Election Rules: Equal Access to Media and Common Area

Election Rules: Equal Access to Media and Common Area

As with many provisions of the Davis-Stirling Act, we look to judicial decisions interpreting the statutes for guidance in applying them in our own communities. With respect to community association voting and election laws, however, the Courts have steered clear of published decisions leaving us to rely upon our own interpretation or that of legal counsel, until now. In Wittenberg v. Beachwalk Homeowners Association the Court of Appeals gave us a welcome interpretation of two provisions of the elections law, albeit an interpretation that to many seems obvious. The Wittenberg v. Beachwalk Homeowners Association opinion leaves no doubt that Civil Code Section 5105 requires equal access to association media and common area. But the opinion provides an important message to association boards in community association election matters: when the board advocates for or against a particular election position, it is treated no differently than any individual member. Equal access is required. Despite the best intentions, boards sometimes overstep their authority when purporting to act in the best interest of the community. This is particularly the case when an association incurs significant expense to amend its governing documents. The board will be compelled to advocate in favor of passing the amendment through town halls, campaigning and letter writing urging support for the proposed amendment. But under the Beachwalk opinion, such action will trigger the obligation to allow a member with an opposing view the right to hold his or her own town hall or use of the association media to advocate their views. In Beachwalk, the board conducted three election campaigns over a period of time to amend the association’s...
Court Provides Guidance on Who Can Attend Board Meetings SB Liberty v. Isla Verde Association Inc.

Court Provides Guidance on Who Can Attend Board Meetings SB Liberty v. Isla Verde Association Inc.

A longstanding issue of ambiguity and occasional dispute arises when a member tries to designate someone to attend a board meeting for them. Civil Code § 4925 (“Open Meeting Act”) states that “any member of the association may attend meetings of the board of directors of the association.” A dispute often arises when a homeowner wants to bring an attorney to a board meeting, or have their attorney attend a board meeting in their place. The Court of Appeals took a big step toward resolving such disputes when it issued its opinion in SB Liberty LLC v. Isla Verde Association. The SB Liberty Court was concerned with whether an attorney was the proper representative of an LLC in order to attend a board meeting. But the opinion has broader impact in other areas of community association governance including whether that LLC member can serve on the Board and the authority of the board to determine how to conduct its own meetings. What is clear from the opinion is that a member cannot send a “representative of its own choosing” to a board or members meeting and that the board has the authority to exclude nonmembers from its meetings. Isla Verde is an association of 87 homes in Solana Beach, into which Gregg and Janet Short bought a residence in 2006. They put ownership of the property first in a family trust, and later in an LLC called “SB Liberty LLC.” For reasons unexplained in the appellate decision, the Shorts sought to have their attorney attend a board meeting on their behalf. The Shorts executed a “Specific Power of Attorney”...

The Advantages of Judicial Foreclosure in Collecting Delinquent Association Assessments

Four Methods Of Response Associations in California have four basic options in dealing with delinquent assessments: Inaction, small claims court, non-judicial foreclosure, or judicial foreclosure. Inaction: The drawbacks of inaction are self-evident. Until the association pursues the debt, most often it will not be collected. Small claims court: This method involves no attorneys, and is quick. However, the association can only pursue claims of $2,500 to $5,000 twice a year. Also, small claims court can be unpredictable, and the results are not appealable if the judge (often a volunteer) gives the plaintiff association a bad decision. On the other hand, the defendant debtor can appeal. Non-judicial foreclosure: This method involves no attorneys. The association takes away the debtor’s property, without court supervision. The foreclosure process involves various notices to the owner and waiting periods, and concludes with the association owning the property. The Association cannot pursue any deficit if the property does not have enough equity to cover the debt. Judicial foreclosure: This method involves filing a lawsuit. In this lawsuit, the association pursues both ownership of the property (judicial foreclosure) and an award of money damages. Advantages Of Judicial Foreclosure The advantages of the judicial foreclosure process are numerous and substantial: 1)   In a declining or flat real estate market, the threat of foreclosure is less significant – many properties are “upside down” with no equity, so members have less reason to pay. 2)   In the current economy and real estate market, the association often should not take over ownership, but with non-judicial foreclosure that is the only option. If the association decides not to take the property,...

Aging America: Drawing a Line Between Community Living and Assisted Living

Many of today’s seniors believe they can forego assisted-living centers and age in place instead. That’s something community associations can’t ignore. Roughly 40 million Americans, or 13 percent of the population, are 65 or older. By 2030, the U.S. Census Bureau projects that number will rise to 72 million, or 20 percent of the population. Community association leaders need to take note of these numbers because seniors increasingly are choosing to remain in their homes rather than move to adult-care or assisted-living facilities. In addition, the supply of family caregivers, who provide the majority of long-term services and support, is unlikely to keep pace with future demand, according to AARP. As people live well into their 80s and 90s, that will put increased pressures, obligations and potential liabilities on associations. The following article contains information and perspectives from community association stakeholders who have handled aging-in-place concerns professionally and personally. If your association hasn’t started talking about how it will handle its aging residents, it’s time. Aging residents have specialized needs and present unique challenges that board members and community managers aren’t trained or necessarily skilled to handle. Association governing documents are being tested by the aging population too. Hoarding, disorientation and physical limitations that prevent access to common areas are just some of the problems association leaders increasingly will face. These issues pose a threat to the safety and welfare of the individual resident, but they also present risks for the community and its other residents. Managers and board members must be mindful of how to recognize and respond to these issues without unnecessarily assuming liability or invading an...
A Proactive Approach to Controlling Short-Term Rentals in Your Community

A Proactive Approach to Controlling Short-Term Rentals in Your Community

Whether through the Courts, the Legislature or human nature, from drought restrictions to email prohibitions, community associations are often forced to adapt quickly to change in order to govern effectively. In the case of the short-term rental craze, this change seems harder to tackle. Indeed, the short-term rental market is having an increasing impact on community associations. Residents often complain that short-term renters – who are transient by definition – do not treat association common areas with the same regard as resident owners. Most are unaware of association rules and contribute to mounting security, trash removal, parking, and noise related concerns, not to mention the increased common area expenses that come with the increased burden of handling short-term renters. On an emotional level, residents are often uncomfortable with the fact that their neighborhoods are filled with unfamiliar faces, many of whom are on-site for only a few days at a time. The idea of transient rentals in our communities seems at odds with the objective of maintaining the residential character of our neighborhoods. We all have seen provisions in our communities’ documents that prohibit “non-residential” use of a unit, or that restrict use of property for “private single-family residential purposes.” While many associations have adjusted to an increase in tenant occupied residences in their communities, this “business” use of a residence, where unfamiliar groups of people share the common area and facilities for brief periods of time, never to be seen again, is incompatible with everything we’ve come to know and understand about community associations. The short-term use of a residence only adds to the resentment towards tenants who...
Improve Your Board Meetings: Drafting a Code of Conduct for the Board of Directors

Improve Your Board Meetings: Drafting a Code of Conduct for the Board of Directors

A common frustration for managers and association boards of directors is dealing with issues that arise out of conflict with individual board members. At some point we have all heard of the board member who is hostile, disagreeable or the proverbial “loose cannon.” Other boards have struggled with how to rein in the director who consistently advances his or her own agenda without regard to the best interests of the association. Finally, there are directors elected, for whatever reason, who feel compelled to reveal confidential information about the association to third parties. Unfortunately, the Corporations Code does not yet contain a provision allowing the board to remove a director for behaving badly. The slap on the wrist that follows improper disclosure or misconduct does little to undo the damage already done. There are, however, viable options available to managers and boards to address misconduct. In most cases, the most direct option to control improper behavior is censure. There is no more effective method of controlling improper behavior than by confrontation by one’s own peers. Like any disciplinary hearing, the director should be advised of the improper conduct committed and be provided with an opportunity to explain his or her actions. The director should also be cautioned that continued misconduct will result in further disciplinary action by the board to protect the association and could include obtaining a court order seeking to enjoin their conduct detrimental to the association. If the conduct committed is improper disclosure of confidential information, the best option is to exclude that board member from executive session meetings, or from receiving executive session material or both....
Community Association Fair Housing Update

Community Association Fair Housing Update

The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race; color; religion; sex; national origin; familial status; or disability. In the context of Disability and Community Associations, instead of enforcing the rules and regulations equally against all residents, the FHA allows a community to “discriminate” so to speak, by making an exception to a rule to accommodate a disabled resident. It isn’t always about service animals or comfort pets; it’s about providing all residents with an equal opportunity to use and enjoy their housing. Perhaps more than ever before, fair housing regulations are impacting community associations as to how they govern, address common area modification requests, and enforce their rules. Communities are looking for ways to accommodate their residents who, for a variety of reasons, need to modify a common area or need an exception to a community rule to have equal use of their residence. A qualified resident with a disability is allowed a reasonable exception to a rule, or permission to make a reasonable modification to common areas at her expense i.e.; a reasonable accommodation. For some time now, the California Department of Fair Employment and Housing (DFEH) has been working on changes to the California Code of Regulations covering the Fair Employment and Housing Act. Most recently, on June 22, 2018, DFEH issued a Notice of Modifications which will likely impact how community associations address resident requests for reasonable accommodations. While the proposed modifications are being developed, it is our hope that the modifications clearly address such critical issues as 1) who pays for the modifications; 2) restoring the property after the...
Amendments to the Solar Rights Act: Legislating Away Control of Common Area

Amendments to the Solar Rights Act: Legislating Away Control of Common Area

Perhaps the most contentious example of forced use of common area for environmental policy purposes concerns the installation of solar energy systems on condominium roofs. The number of U.S. homeowners who have their own solar panels has grown steadily since 2000. The increased interest in harnessing the sun’s power in the face of a rising market for high density residential living seems to have attracted the solar industry’s attention to the growing number of consumers who can’t put panels on their own roofs. Solar panels have been around for decades, but legislation relating to solar energy systems is evolving rapidly and is, in many cases ambiguous or over-reaching. Across the country, state lawmakers are taking steps to enable private companies, nonprofits, homeowners associations and others to develop and run community solar projects. Approximately twenty-five states currently prohibit or offer the ability to prohibit covenants or restrictions placed upon homeowners which would prevent the installation of solar powered panels and associated devices; however, only California expressly allows the installation of panels on common area roofs of multi-unit condominium buildings. Others suggest that common area installation is permitted with association control. Even homeowners in pro-solar states like California are struggling with unclear statutory language, a situation which has been significantly exacerbated by a recent extension of the California Solar Rights Act. California Assembly Bill 634 (effective January 1, 2018) amended the Solar Rights Act by providing homeowners with the right to install solar on the common area roofs and adjacent garages and carports of condominium properties, subject to only “reasonable” restrictions that “do not significantly increase the cost of the system...
Community Association Legislative Update New Laws for 2018

Community Association Legislative Update New Laws for 2018

2017 was one of the most active legislative years for Community Associations in recent memory. Perhaps it was the Governor’s “official” end of the drought that left State lawmakers with time to micromanage our communities on issues from free speech to solar; from new disclosure obligations to recording fees. Now that the dust has settled, we are left with the following legislation for our communities to adjust to in the coming year. SB 2 (Sen. Toni Atkins) Building Homes and Jobs Act (Imposes a $75.00 fee on recorded real estate transition documents (excluded commercial and residential sales) to provide funds for affordable housing.) Under the guise of funding affordable housing throughout the State, beginning January 1, 2018, SB 2 imposes a $75 fee on every real estate instrument, paper or notice required or permitted by law “per each transaction, not to exceed $225 per transaction.” The fee does not apply to documents recorded in connection with a real estate sales transfer. The fee does attach to grant deeds, deeds of trust, abstracts of judgement, notices of default and liens and releases of liens. In other words, this law will impact community association assessment collection by adding to the fees an association is charged for recorded documents, fees which ultimately will be passed on to the delinquent owner. The author of SB 2 describes the bill as establishing a vital ongoing funding source for affordable housing. The law requires the funds collected be deposited into the Building Homes and Jobs Trust Fund to be allocated to affordable housing programs and to local governments for affordable housing and homeless related programs...
Change is Coming! Amending Your Governing Documents to Define Community Maintenance and Repair Responsibility

Change is Coming! Amending Your Governing Documents to Define Community Maintenance and Repair Responsibility

Many CC&Rs, particularly those in older communities, do not adequately identify or define maintenance and repair responsibility for exclusive use common area components such as patios, balconies, exterior doors and similar components. And when there is uncertainty between an owner and the association as to who is responsible for a repair, disputes are inevitable. Fortunately, Civil Code Section 4775 fills in the blanks. In the absence of well-defined CC&Rs, we look to Civil Code Section 4775 which currently provides: that the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest. The problem with the above language is that it is vague. For years, this language left much to legal interpretation as to what exactly the owner was responsible for and where does maintenance begin and repair or replacement end. Fortunately, our legislature provided a degree of relief in the following amended Civil Code § 4775 adding section (a) (3), which takes effect January 1, 2017. The clarified language provides that unless otherwise provided in the declaration of a common interest development: “The owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest.” The association is responsible for repairing and replacing the exclusive use common area. Although this revised language clarifies the line between maintenance of the exclusive use common area, and repair and replacement of that exclusive use common area, the amendment doesn’t really change the law....