo Plan. How can a homeowner get a copy of the original condo plan? -Kelly S.

RESPONSE: It’s been my experience that the condominium plan is the one document that seems to get lost most often. It should have been recorded, either separately or attached to the original CC&Rs. A title company should be able to locate your association's condo plan. If it still can’t be found, the DRE might have a copy on file.


EV Charging Station. Our HOA has units which have their own private garages with breaker panels with 220V service, so it is a very minor matter to hook up a (Level 2) EV charging station. Do they need to submit an architectural application before installing a charging station? -Stephanie C.

RESPONSE: If your development consists of single-family homes, I wouldn't think so. If it consists of townhouses, an application should be submitted since it involves running new electrical lines from the panel. The association will want to know that the person obtained a permit and will use a licensed and insured electrician. If done improperly, it could lead to a fire that impacts other units.

AGING
INFRASTRUCTURES


I am on the board of directors of the Foundation for Community Association Research and a member of the Aging Infrastructures Task Force. The Foundation completed a major study on aging infrastructures and published a report that will be invaluable for boards of directors, managers and reserve specialists.

The nationwide survey revealed that more than 80% of respondents encountered unanticipated infrastructure issues over a recent 3-year period. More than one-third experienced plumbing or electrical system issues that were not identified in their reserve study. Another third had unidentified problems with roofs and sheathing, building envelopes and structure, and recreational facilities.

The report, Breaking Point, is in an easy-to-read format and deals with funding issues, reserves, insurance, and communications with the membership. The Foundation also produced a promotional video about the project.


Harsh Language. We received County Covid-19 Guidelines. Our president sent an HOA-wide notice using harsher language than the Health Department to "impress upon" members to obey the guidelines. He unilaterally sent it out as a Board-approved document affixing all board member names to it. The other board members never saw, discussed, or approved this policy beforehand. His justification was that the president speaks for the board. -R.K.

RESPONSE: It's true that the president speaks for the board, but that's when the board has something to say. In this case, the board did not speak. Board presidents should be careful not to overstep their authority. 

 

Covid-19 Notice? Do we need to inform members that some residents in the park have had the coronavirus, been hospitalized, recovered and released? -Barbara S.
 

RESPONSE: There is no legal requirement that you inform the community. I don't see any real benefit passing on the news. If you do report it, do not reveal any names.

COUNTY ORDERS. Below is a highlight of changes to county restrictions. It should be noted that some counties do not have their A-Team writing their releases. Their information is either buried or nonsensical (or both).

NorCal Counties. The City of Fresno's new order extends to May 31, 2020 and expands essential businesses and gives no guidance on what outdoor activities are allowed with social distancing. There are specifics as to parks with all city parks closed on May 9, 10, 23, 24 & 25.

Tulare County updated their order making outdoor activities permissible with social distancing and no shared equipment with persons outside the same household. A facial covering requirement was added. The order is still poorly written and vague.

Calaveras County released FAQs that clarifies that tennis and swimming are allowed with social distancing. It also made a point of indicating that outdoor recreation facilities not owned by the County could remain closed if they so chose.

Sutter and Yuba switched to guidance from Johns Hopkins Center for Health Security and has moved away from essential v. non-essential terminology. The list of low risk businesses/activities includes restaurants, retailers, shopping malls, gyms/fitness studios, salons/spas/tattoo parlors, libraries, playgrounds, athletic fields/non-contact school sports, parks, walking paths, trails and dog parks. The guidelines include limiting numbers, social distancing, regularly disinfecting, providing sanitizer and posting protocols. While Newsom criticized these actions, he did not say if he would take any action to enforce his stay-at-home order.

SoCal Counties. Kern County rescinded its April 2, 2020 health order which defined a variety of types of business closures including gyms and fitness centers and had a county definition for gatherings and social distancing. The rescission means that the county has relaxed its restrictions to follow the Governor’s stay-at-home order which is expected to be updated this month. The April 16th amended health order is still in effect which has requirements for appropriate level of PPE for EMS response calls and guidelines of PPE and face coverings at healthcare facilities.

Santa Barbara amended existing orders for health requirements for individuals entering critical infrastructure facilities and licensed care facilities to include misdemeanor language of violation of the health orders are punishable by $1,000 fine or imprisonment.

Los Angeles County and City have not loosened their restrictions. The County made administrative changes to its guidelines for multifamily residences. Revised safer at home order for City of LA 5/4, no material changes, removal of prior obsolete language. In effect until 5/15.

Updated Chart. For a list of county restrictions and links to their orders, see County Orders as of 5-6-20. If we missed anything, please contact us.

 
I love your newsletters and your website is a wealth of information. -Kelly R.
 
Hi, you all. I really appreciate the chart you publish showing the status of permissions for various state counties. One thing, though. Since these permissions are becoming more fluid, how about a “date published” on the top of each page so everyone can see at a glance how current their information is. -Gerald P.

RESPONSE: Good suggestion. Jason and Megan added a "date published" to the chart's footer.
 
Our health officials this week made a major distinction between “family” and “household” when we had a large spike due to Easter gatherings by “families.” Forty-six new cases. It was pointed out that while family conjures up an extended group of related members, it is “household” that matters. It is the household, solely contained, that counts when we are guarding against the “silent killer’s” reach. -Marilyn B.


Thank you for your informative newsletter. -Bryan S.

I have been reading your newsletter for years, and it is greatly appreciated. During this time, the funnies put a smile on my face. -Audrey M.

Having served as an officer of our HOA on and off for many years, I have found your newsletters very helpful (and entertaining!). Thank you so much for you and your firms work in helping and supporting HOAs throughout the State. -Lyle 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.

Maintaining Cash Flow

May 3, 2020 0 Views 0 Comments

QUESTION: We have a lot of homeowners out of work who stopped paying their assessments. We know we can borrow from reserves. The board wants to know if we can we stop making reserve contributions? -Erin S.

RESPONSE: Yes, in addition to borrowing from reserves, you can boost your operational cash by temporarily reducing or stopping your reserve contributions. The pandemic has created an emergency situation for some boards. It's a temporary situation and boards can use monies scheduled for transfers into reserves to cover operational shortfalls.

Mid-Year Budget. There is no need to adopt a new mid-year budget. Budgets are projects and sometimes, as now, associations experience unexpected shortfalls in cash receipts and/or unexpected expenses. Next year's budget will probably need adjustments.

Defer Maintenance. Another means of preserving cash is to defer nonessential reserve expenditures. I don't mean critical maintenance but maintenance that does not create a safety issue or lead to property damage.

Certificates of Deposit. Reserve funds are typically invested in CDs. When they mature, boards should consider not reinvesting the money. Instead, leave it in their reserve account so the money is readily available to cover operational shortfalls if they need to borrow it.


Reimbursement Required? Since we are experiencing a lockdown of our clubhouse, pool, spa, health club, library, etc. and are still paying full HOA dues, are we going to get a reimbursement?  -Crystal K.

RESPONSE: No. The association still has to maintain recreational facilities and put monies into reserves. Plus, boards may have to compensate for lower cash flow due to unexpected delinquencies. Reimbursements are unlikely and offsets are not allowed.

MORE
FINANCIAL ISSUES


Monthly Financial Statements. My board does not distribute monthly financial reports at its meeting open to owners. Is this allowed? -James G.

RESPONSE: Boards have no obligation to distribute monthly financial statements to meeting attendees. Those are working statements which boards must review. It is not unusual interim reports to be inaccurate on some points. Corrections and adjustments are made in subsequent statements. Even so, boards should routinely include a summary "Treasurer's Report" in their minutes and then post them for membership review.

Annual Financial Statement. For HOAs with a calendar fiscal year, has there been any extension beyond 120 days (April 30th) for sending out the financial reviews to owners? -Palma G.

RESPONSE: Management company operations suffered major disruptions and many CPAs are currently overwhelmed. No judge in his/her right mind is going to ding you for being late in the middle of a pandemic. Publish the statement as soon as it can be done.

INSTALL STAIRCASE
HANDRAILS?


QUESTION: The board is discussing placing handrails on the main entry lobby stairs of our historic building. While we are not required to put in the railing, last year the previous board sought a proposal to do the work as we are a senior community.

Members were surveyed and felt the work would damage the aesthetics of the 100+ year old grand lobby and a new railing was not needed. However, we were told that once a proposal has been received to conduct work that may improve safety, the board would now be liable if the work is not done and someone falls on the stairs. Is that the case? -Carl H.

RESPONSE: Boards should always side with reasonable safety measures. You never get sued for making the common areas safer. You can get sued, however, when you know something is unsafe; you do nothing about it; and someone is seriously injured or dies as a result.

You have a community of retirees, you identified a safety problem and a reasonable solution. Not doing the work arguably exposes you to potential liability. If sued, you can defend by showing the results of the membership  poll. However, a jury may not find that compelling. The problem is that members do not owe a fiduciary duty to the association. The board does.

Imagine an 80-year old tumbling down the stairs. Then picture being in court, under oath, testifying how you identified a safety problem but decided not to implement a solution due to aesthetic considerations.

RECOMMENDATION: You should seek a formal legal opinion from your association's legal counsel.


Deaf Attendees. Friday, a reader asked how a deaf could attend Zoom meetings. It appears Zoom has made allowances for deaf attendees by including a feature for closed captioning. See screenshot of Meeting Settings. (Thanks to Erica Greathouse for the information.)

Hot Tub. Do spas need to be closed completely or can they remain open as long as residents practice social distancing? -Robert R.

RESPONSE:  If your county ordered the closure of all pools, it includes hot tubs. (I'm curious, how does one maintain social distancing in a hot tub?)


COUNTY ORDERS. Below are changes in county restrictions. Protests and civil disobedience are on the rise.

Beaches & Restaurants. Over the weekend there were protest rallies around the state, including Los Angeles, San Diego and San Francisco. Governor Newsom overrode Orange County health officials and shut down beaches. Huntington Beach residents flooded the streets to protest the Governor's order. Modoc County is defying the Governor's shutdown order and is allowing diners back into restaurants and is reopening other businesses.

NorCal Counties. Construction and landscaping are now considered essential businesses by all NorCal counties. Some Bay Area counties closed tennis courts due to shared equipment (tennis balls). Other Bay Area Counties close “common recreational spaces” without mentioning tennis courts but they appear to include them. El Dorado County’s stay-at-home directive expired on April 30 and residents will “be guided primarily by the Governor’s Order.” Restrictions on nonessential travel to the area remain in effect.

Santa Cruz County adopted new beach closure hours. Beaches are only open for non-sedentary activities when open and may be traversed to engage in water activities in the ocean during “beach closure” hours. Golf courses are also open subject to requirements. Essential businesses have been expanded. Lake County’s new order consolidated all addendums and clarified their golf guidelines.

Butte County pool openings are unclear. We've been told, but can't verify, that pools are open subject to social distancing and gatherings of no more than ten. Monterey County has an updated order that takes effect 5/4. It expands essential businesses and opened golf courses subject to protocols. Placer County allowed their county orders to lapse on 5/2 but are following the state's shelter in place order.

Solano County amended its order to open golf courses subject to protocols. The order is poorly written regarding pools. It appears they remain closed: “At least public pools used for general recreation are closed (i.e. lap swimming may be allowed). It seems that tennis is now okay for members of the same household. Entities that manage facilities or activities allowed by the order must take measures to reduce crowding.

Sutter and Yuba Counties amended their order effective 5/4, which greatly expands what is open. Tuolumne County now allows golfing with no cart if social distancing is practiced. Sonoma County opened golf subject to specific requirements and extended their order until rescinded. Mono County added a face covering order. Nevada County gyms remain closed, dog parks can open if seating is closed, hand sanitizer provided and people bring their own water and waste bags and people social distance.

SoCal Counties. San Diego has a new order effective May 1. Everyone two years and older must wear a face covering anywhere in public when they are within six feet of another person or when entering a business. There was a relaxing of restrictions for parks and golf courses as long as they enforce social distancing. Parks will allow visitors to sit on grass and picnic. Members of the same household can play active sports such as basketball or volleyball. Beach parking lots are still closed, but in addition to running, hiking, equestrian or bike riding at the beach, they allow swimming, body surfing, boogie boarding, surfing, kite surfing, paddle boarding, kayaking, snorkeling and scuba diving in the ocean and bays connect to the ocean if can effectively social distance. All indoor and outdoor private spaces allow for gatherings of family and same household members. Therefore recreational amenities were changed on the chart to allow for family and same household member gatherings.

Updated Chart. For a list of county restrictions and links to their orders, see County Orders as of 5-3-20. If we missed anything, please contact us.

 
The chart is GREAT! Thanks for that. Some counties (like El Dorado) have no info listed. -Scott L. 
 
RESPONSE: It's been added. Readers have been very helpful sending us links to missing information.
 
Hello Adrian!! Thanks for keeping me on the list of newsletter recipients, I really enjoy them. I have forwarded it to my HOA clients and many have said they already get it; well done! It has been a pleasure to know you and your firm for all these years, I am sure your efforts have made the industry better than it was 20 years ago. -Carl B.
 
As the newly elected president of my HOA, I very much appreciate your newsletter. It is filled with practical advice offered in succinct and friendly language. It has been very helpful, especially during COVID-19. -Carl H.


RESPONSE: FYI. Since the start of the pandemic, we've distributed over 800,000 newsletters. They are multiplying almost as fast as the coronavirus. Thank goodness they are all electronic. It saves trees.

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.

Dealing With Difficult Directors

May 1, 2020 0 Views 0 Comments

Abusive Director. If a board member has multiple complaints from security gate staff for inappropriate interactions, yelling, in your face interactions, etc., and states he is acting as an owner and not a board member, how should this be addressed? Should the board proceed with a censure and address him as a board member regardless? -Christina B.

RESPONSE: Your board member is behaving badly and his actions create potential liability for the association. His statement that he is acting as a homeowner does not insulate the association. The fact remains, he is a board member abusing the staff. If a lawsuit is filed, the association will be named.

If you don't take action, it will appear you are condoning your director's bad behavior. A censure recorded in the minutes together with a request for his resignation will make it clear the board does not condone his behavior. If he refuses to resign and continues to behave badly, legal counsel should send a letter putting him on notice the association will seek a restraining order against him if he does not stop.

If your abusive director is the least bit rational, he will stop behaving badly. If not, you need to take steps to protect your employees from him and protect the association from liability.


Uncooperative Director. What about a board member who declines to sign documents and refuses to provide bank required information to sign checks? How should the rest of the board deal with this one director? -Elizabeth M.

RESPONSE: Unless the person is an officer, he/she is not required to sign documents or checks. Some people are very risk-averse and don't want to sign anything. If your director shows up for meetings, reviews materials, participates, is respectful, and exhibits sound judgment, you are lucky--you have a good board member.

Mentally Unstable: We have a new board member who is mentally unstable. She is a known alcoholic and possible drug abuser. She comes in late, cannot follow the agenda, interrupts the board and displays some dementia. We had to terminate the meeting and leave our annual meeting. What can we do? -D.B.

RESPONSE: Give her fair warning if she does not behave, she will be censured and the board will ask for her resignation. You can't remove her for being an incompetent director, only the membership can do that. You should consider amending your bylaws to vacate a seat whenever a director misses a certain number of meetings (usually three consecutive or four in a 12-month period). If you amend your bylaws, take the opportunity to eliminate cumulative votingquorum requirements for the election of directors, proxies, write-in candidates and floor nominations, and add a provision for uncontested elections. We do this for our clients and it greatly simplifies their elections and reduces costs.


Girlfriend Making Decisions. A board member is allowing his girlfriend to make decisions on the building's rehab work. He said he added her to trust but we have not seen evidence of that. She states he gave her power of attorney so, therefore, she is an owner. Is this valid? -Bill J.

RESPONSE: No, none of it is valid. Your board member is exhibiting poor judgment. A power of attorney does not make his girlfriend an owner. Nor does making her a beneficiary in his trust. The board is in charge of the building's rehab, not his girlfriend.

VIRTUAL MEETING
ISSUES


Recording Meetings. I am loving the new paradigm of virtual meetings, as a manager, I’ve hosted about six Zoom meetings, everyone seems to like the convenience. The meetings are more efficient, you can mute everyone until the comment period, which makes meetings move along very quickly. Most of my boards will probably continue with these types of meetings even after COVID-19. -Ron R.

Technical Problems. Our last open board meeting was a disaster, it was a zoom meeting and 80% of the time the members and directors could not hear what was said. My 4-year old grandchild has zoom meetings with his school. If a 4-year old can do it, our board should be able to as well. -Finn M.

RESPONSE: To make virtual meetings work, boards sometimes need help with technical issues. They should find a good IT person and pay him/her to set up everything properly. It's worth the expense.


No Meetings. Our board president refuses to have a virtual meeting because of the state shelter order and claims the Corporations Code prohibits it. He says he will call a meeting when the shelter order is lifted. -Edward S.

RESPONSE: Your president is being short-sighted. Boards can and should hold virtual meetings. Associations all over the country are successfully holding them. The Corporations Code does not prohibit virtual meetings.

Virtual Meeting Notice. We now hold Zoom meetings. Do we need to change how we give notice of meetings and our agendas? -Jay M.

RESPONSE: Your agenda remains the same but your meeting notices must contain instructions on how members can access the meeting. In addition, you should include instructions for how your particular open forum will be handled so members know how to participate.


Deaf Attendee. If a deaf member wants to attend a Zoom meeting, how can she know what is being said? -Beverly G.

RESPONSE:
Maybe some of our video conference techie readers can tell us if there is a feature that puts subtitles on the screen in real time.

OPENING
RECREATIONAL FACILITIES


Denied Access. I would like to know the circumstances under which the board can deny my access to the common areas. -Tom B.

RESPONSE: Pandemics come to mind. Another instance is if you behave badly and the board suspends your privileges. I've suspended driving privileges in gated communities when someone (a 17-year old for example) repeatedly drives recklessly on their streets. I once suspended the privileges of Robert Durst (yes that Robert Durst who is currently on trial for murder). For more information, see "Suspending Privileges."

Monitoring Violations. Last week the county relaxed rules governing pools. It now allows for one swimmer at a time. Our board is concerned it will be difficult to ensure everyone follows the rules. Can our board not adopt the new rule and leave our pools and hot tubs closed? -Don S.

RESPONSE: If you open your pool, you have two options: (i) post county regulations and trust everyone to behave responsibly or (ii) adopt county guidelines as emergency rules, which means you can enforce them with fines. Can you keep everything closed? Yes. Can you open the pool but keep your hot tub closed? Yes. Your board can decide what's best for your association.

Tracking County Changes. Below are changes in county restrictions adopted in the past two days:

Beaches. Even though many counties opened their beaches, Wednesday night Governor Newsom shut down all beaches in the state. Thursday morning he clarified that only Orange County beaches were closed. Because this seems to change from day to day, you will have to follow the news on this one.

NorCal Counties. Tulare, Mendocino, and Calaveras Counties were added to the chart. Sonoma County opened golf courses, but not for golfing. Yolo County classified more businesses as essential. Calaveras County issued new restrictions. Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara Counties all have new orders effective May 4. Links to the new orders were added to our chart. Once they officially go into effect, old orders will be deleted. The above counties all opened golf courses subject to restrictions. They also expanded their list of essential businesses. Some provided additional guidance on outdoor activities. Sacramento County has a new order going into effect May 1. Tennis, golf, hiking trails, parks, and dog parks are open pursuant to guidelines. BBQs are open to same household use. The Bay Area is allowing construction again. We added FAQ links since they provide more explanation than the orders.

SoCal Counties. Orange County does not have an order expressly addressing pools. The order that banned gatherings expired on March 31st and currently the county is following the state's shelter in place order, which does not address gatherings or pools. So we changed our chart from closed to "no guidance." The same is true for San Diego County. Its health order does not expressly close private pools. However, it does prohibit gatherings in indoor and outdoor spaces. We changed our chart from closed to "no guidance."
Riverside County continued its requirement of face coverings and social distancing through June 19 but let lapse its prohibition of gatherings and will rely upon the state’s stay at home order which still requires residents to stay at home unless for necessary functions.

County Chart. For a complete list of county restrictions and links to their orders see: County Orders as of 5-1-20. If we missed anything, please contact us.


Thank you so much for your newsletters!!!!!! -Myrna W.

For many years, I relied on your newsletter to help me with my board related duties. Although I have aged out of my board responsibilities, I continue to enjoy the wit and intelligence contained in your newsletter. Keep up the good work. -D.C.

I am an avid reader of your newsletter and love its content. -Daryl H.

Even though Marjorie Murray’s legislation seems woefully ill-conceived and poorly drafted, where were members of the legislature that voted for this new law? Aren’t many of the legislators attorneys? Shouldn’t they have foreseen the problems? And what about our lovely Governor? Shame on the members of the legislature who voted for this mess and the Governor for signing the bill. That’s where the real problem lies! Thank you for the outstanding newsletter. -David Z.

RESPONSE: Too often, legislators don't read bills. They follow the recommendations of others. Two years ago, Governor Brown recognized the bill was a train wreck and vetoed it. Marjorie Murray's Center for California Homeowner Association Law (CCHAL) sponsored the bill again last year. CAI's California Legislative Action Committee (CAI-CLAC) fought hard against it and came within one vote of defeating it. CLAC then went to Governor Newsom to veto the bill. Unfortunately, he signed it. We are now dealing with the expensive aftermath. At some point, I would like to see a bill introduced to rescind SB 323. If that happens, I will let everyone know.

Thank you for your newsletter. I find it very helpful. -Elinor G.

I LOVE this newsletter and continue to forward it to the board members and owners of three associations, just in case they haven't signed-up. Family & friends are also receivers. Plus, I forward it to many real estate related, in other states. They can't believe I would still live in California!!! I love Mr. Adams humor, with the mask, and, for mentioning his mother in a previous release. -Leslie Q.

Thank you for a wonderful newsletter. -Alan E.

Will you be selling Adams Stirling masks? -Kathleen M.

RESPONSE: I hope not. I don't want Tammi going into business and leaving us. She's too valuable.

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.

Dumpster Fire Election Issues

Apr 29, 2020 0 Views 0 Comments

Director Recall Questions. If one petitions for a board recall, does there have to be persons designated to run for a seat on the board? Can the homeowners remove just one board member or all of them? This group can't even come to a consensus who should be president, secretary or treasurer. Can I circulate a recall petition to homeowners based on that? -Gail C.

RESPONSE: You asked three questions. I will answer each in order.

1.  Replacement Directors. No, you don't need to designate candidates in your petition to recall. Once your recall petition is filed, the board sets an election date. Normally, there would be a call for candidates so the removal and replacement of directors can be on the same ballot. Unfortunately, the dumpster fire known as SB 323 made a mess of the timeline.

The bill sponsored by Marjorie Murray's Center for California Homeowner Association Law (CCHAL) significantly lengthened the timeline for the election of directors to 120 days or longer. In so doing, the election of directors now exceeds the timeline for the recall of directors by one to three months. That means the election of directors cannot occur on the same ballot as the removal of directors.

To make the timelines work, the recall election must occur first. If the recall is successful, the directors remain in place until a second election can be scheduled for replacement directors. This creates another internal conflict since directors should vacate their seats if a recall election is successful. However, corporations are required to have a board of directors, so  recalled directors must remain in place while a second election is scheduled, candidates solicited, ballots mailed, etc. What was previously done in one election, now requires two elections. 

2.  Recall One or All?  Members can petition to remove one or more members or the entire board. If you have cumulative voting, removing less than the entire board is extremely difficult. It's a two-step process when counting ballots. First you must establish that a majority of a quorum of voting members approved the removal of directors from the board. If that is successful, a second calculation must take place to determine if a minority of the members blocked the removal. See "Removal of Directors."  

3.  Sufficiency of Petition. Can you circulate a petition to remove the board because it can't get anything done--not even the selection of officers? Yes. As long as its for a lawful purpose, you don't need a particularly compelling reason to circulate a petition. However, to successfully recall directors you need a reason sufficiently compelling that members will actually cast ballots. Most recalls fail because not enough people will take the time to mark a ballot and return it.

NOTE: Before SB 323, removal and replacement of directors took 60 to 90 days. The process now lasts 150 to 210 days, or longer. Seven months is too long--Marjorie Murray's organization effectively killed recalls.


Restraining Order. If a board member has a restraining order against him placed by the other board members, is he eligible to run for office in an upcoming election? -Ben

RESPONSE: It's rare that a director's behavior is so bad that a court must restrain his interaction with fellow directors. Unfortunately, your restrained director can run for office despite the court's order. To prevent his re-election, fellow directors can campaign against him. They can tell the membership about the bad behavior that led to the restraining order and urge the membership not to re-elect him. Anything circulated to the membership must be truthful and cannot be at association expense.


Trustee Candidate. Civil Code 5100(g)(3)(B)(ii)(iv) states that a person who has been a member of the association for less than one year may not run for the board. Does a trustee, who becomes member of the association at the death of a long-time member, have to wait one year to run for the board? -Denyse B.

RESPONSE: The section you cited is not mandatory. It is one of the allowable qualifications by SB 323. If an association has not adopted this particular candidate qualification, it does not apply. Absent the qualification, a trustee on title is deemed a member and can run for office, whether on title for a day or a year.

Trustee Spouse. I think you left the word NO off on the paragraph below. "The spouse on title as trustee is the only one who can serve on the board. Because of SB 323, the beneficiary spouse can [NO?] longer be elected to the board." -Linda S.


RESPONSE: You're right. "NO" slipped out when I wasn't looking. Because of SB 323, a beneficiary in a family trust can no longer be elected to the board. The bill sponsored by Marjorie Murray's organization forced associations to accept felons and pedophiles on their boards but prevents beneficiaries and spouses who are not on title from serving. Felons now rank higher than spouses when it comes to board elections.

Registrar of Voters. I seem to recall using a person from the Registrar of Voters to be their inspector of elections during a recall of two board members at no cost to the association. Not sure if they still do that, but it doesn't hurt to check. -Randy W.

RESPONSE: The League of Women Voters is also good at handling elections. Unfortunately, the complicated nature of elections under SB 323, the increased risk of litigation created by the bill, plus the requirement that inspectors hold election materials for one year makes it untenable for most volunteers to oversee elections. Since SB 323 prevents management from handling elections, most associations are forced to hire inspectors, thereby increasing the cost of their elections.


An attorney in Northern California recently wrote about the costly impact of SB 323 on associations. "I represent a lot of small associations in the North Bay Area–some as small as 10 units, many in the 20 to 50 unit range. First, it is very difficult to find election inspectors. A few attorneys up here are doing it at their hourly rate or the association has to hire the big companies out of the area. They end up paying $750 or more just for the election inspector. Together with the costs of printing and postage, the small associations can be looking at $40 or more per unit for a ballot election. Most of the members in these small associations think that is a very poor use of their money."

If CCHAL really cared about consumers, the organization would step up and pay those costs.

Uncontested Elections. Doesn’t SB 323 supersede election by acclamation in current bylaws? -Robert R.

RESPONSE: As noted on previous newsletters, there is a split in the legal community on the issue. I don't believe SB 323 affects associations that authorize uncontested elections in their governing documents. The bill
did not prohibit the seating of directors in uncontested elections. Instead, it authorized it for associations with 6,000 or more units, which means authorizing language does not need to be in their bylaws. Accordingly, if associations with less that 6,000 units provide for uncontested elections in their governing documents, they can seat candidates without balloting. Associations that do not provide for it must go through the balloting process. Because it is an unsettled issue, boards should follow the advice of their legal counsel.

Website Research. Since we rely on your website for research purposes, may we presume the Adams Stirling website is currently up to date with all the changes that were implemented as a result of SB 323? -Ron C.

RESPONSE: SB 323 had a lot of tentacles and impacted an inordinate number of election provisions. We think we updated everything on the website. If anyone spots something we missed, please let us know.

OPENING
RECREATIONAL FACILITIES


In preparation for everyone's return to work, Tammi Saucer in our accounting department made custom face masks with our firm's logo on them. 

Just as our firm is preparing for a new normal, boards need to prepare as well. It's clear that social distancing and face masks will remain in effect for the foreseeable future. That means virtual board meetings will continue.

Tracking County Changes. Following are some of the changes in county and city restrictions implemented in the past few days:

NorCal Changes. The updated spreadsheet reflects Yolo County pool closures and the addition of Yuba,
Tuolumne, Mono and Sutter Counties to the chart. Tuolumne County instituted a ban on nonessential short term lodging as Mono County did. Pools are closed, tennis courts appear to be same-household use only, golf courses are closed, social distancing must be followed for walking, hiking, biking.

The City of Fresno has orders that are more restrictive than the county. It closed all facilities except trails but is temporarily allowing RV parking on streets for essential workers self-isolating from family members.

Monterey County added a face covering order and is limiting short-term lodging to identified essential purposes. Nevada County replaced their Order from 4/15/20--pools remain closed; tennis courts are open to members of the same household; golf is open pursuant to guidelines; and dog parks are open with listed restrictions. The Order was extended to May 15, 2020.

Sonoma County changed it’s park closures with specific guidelines which gave clear orders that pools, tennis courts, golf courses, gyms etc. are closed except golf courses with paths can open for walking, jogging, hiking and bicycling.

A press release for the Counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara as well as the City of Berkeley announced a new shelter in place order will be issued this week extending the restrictions through May with limited easing of specific restrictions.

SoCal Changes. Palms Springs allows HOAs to open pools to a single swimmer. However, it requires them to remove pool furniture and/or stacked/chained to render furniture unusable. Drinking fountains and showers must be closed or roped off. It also requires high touch areas such as handrails, restroom surfaces, light switches, dispensers, faucets and doorknobs to be sanitized frequently. Even though golf courses are open in Riverside County, they remain closed in Palm Springs.

Santa Barbara is opening outdoor activities provided people comply with social distancing. People are now allowed to visit, walk through botanical gardens, golf, play tennis and pickle-ball, walk, hike, run, bicycle, pleasure drive, and work around their residence, including gardening. San Bernardino County now allows tennis with social distancing. There are a number county orders expiring between April 30 and May 4, so we should expect further updates in the upcoming days.

County Tracking Chart. For a complete list of county restrictions and links to their orders see: County Orders as of 4-29-20. More changes are expected May 1. If we missed any updates, please contact us with the missing information.


Thanks to Megan Hall and Jason Savlov for compiling the data on California counties' C-19 restrictions/guidelines on use of HOA facilities, including the valuable links. And thanks for informative overall discussion of the matter. -Art I.

Thank you for all of your newsletters. The information you supply is excellent. -Jan K.

Can’t do without your fabulous newsletter. It’s truly the best for HOAs. -Rosi M.

Thanks for your excellent AS Newsletter. -Wayne R.

Thank you for these newsletters. They are very helpful and resourceful. -Linda S.

Love your weekly article. It is very helpful. -Jerry H.

Thank you for the informative newsletters. It helps to see that HOAs all over have the same or similar issues. -Gail C.

I recently was elected to our HOA board. There are no words to fully convey how genuinely appreciative I am of your website and the wealth of reliable information it provides for i-dotters & t-crossers like me. -Lori 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.

Opening Recreational Facilities

Apr 27, 2020 0 Views 0 Comments

We received a large number of emails asking if associations can ignore county orders closing their swimming pools, gyms, tennis courts, etc.

Defying Orders. Associations that defy health department orders are subject to fines up to $1,000 per violation. As noted in Friday's newsletter, if the state, county or city is silent about a particular amenity, tennis courts for example, boards of directors can adopt their own guidelines. Boards might close their tennis courts entirely, or allow singles play but not doubles, or not restrict the facility and leave it to members to follow CDC guidelines.


Charting Closures. Because counties throughout California have differing directives, two attorneys in our office, Megan Hall (NorCal) and Jason Savlov (SoCal), put together a chart of county health directives affecting associations. Finding applicable directives has been challenging. Some of the information is buried deep in county websites. If readers have access to information we don't have displayed, please let us know.

Our chart covers pools, tennis courts, golf courses, beaches, hiking trails, parks, barbecues, dog parks, and more. We also include links to the particular orders. We will publish an updated chart with each newsletter so readers know when they can open facilities. See County Orders as of 4-25-20.

Guidelines. When civil authorities loosen restrictions, boards will need to be careful to find out if guidelines are attached. For example, last week when Riverside County reopened golf courses, the health department included the following guidelines:

• Play shall be limited to foursomes. Players will be required to observe a six-foot separation at all times.

• No caddies are permitted.

• No large gatherings, including fundraisers or tournaments, will be permitted before June 20.

• Face coverings, such as scarves, bandannas and neck gaiters, shall be worn by players and workers.

• No in-person dining will be allowed at clubhouses.

RECOMMENDATION: Boards should pay close attention to health department directives and loosen restrictions as appropriate. If they are uncertain how best to proceed, boards should seek legal counsel.

POLITICAL SIGNS
IN WINDOWS


QUESTION: We have a tenant who placed a political sign in his window. I’m not completely opposed to their choice in candidates but it not only looks tacky, I’m concerned neighbors will toss rocks at the window. -Jamie P.

ANSWER: They say disasters come in threes. First was SB 323, then the coronavirus, next will be an accelerated election season with lots of heated rhetoric. Although associations can prohibit signs in the common areas, they cannot prohibit political signs, posters, flags or banners on or in an owner's separate interest. (Civ. Code §4710.)

Exceptions. Associations can prohibit (i) signs made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces, and (ii) signs or posters more than nine square feet in size or flags or banners that are more than 15 square feet in size. (Civ. Code §4710.) In addition, signs, posters and flags displaying obscenity or fighting words can be restricted.

Time Limit Restrictions. Associations can also set reasonable time periods for displaying political signs. Many cities have regulations requiring the removal of signs between 5 and 15 days after the election. Some also limit the posting of political signs 45 to 90 days before an election. Associations can adopt similar restrictions in their rules and regulations.

Number of Signs. In addition to the above limitations, associations can regulate the number of signs displayed. (Fourth La Costa v. Seith.)


RECOMMENDATION: If boards have not yet done so, they should adopt rules regulating signage. A political pandemic is just ahead and preparing for it will help boards make it through without too much damage. Contact us if you need assistance.

THE ROLE OF
MANAGERS


Manager Advice. Is it true that if we don't follow the advice and counsel of our manager, board members could become personally liable? -George B.

RESPONSE: It is not necessarily true, but it can be. Boards are responsible for managing their associations. Managers are agents who take direction from the board. Manager recommendations are valuable because managers are familiar with industry standards and practices and provide insight for boards on how best to manage their communities.

Certified Managers. If managers are certified, it means they have taken classes on proper financial and management practices. Part of the certification includes classes on the Davis-Stirling Act, which means they have a working knowledge of many, but not all, laws affecting associations. If a board is about to take an action that could have significant legal consequences and the manager advises the board to seek legal advice and the board ignores that advice, the board could find itself embroiled in litigation. Discovery will bring out the fact that directors ignored the advice.

Business Judgment Rule. To avoid personal liability for their decisions, directors must follow the Business Judgment Rule and make decisions that are (i) in good faith, (ii) in the best interests of the association, and (iii) with reasonable inquiry. If a board is warned to seek legal counsel and chooses not to, directors fail the third element of the Business Judgment Rule. That could expose them to personal liability. (Palm Springs Villas v. Parth.)

RECOMMENDATION: Pay attention to managers and make sure you seek advice from experts in their fields when appropriate--legal counsel, certified public accounts, architects, engineers, etc.


Parking Rules. We have a street that, until 2019, we thought was a private street. It turns out to be a city street. Since 1972 we have enforced street parking rules on this court. The management company we hired in 2018 said we cannot enforce HOA parking rules on a city street. Is that true? -Jeff R.

RESPONSE: No, it's not true. You should not be taking legal advice from a management company. Doing so could cost you the protections of the Business Judgment Rule. As noted above, managers are good at raising red flags so boards know when to seek legal counsel, but they should not be the ones giving legal advice. See "Managers Practicing Law." When it comes to enforcing parking rules on public streets, see "Public Street Rules Enforcement."

 

Thank you, and I love your newsletter! -Kathy S.

Thank you for your continued updates during this trying time. Hope all your loved ones are healthy and safe. -Joyce B.

Thank you for your exceptional newsletters. I read and save every one, and forward them periodically to other board members when they have articles of immediate relevance. -Stephanie C.

Thanks again for your fantastic newsletter. -Dave K.

A neighbor at my condo forwarded your newsletter and I signed up. It’s very informative. Thank you. -Tanya C.

In today's newsletter you mentioned "if someone walks their dog without a face mask, the association does not have the authority to impose a $1000 fine..." I appreciate this comment. I have been trying for weeks to find a face mask for my dog to no avail. Many sites say they have them but they are scams. My dog has looked at several masks on the internet but shook her head to indicate that they were not the masks for her. Thanks for your informative newsletter. -Peter L.

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.

COVID-19 Security Issues

Apr 24, 2020 0 Views 0 Comments

Wi-Fi Jammers. Four burglars broke into our gated condo garage. We had wi-fi surveillance cameras which were all disabled with a wi-fi jammer. The device can disable any wi-fi camera within a 30-foot range. My advice is to hard-wire surveillance cameras or place wi-fi cameras at a greater distance from each other. -Guy T.

RESPONSE: With so many people out of work because of the shutdown, we may see an uptick in crimes. So far, Governor Newsom seems to be doing good job managing the crisis. He reacted much faster than New York's governor and we have not been impacted to the degree it has. Hopefully, he will loosen restrictions soon and allow people to return to work. If he doesn't, the economic crisis may overtake the health crisis.

Security Cameras with Signage. Are there any laws that pertain to using security cameras in an HOA setting? They are located at entrances and exits to our community and throughout the clubhouse. There are no signs showing that you are on camera anywhere in our community. Should there be signs posted by law? -Gary I.

RESPONSE:
Associations can install surveillance cameras in the common areas so long as they are not viewing areas where people have a reasonable expectation of privacy, such as restrooms, locker rooms, or the interior of an owner’s unit. (Penal Code §647(j).) I am not aware of any requirement that signs be posted. Cities have traffic cameras everywhere without signage. So do casinos and many businesses. Some businesses, however, prominently display signs as a deterrent. Associations can choose to either post warning signs, or not.

Internet Cameras. Do most boards deny access to homeowners to view internet security cameras? -Richard C.

RESPONSE: I don't know the percentages but I know some boards allow all members to view internet security cameras 24/7. It puts more eyes on the common areas so there is a greater opportunity someone will see something and report it.


Viewing Security Recordings. Do residents have a right to privacy regarding who or why someone can view footage from security cameras? -Dianna B.

RESPONSE: There is no right to privacy when someone is outside their unit where they can be seen by others. As noted above, some boards make video feeds available to all members 24/7. Others make it available on an as-needed basis. For example, a car is broken into and the victim wants to view footage from the security cameras, he/she is allowed to view the recordings.


Posting Photos. Our cameras took excellent photos of strangers breaking into vehicles in our garage. I’d like to post their photos at our entries with the word BEWARE. However, other board members are concerned that it may make us liable for defamation or the like. -Roswitha M.

RESPONSE: Yes, your board can post pictures. Instead of saying "Beware," the message should be "Can anyone identify this person? He is a person of interest in recent car break-ins." I once made this recommendation to the board of an association. There was concern that posting the photos in the common areas would reduce property values. I argued that security was more important. They posted photos and it led to the capture of the person. Members were grateful for the board's decision.

ENFORCING HEALTH
DEPARTMENT DIRECTIVES


I received a number of questions about health department directives. There continues to be confusion about the association's role in a pandemic. This is an example: "I am even more confused by yesterday's newsletter that the board cannot enforce state orders? Who does then?"

Compliance or Enforcement? There is a difference between compliance with health department directives imposed on associations and enforcing directives imposed on individuals. If associations are ordered to close their gyms, associations must close their gyms or face fines. If a county or city health department directs everyone to wear masks and practice social distancing, the order is directed at individuals, not associations. The issuing authority (state, county, city) is the enforcer of its directives, not boards of directors.

Imposing Fines. If someone walks their dog without a face mask, the association does not have the authority to impose a $1,000 fine on behalf of the county's health department. If an association wants to adopt it's own emergency rules that residents wear a mask when walking their dog, it can do so, and levy a reasonable fine (after a noticed hearing) when members violate the board's emergency rules.

CDC Guidelines. If residents wear face masks and practice social distancing in an empty parking lot to sing songs, the board cannot impose fines on behalf of the health department. It can, if it so chooses, adopt its own emergency rules and impose its own fines. Boards can decide for themselves what rules they want to adopt related to their common areas. Requiring masks and social distancing in common area hallways, elevators and lobbies makes sense. Fining residents who wear masks, maintain social distancing and sing songs outdoors is not something I'm comfortable recommending. However, that is a decision for each association to make.

RECOMMENDATION: Boards should work with legal counsel to adopt emergency rules that make sense for their associations. Then, be ready to adjust them as health department directives and CDC recommendations change.

REOPENING
RECREATIONAL FACILITIES


Golf Course. We have a private golf course in our gated community. Can we use it if we maintain social distancing? We need the exercise. -Marty R.

RESPONSE: I understand that when faced with being sequestered with their wives or risk contracting the coronavirus, golfers play golf.

Whether an association can open its golf course depends on the county it's in. Some counties have ordered the closure of all golf courses. Here is an example:

All golf courses in the County of ****, whether public or private, and their ancillary use areas, which include but are not limited to parking areas, clubhouses, driving ranges, practice putting greens, and food and beverage service areas, are hereby closed effective immediately and shall remain closed until June 19, 2020, pending further Order of the Public Health Officer.

As discussed above, this is an order aimed as all organizations, including homeowner associations. As a result, boards have no discretion in the matter, they must close their golf courses. Once the order is lifted, boards will then have the discretion to open them or keep them closed. I suspect most will immediately open them.

QUESTION: We have residents complaining because our pools are still closed. Do you know when they will allow us to use them? -Erica H.

RESPONSE: As the state loosens restrictions, we will report them. For example, this Monday Riverside County reopened its golf courses. See news article.
Boards will need to pay attention to constantly changing health directives. Those directives will be at three levels, state, county and city, and they are not always consistent. The most restrictive ones will generally apply. A county might lift restrictions on golf courses but a city in that county might keep restrictions in place.

VIRTUAL
MEETING LEGISLATION


Currently, the Davis-Stirling Act requires a physical location where members can gather whenever the board holds virtual meetings. (Civ. Code §4090(b).) With stay-at-home orders in place, all board meetings in the state are being held by teleconference without designating a physical location. As such, all meetings are technically in violation of the statute.  

CLRC Memo. California's Law Revision Commission (CLRC) recognizes the problem and will consider a solution at its May 21, 2020 meeting. In an April 6, 2020 Memorandum, the Executive Director of the CLRC, Brian Hebert, noted that Governor Newsom issued executive orders that allow state and local government bodies to conduct public meetings entirely by teleconference, without a physical location for public attendance. Mr. Hebert believes it makes sense to allow common interest developments to use a similar approach whenever a pandemic emergency is declared.

Expanded Exception. After reading his memo, I contacted Mr. Hebert and suggested the CLRC expand the exception to include any natural disaster, such as wild fires and earthquakes. Over the past few years, huge wildfires have destroyed entire CID communities scattering members to the four winds. Under those conditions, it is impossible for members to assemble in one location to monitor board meetings. Changing the statute to allow for all emergencies, not just pandemics, would provide needed relief.

Encouraging. Mr. Hebert said he would raise it with the Commission. CAI's California Legislative Action Committee (CLAC) will be working with the CLRC on this issue. It should be noted that the CLRC did an outstanding job when it undertook the very difficult task of rewriting the Davis-Stirling Act which went into effect January 1, 2014.


Very informative newsletter. -Paul Y.

Thanks for your awesome newsletter. -Randy W.

Thank you so much for these newsletters and answering my question about masks. You are a beacon in this storm. I'm working, of course. You can only imagine the craziness here and with the owners. -Helene S.

Thank you for continuing to update us during this crisis. -Lee D.

Thank you for your all your pro bono counsel on the tangled web of CC&R law. Your perspective is my saving grace. -Dino 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.

More Meeting Questions

Apr 22, 2020 0 Views 0 Comments

Meeting Notice: We have a 55+ community that includes sophisticated computer techies to unsophisticated landline-only individuals. What are the requirements for giving notice to everyone. We have about 70% of our owners on a eBlast list. -Bob C.

RESPONSE: Meeting notices may be given by any of the following methods: (i) in a billing statement, (ii) by email, fax, or other electronic means--if the recipient consents to that method of delivery, (iii) by first-class mail, (iv) in a newsletter, or (v) posted in the common areas.

Posting Plus Email. If you post your notice in a prominent location in the common areas, you fulfilled your notice requirements. That means you don't need everyone's consent to use their emails to give a supplemental notice. Once you post notice of the meeting, you can send an email to the 70% of your membership who provided their email addresses. Be careful to use a service that does not expose everyone's email address to everyone else.

Protect Email Privacy. When Marjorie Murray's Center for Homeowner Association Law sponsored SB 323, they exposed everyone's email address to all other owners. While
encouraging the other 30% of your membership to provide their email addresses so they can receive notices and documents, make sure they opt out of sharing their email addresses with others.

Censured Director. In a dozen years managing HOAs, thankfully, I have only come across the need for an “official” censure on two occasions and, each time, I’ve wondered whether I was giving the best recommendation to the board for recording the censure. -Jason M.

RESPONSE:
The purpose of a censure is two-fold, to curb bad behavior and to limit potential exposure of the association to legal liability. It's not often I recommend censuring a director. There are generally two instances when it comes up. The first is when a director is abusive with other directors, homeowners, staff or vendors. The second is when a director discloses confidential information, interferes with a vendor's contractual obligations, defames a vendor, etc. Depending on the particular instance, I might recommend the censure be recorded in the executive session minutes only. In other instances, it might go in the open meeting minutes. 

RECALL MEETING
QUESTIONS


Recall Petition. If a valid petition is circulated for whatever reason, can board members sign or is that not allowed? Also, can board members create and circulate a valid petition? -Tara B.

RESPONSE: Yes, board members can both initiate and sign a recall petition. I've had boards initiate recalls of abusive or untrustworthy directors. Unfortunately, if the association has cumulative voting, the recall effort is very difficult. A handful of an abusive director's friends can block a recall even if a majority of the membership wants the director off the board. That's why I advise all associations to amend their documents to remove cumulative voting.

Recalled Director. Can a previously recalled board member run in another election? Or does the recall status disqualify them? -Linda D.

RESPONSE: A recalled director can run again. Because of SB 323, you can no longer prevent that from happening.

Recall Termination. I manage an association that may have the entire board recalled. The existing board gave our company a termination notice. Can the board terminate our services during a recall? And, can homeowners who are delinquent sign the recall petition? -Kate W.

RESPONSE: If they follow the terms of the contract, the board can terminate management services and hire another company. There is no guarantee the board will be recalled, which means boards can continue to function for as long as directors are in office. It has been my experience that most recalls fail unless the board has been particularly egregious in its behavior. Yes, delinquent owners can sign petitions.

ANNUAL MEETING
QUESTIONS


Trustee Eligible? I read with interest your response regarding a spouse not being eligible to serve on an HOA board if she is not on the title. What if the property is in a trust and the spouse is the beneficiary? Is she eligible to serve? -Lori R.

RESPONSE: The spouse on title as trustee is the only one who can serve on the board. Because of SB 323, the beneficiary spouse can longer be elected to the board.


No Quorum. Our annual meeting took place in February. We did not meet quorum so it was pushed to March. In March we still did not reach quorum. Now we are in April without a quorum. How can we count ballots if we cannot gather together? Are we still required to have a teleconference meeting even if we don’t have a quorum and even if there isn’t enough of important information to make the effort? -Jim M

RESPONSE: Without quorum, there is no point in meeting. To make quorum, you need to plead with owners to mail in their ballots (which is why I recommend amending your bylaws to eliminate quorum). Since the only real business conducted at an annual meeting is the election of directors, you could skip the meeting portion of the election and go straight to the counting of ballots. Once you hit quorum, your inspector can video the opening of ballots and tabulating votes. The recording can then be posted for members to view. This allows you to hold your election without violating social gathering restrictions. Having said that, teleconference meetings are not that difficult to hold. You should try it.

MISCELLANEOUS


Two Signature Rule. Your answer “Yes,” to the question about having only the treasurer sign checks during the Covid-19 Pandemic was rather cavalier. Where does it say that the two person rule can go away? -Jim K.

RESPONSE: The two signature rule applies reserve funds, not operational checks. (Civ. Code §5510(a).) The reader asked about operational checks.

Americans With Disabilities Act. Could you please elaborate on how the ADA does not apply to associations? We've had at least one expensive mediation regarding parking and ADA. In the nine months I've been on the board we've had two additional situations arise where ADA was cited in the board level discussion. -Anonymous

RESPONSE: There are two primary areas of law addressing disabilities, the Americans with Disabilities Act and Fair Housing laws. The ADA applies to public businesses and facilities, which is why it does not apply to homeowner associations. There is an exception. If an HOA invites the public into the development, it must make those areas used by the public compliant with ADA requirements. For example, if an association allows its clubhouse to be used as a polling station, the clubhouse must be wheelchair accessible as well as its restrooms. Reasonable accommodation issues, most often involving parking and emotional support animals, fall under Fair Housing laws.


We love your newsletter! It surely should be read by every board member. -Roswitha M.

“Blood on the walls...” lol. I am a huge fan of whomever wrote this letter. So appreciative of your candor, professionalism and solid communication. -Nicole

Your response about pandemic county orders is creating confusion about board authority versus county health department directives. I thought it was clear as day. You should have made fun of her!! LOL!! (just kidding) -Stephen J.

RESPONSE: The confusion over jurisdictional limits is genuine, including lawyers not familiar with CIDs. I think the ones who are most confused are legislators. I will cover this a bit more in another newsletter.

I am amazed at all he people who feel cooped up in their homes due to the coronavirus. Just another indication of how society has changed over the past 20-30 years. We seem to be unable to be happy just "being." What a great opportunity to clean out all the clutter in our homes; read a few good books; connect with family and friends via phone or e-mail. In general, just being happy! I like your idea of allowing singing together while maintaining distance. It shows that some people are being creative. Lets have more (distanced) creativity and less grumbling!! And yes, lets get rid of this ridiculous bill passed by the legislation suggested by Mrs. (Nutso) Murray. -Sue M.

In regards to Ms. Marjorie Murray’s disaster (SB 323). As disgusted as I am with it, I feel in a way she is receiving a lot of bad press that she is not fully entitled. I encourage the next time the campaign starts to repeal this monstrosity, instead of sitting on their butts and wait for someone else to write a letter to their senator or assemblyperson, write the letter themselves and email it to their legislator and let the know how negatively SB 323 has affected their lives, then they will have a huge impact. The inaction of the people is very disheartening. -Don C.

RESPONSE: When it's time, we will alert everyone to a call to action.

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.

Health Department Directives

Apr 20, 2020 0 Views 0 Comments

Confusion: Your response about pandemic county orders is creating confusion about board authority versus county health department directives. -Shirley P.

RESPONSE: Many are confused about the role of associations when it comes to enforcement authority. While boards must comply with applicable laws, such as the Davis-Stirling Act and Corporations Code, they are not the enforcers of laws and ordinances issued by cities, counties and the state.

Traffic Laws. For example, associations are not the enforcers of state traffic laws. If an association has private streets, boards must adopt their own traffic and parking rules which they enforce with fines and suspension of privileges. Associations can issue a fine for speeding if they adopt rules regulating speeds in their community. The same is true for pandemic directives.

Gym Directive. If all gyms in the state are ordered closed, boards have jurisdiction over common area gyms and the power to close them. If the county issues a directive that everyone wear masks when outdoors, the association is not the enforcer of the county's directive. They can't stand outside and ticket people not wearing masks. They can, however, adopt their own rules about wearing masks in the common areas. Many condominium associations adopted emergency rules about wearing masks in common area hallways, elevators and lobbies. 

Private Parks. Associations can also adopt rules regulating their common area greenbelts and parks. If the board decides it's okay for a family to picnic in the park, it's within their jurisdiction. If a neighbor reports the family to the authorities, and police ticket the family, in my opinion it's heavy-handed.

Unit Guests. If an owner invites a couple to his unit, it would be a overreach for an association or civil authorities to fine the owner and his guests. We are in a pandemic but that does not mean we can put people in straightjackets. I would not be comfortable advising a board to report the owner to the authorities. At some point, some balance needs to enter the picture.

RECOMMENDATION: If associations want to adopt emergency rules related to the coronavirus, they can do so. Boards should work closely with legal counsel on the rules. Even though restrictions will soon be loosened, a second round may be imposed later in the year if the virus mutates.

POOLS AND SPAS


Doctor's Note. We have our pool and spa closed in our 55+ community. We have a handful of residents who are angry because they use the pool for exercise and therapeutic activities. Their doctors and chiropractors are sending us letters about the importance of the pool to their patients.

Recently we received a lawyer letter stating we were in violation of the Americans with Disabilities Act. I can't imagine any judge would rule against us for following official guidelines related to the virus. -John S.

RESPONSE: Cities and counties closed their own swimming pools, gyms, tennis courts and golf courses. I don't hear anyone threatening them with lawsuits. (If anyone sues, it would be the golfers.)
It should be noted that the Americans with Disabilities Act does not apply to associations. An association has no legal obligation to accommodate a request if it poses a threat to the health and safety of others. Restrictions should start to loosen shortly. Everyone should be patient.

HOA ESSENTIAL
SERVICES


Asphalt Repairs. Does it violate the governor's stay-at-home order to have 3 to 4 people meet to keep HOA business moving forward?

Our asphalt is really bad and the board is concerned about liability if someone falls on their bike, trips, etc. Is it okay for committee members and a vendor to meet to discuss proposals?
They would wear masks, stay 6 feet apart, and meet outdoors. -Lisa O.

RESPONSE: It's not a violation to maintain your facilities. Not only is maintenance an essential function, it's especially important if it involves safety. If you wear masks and maintain social distancing when you meet, you will be safer than grocery shopping. It is impossible to maintain social distancing in a grocery store and if you find toilet paper on a shelf, you put your life at risk if you reach for it. You could end up in a brawl.

Painting Fences. We are in the middle of painting common area fences. This project started before the pandemic and is continuing since painters can access fences without coming into contact with homeowners. Today I received a volatile email from a resident stating we had no right to access her rear yard and expose her to the virus. -Jordan L.

RESPONSE: She's been watching too much TV. News organizations have been running scary headlines 24/7 and people are overreacting. If she stays in her house, a worker painting her fence is not going to give her the coronavirus. Instead of dying from Covid-19, she is going to give herself a heart attack.
It's not worth getting into a battle with her now. You should skip her fence and continue painting other fences.

Signing Checks. Our HOA requires two signatures for checks to pay regular monthly bills (water, landscaping, security, etc). During Covid-19, can we revert to only the treasurer signing monthly checks to help with social distancing? -John

RESPONSE: Yes.

ADA Sidewalk. We have plans and permits for an ADA sidewalk at a private HOA park. Should we proceed or do we have to wait until stay-at-home orders are lifted? -Tessy A.

RESPONSE: Maintenance is allowed (construction crews are working on highways daily). It would be smart to get your sidewalks done now while demand for contractors is light. Once restrictions are lifted, there will be a flood of pent-up demand for contractors and you may have trouble getting the work scheduled.


Thanks for the newsletter. You are just great! I'm one of you many fans. -Ron S.

Your newsletters are invaluable, especially now with so many changes taking place in response to COVID-19. Thank you! -Jordan L.

"Blood on the walls" and "clothing optional" I love this! It is so true. I am trapped at home with my husband (who is trying to work from home, be a teacher, and provide childcare), my 6-year old in kindergarten, and an 18-month old. There will be blood on the walls if we couldn’t go outside! I appreciate your continued supply of information throughout this pandemic situation. -Christina G.

Thank you for the kudos to managers! Yes on all points! -Laurie N.

Love your newsletter. First thing I open from my list of emails. -Tessy A.

Support Staff. I'd like to give a shout-out to all of the support staff (non-managers) at all management companies, who are the real first responders or frontline for our homeowners, being primarily their first contact. Thanks to modern technology, we are here for our homeowners 100%. Also, I love reading your newsletter for the great information and humorous touch you weave throughout! Your response about family picnics and sunbathing question had me LMAO. "there could be blood on the walls" and "As long as they wear more than just a mask...". I totally get your common sense humor and I appreciate it. Keep up the superb work. You are doing this industry a great service! Thank you and may God bless us all! -Susan N.

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 Assessments

Apr 15, 2020 0 Views 0 Comments

I received a number of from readers emails arguing against the suspension of late fees and interest on delinquent assessments. They made the following points:

Wrong Signal. Suspending late fees and interest removes incentive for owners to pay their assessments. It sends a signal that it is okay not to pay regardless of whether they can afford to pay.

Bills to Pay. If no one pays their assessments, associations cannot meet their ongoing expenses, including management, insurance, utilities, repairs, pest control, security, etc. Unlike the Federal government, associations cannot print money.

Stimulus Bill. Starting this week, the economic stimulus package signed by the President is pushing cash to American households so individuals can pay their bills. Most adults will get $1,200, plus $500 per child. In addition, persons who were laid off will receive unemployment checks plus an additional $600 per week. Members should pay their assessments since the money is used to protect their homes.

Case By Case. Homeowners who can't pay their assessments can be addressed individually and enter into payment plans. If the person sticks to the plan, the board can waive late fees accrued for the period after March 20 when the Governor shut down the state's economy.


COMMENT:  Even though I favor the temporary suspension of late fees and interest, the above arguments have merit. Boards should pay close attention to their expenses and cash on hand, and then decide whether or not to temporarily suspend late fees and interest or keep them in place and deal with delinquent owners on a case-by-case basis.

INCREASED MEETING
ATTENDANCE


Successful Meeting. We hosted a very successful open board meeting last night via Zoom. We had better attendance than usual! Thank you for your support and recommendations to use Zoom.

In light of the success of Zoom and similar platforms for meetings, how soon will we see the law updated to allow for this permanently? I believe that hybrid meetings where some people meet in person and others meet remotely would engage more members to participate. -Marie W


RESPONSE: What you describe is already provided for in the Davis-Stirling Act. If all directors attend an open meeting by teleconference or video conference, notice of the meeting must identify at least one physical location where owners can attend and listen to or observe the board's meeting. (Civ. Code §4090(b).) That means a conference phone or monitor must be at that location so members can observe directors conduct the meeting. The arrangement must allow members to participate in open forum.

Under the Governor's current Stay At Home order, social distancing, and no gatherings, the public gathering option is not feasible. Hence, the recommendation that boards use Zoom or similar platforms where everyone can attend meetings without leaving home. I believe the statute should be amended to eliminate the physical location requirement since many associations do not have access to one. With current video and teleconferencing platforms, one is not needed--everyone has access to the internet and/or a telephone.


Profane Director. Can a board member be removed from office due to his profane, unacceptable and threatening behavior toward another board member in the common area? Do standard recall measures have to be followed? -Ben

RESPONSE: If the threatening behavior is related to board business, the board can use association monies to obtain a restraining order against the director. The board can also censure him in the minutes. As for removal, only the membership can remove the director via a recall election.

At the next election, if the profane director's seat is up for election, board members can campaign against him. I had one instance where four directors sent a letter to the membership (at their own expense) signed by all four directors telling members director #5 was impossible to work with and they would all resign if the membership reelected him to the board. The membership got the message and director #5 was not reelected.

PUT OUT TO PASTURE
WITH TERM LIMITS


QUESTION: I'm curious why you're so gung-ho on term limits. We have 3,400 members and rarely get a competitive ballot. And what about the experienced director who is put out to pasture with term limits? I would like to hear your reasoning. -Tracy C.

RESPONSE: Many (most?) associations do not have term limits for the reason you stated. Other associations are active and want to ensure turnover on their boards via term limitations. It works fine, until it doesn't. The problem with term limits is the loss of experienced directors if seats suddenly cannot be filled. 

For those associations that want term limits, we draft language that directors serve two full terms and then step down for one year unless there are not enough candidates to fill all seats, at which point term limitations are suspended.

Unfortunately, SB 323, which was sponsored by the Center for California Homeowner Association Law, knocked out term limits. That option should not have been taken away from associations. Fortunately, CAI's California Legislative Action Committee is working to restore the option to associations that want it. However, it's unlikely the legislature will approve anything this year. See Memo to Senate Committees.


Architectural Applications. When architectural applications are submitted and the work is not considered essential, should we deny these applications or tell applicants to resubmit once shelter-in-place orders are lifted? -Christel

RESPONSE
: Neither. It is better to process the application and let the person know if his/her application has been approved or disapproved. If it's approved, the person can make arrangements for work to commence once the Governor's order is lifted. If an architectural application is disapproved, the committee's decision must include both an explanation of why it was disapproved and a description of the procedure for reconsidering the disapproval. (Civ. Code §4765(a)(4).)

Emergency Rules. in the common areas of the building, some people are wearing masks, while others are not. Members are looking to the board or management to enforce wearing masks. I'm not sure that's in our scope. I know outside, in public, it's the law. But what about inside the building? -Helene S.

RESPONSE: Wearing masks is not a law passed by the legislature, it's an executive order from the Governor. Counties and cities issued similar executive orders. Boards can adopt their own emergency rules requiring all residents wear masks in the common areas, such as hallways, lobbies and elevators. Violations can be dealt with by issuing warning letters, holding hearings and levying fines.

Hopefully, that will not be necessary. If you adopt an emergency rule regarding face masks and post signs, most people will comply. Occasionally, someone who has no business living in an association will ignore all social norms and put other people's lives at risk. Those are the ones that need a letter from your association's lawyer.

Boards can contact us for friendly,
professional advice.


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