State Releases New Guidance to Help Counties Plan for Reopening Based on Decisions by Local Public Health Officials

State Releases New Guidance to Help Counties Plan for Reopening Based on Decisions by Local Public Health Officials

By Robert M. DeNichilo, Esq., CCAL Last Friday, the California Department of Public Health issued new guidelines for reopening additional sectors of the economy. The new guidance contains two main points of interest to community associations including Fitness Facilities and Outdoor Recreation. While neither document specifically referenced HOAs, both documents provide guidance for reopening pool areas, and the Fitness Facility Guidance includes information for associations that have gyms. It is important to note that these go into effect no sooner than June 12, 2020, and only after county health officer approval following review of specific criteria related to the spread of coronavirus infection. While much of the California Department of Public Health Guidance is similar to what was previously issued by local counties, we now have specific guidance documents that local counties can adopt once the local health official approves reopening facilities, which include: Physical distancing guidelines Cleaning and disinfection protocols Considerations for communal restrooms and shower facilities, systems for cleaning and disinfecting furniture and equipment, Providing physical cues or guides (e.g., lane lines in the water or chairs and tables on the deck) Visual cues (e.g., tape on the decks, floors, or sidewalks) and signs to ensure that patrons and swimmers stay at least six feet apart from one another, both in and out of the water. The complete list of new guidance from the California department of public health are provided below: Campgrounds, RV Parks, and Outdoor Recreation (PDF) Hotels (PDF) Cardrooms, Satellite Wagering Facilities and Racetracks (PDF)  Family Entertainment Centers (PDF) Restaurants, Bars, and Wineries  (PDF) Fitness Facilities (PDF) Museums, Galleries, Zoos, and Aquariums (PDF) More information about the state’s COVID-19 guidance...
Don’t Let Covid-19 Stop Your Board Meeting, Electronic Meetings in Times of Pandemic

Don’t Let Covid-19 Stop Your Board Meeting, Electronic Meetings in Times of Pandemic

By Robert M. DeNichilo, Esq., CCAL With schools cancelling classes, organizations cancelling events, and today’s announcement from California Governor Gavin Newsom that California’s public health officials have issued a new policy on public gatherings to help stop the spread of the coronavirus (COVID-19), many boards are wondering if they can hold board meetings electronically. The answer is yes.If a board is concerned about meeting in person, meeting electronically is a good option. The California Corporations code allows board members to appear at meetings electronically. Board members can attend any board meeting electronically by telephone or video, so long as they can hear all other board members, and all other board members can hear all other directors not physically present at the meeting. If all directors attend an open meeting via electronic means, the notice of the meeting must identify at least one physical location where members can attend, and have at least one board member, or someone designated by the board, who shall be present at that location. This means, at least one speakerphone must be at the designated location so members can hear the meeting. This also allows for members to address the board during the homeowner forum portion of the meeting. Alternatively, there are many tools that can make an electronic meeting more efficient. Services such as Skype, Facetime, Google Hangouts, all offer free video conferencing tools where board members can see and hear each other. Other video services, including Zoom or GoToMeeting, even offer screen sharing so that those on the video conference can all see the same screen at the same time. Video conferences are...
HUD Issues New Guidance on How to Evaluate Requests for Reasonable Accommodation Request for Assistance Animals

HUD Issues New Guidance on How to Evaluate Requests for Reasonable Accommodation Request for Assistance Animals

By Robert M. DeNichilo, Esq., CCAL Over the last several years, community associations have experienced an increase in the number of residents claiming the need of assistance animals. These claims are often supported by documentation readily obtained by answering a few questions online. The ease of qualifying assistance animals has led to abuse by those who want to keep a pet, despite association rules and restrictions that might prevent them from doing so. This abuse has also caused confusion for associations without guidance on how to evaluate the claims for reasonable accommodations by residents with a real need for assistance animals. The Community Associations Institute (CAI) raised this issue with the Department of Housing and Urban Development (HUD), and HUD has now responded. On January 28, 2020, HUD released a new Guidance Sheet and Facts Sheet on how to evaluate requests for reasonable accommodations for assistance animals. In the new guidance, HUD provides best practices to assist housing providers, including community associations, with a detailed step-by-step checklist to follow when evaluating requests for reasonable accommodations related to service animals. HUD also provides guidance on the additional information those seeking accommodations may need to provide with requests. HUD RECOGNIZES THAT INTERNET CERTIFICATES MAY NOT BE RELIABLEOne of the most interesting and important aspects of the new guidance is that HUD acknowledges that requests for an accommodation for an assistance animal are often supported only by a certificate obtained by answering a few questions on a website. The validity of these certificates is often questionable. HUD even states, such documentation from the internet is not, by itself, sufficient to reliably establish...
So, what does the “Inspector of Elections” do, anyway?

So, what does the “Inspector of Elections” do, anyway?

By Robert M. DeNichilo, Esq., CCAL The role of the inspector of elections can be a confusing mystery to members asked to serve in that role and to managers who may not really know what the job involves. Too often the inspector of elections is not appointed before the election process starts, and owners are frequently asked to serve in the role to open and count ballots at the time of the meeting set for that purpose. However, the inspector of elections has a far broader role than just opening and counting ballots, and with the enactment of Senate Bill 323, management or anyone under contract to the association can no longer act as the inspector of elections. Therefore, it is more likely that members will be asked to serve in this role and more important than ever that managers, board members, and homeowners understand what the role and duties of the inspector of elections are in community association elections. The California Civil Code sets out some very specific duties and requirements for the inspector of elections in California community association elections. Effective January 1, 2020, one of the changes imposed by SB 323 is that the inspector of elections can not be otherwise under contract to the association. This means that management companies, lawyers, CPA’s or others who are under contract to perform services, and employees of those firms, cannot act as the inspector of elections. Members who are not a director, or a candidate for director or related to a director or to a candidate for director, can continue to act as inspectors of elections. While members...

Responding to an Accommodation Request? What’s Your Policy?

With all the various moving parts that go into managing a community association, few issues cause more confusion or are as fraught with risk as dealing with a request for a reasonable accommodation or modification. Failing to respond timely, or denying a request when it is appropriate exposes the association to potential liability for violating fair housing laws. Granting one without getting sufficient information to determine if it is warranted exposes the association to potentially unnecessary expenses and potential breach of fiduciary duty claims. Asking for additional information to support the request might be a no-no. That is why having a good, clear, concise policy in place to guide a board of directors as to how to address such requests can go a long way to help navigate the potential landmines that responding to a request for a reasonable accommodation involves. The law defines “person with a disability” to include:  (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. In coming up with an appropriate policy it is important to understand what is a request for an “accommodation.” A request for an accommodation maybe a request to allow a disabled person to do something that would normally violate the governing documents. Accommodation requests can relate to any of an association’s rules, policies, practices, or services in order to allow the disabled person to have full use of their home and community, which they would not otherwise have as a result of...

Who’s The Boss?

The National Labor Relations Board’s New Standard for Determining Joint Employment May Make Community Associations and Management Companies Responsible for Contractors’ Pay, Benefits and Legal Liability [Reprinted with permission from CAI’s Common Ground TM magazine, September/October 2016] A board member of manager tells a landscape company’s employee that he or she can only work during certain hours on particular days of the week or directs the employee to plant flowers in a specific way or location. Or, if a board believes the association isn’t receiving the level of service it expects, it may try to require its management company to fire a manager or replace him or her on the account. These situations aren’t all that uncommon. Since the association is contracting for these services, the board (and maybe its manager) probably believes the contractor—and not the association—employs those individuals. However, under certain circumstances, the association could be found to be a “joint employer” of a contractor’s employees, which means a lot more fiscal responsibility and legal liability. In a 2015 case known as Browning-Ferris Industries of California (# 32-RC-109684), the National Labor Relations Board (NLRB) overturned a long series of cases in the collective bargaining arena. With the decision, the circumstances expanded under which an entity that contracts for services can be found to be a joint employer. The decision could have far-reaching implications for both community associations and management companies, making them responsible for the employees of landscapers, painters, managers and others who provide services to an association. Joint Employment The “joint-employer” doctrine isn’t a new concept in the law. A joint-employer relationship can exist when someone performs...

The ABC’s of IDR & ADR

Disputes between owners and associations can easily spin out of control. When those disputes result in a lawsuit, the costs, both in terms of time and money, can be significant. That is why attorneys often encourage parties to first meet and try to resolve those issues through some form of dispute resolution process before a lawsuit is filed. In fact, the law often requires that parties at least offer to meet in some form of alternative dispute resolution setting before they file a lawsuit, or they may lose the right to recover attorney’s fees even if they win the suit. California’s Davis-Stirling Act contains several sections that address, and sometimes require, the use of the dispute resolution process before litigation can be filed. The statutory process includes (1) Internal Dispute Resolution and (2) Alternative Dispute Resolution. Internal Dispute Resolution or “IDR” is an informal process where one or two representatives of the association (typically a board member and the association’s community manager) meet with the owner of the property at issue and try to resolve the issue informally. Civil Code section 5905 requires that associations provide a “fair, reasonable, and expeditious procedure for resolving a dispute” with members. Offering guidance on what is a “fair, reasonable, and expeditious dispute resolution procedure” in the IDR process, Civil Code section 5915 provides that (1) the procedure can be invoked by either party to a dispute, (2) the request to invoke the IDR procedure must be in writing, (3) if a member of the association requests IDR, the association must participate, but if the association is the one offering IDR, a member...

California Regulations Mandate Stricter Maintenance Requirements for Community Association Pools

Community pools provide welcome relief from summer heat. They also impose certain obligations on operators of those pools, including community associations. Recent regulations adopted by the California Department of Health define “public pools” to include pools maintained by community associations. The most dramatic changes are set forth in Title 22 of the California Code of Regulations (the “Regulations”) which were amended effective January of 2015. Others are contained in the California Building Code contained in the California Code of Regulations, Title 24, which also were amended, effective January 2014. Associations should know that local health agencies are starting the process of enforcing these new standards. Because some of these changes significantly impact the way associations must service, monitor, and track activity at community pools, associations would be well-advised to note the requirements and implement any necessary changes to ensure compliance now and down the road. Specifically, there are several amendments to the Regulations that affect association management of community pools, including (1) new parameters for water characteristics; (2) strict daily monitoring of public pool facilities and requirements for written records; (3) enforcement of specific safety and first aid equipment; (4) requirements that a public pool have at least one keyless exit and self-closing latches; and (5) imposition of health restrictions for employees or pool users. New Parameters for Water Characteristics As has been the case, operators of community association pools must use a chemical disinfectant to preserve the clarity of the water. It should be noted, however, that the amended Regulations require higher chlorine levels. Pools have one level of chemicals necessary, and spas, wading pools, and spray grounds...

A Guide to the Revised Davis-Stirling Act (AB 805)

I recently spoke to the Inland Empire Chapter of CAI regarding the upcoming changes to California’s Common Interest Development Act, or the Davis-Stirling Act, which takes effect on January 1, 2014. In preparation for that presentation, it became clear that despite the numerous resources available regarding the revised Act, many people are still concerned and wonder how the new law will impact their community association. The good news is that there is no reason to panic. The revisions to the Davis-Stirling Act were designed to be non-controversial. As a result, the substantive changes to the law are relative few in number and small in impact. In addition, there are some advantages to revising the Davis-StirlingAct. The current version of the Act has several “issues.” Sections which are logically related to each other are not located near each other in the Act making locating all the relevant sections difficult and confusing. Also, several sections are excessively long and complicated making them hard to read. The revisions to the Act make several changes which address the current version’s short comings. These include changes which group related provisions in a more logical order, long sections are divided into shorter, easier to read sections, more consistent terminology is used throughout the Act, and governance procedures are standardized. That does not mean there aren’t some disadvantages, however. The most significant of which is that those of us who deal with the Davis-StirlingAct will have to learn all over again what code sections contain various provisions due to the complete renumbering of the Act. While a board may want to consider amending the governing documents, there is no legal requirement to do so. However, the...

What Makes for a Good Set of Meeting Minutes?

Of all the various issues boards deal with, one of the issues that comes up time and again are meeting minutes. What are they? What should be in them? Incorrectly kept minutes can get a board in trouble. They can invalidate proper board actions, lead to claims for defamation or support claims for breach of fiduciary duty. So how should minutes be taken? What should go into the minutes and what should you leave out? First of all, it is important to understand the purpose of meeting minutes. Minutes are meant to be an outline of what happened in a meeting. They serve to ensure that the decisions and actions resulting from a meeting are not lost or forgotten. They should include not only reference to motions that passed, but also to motions that were proposed even if they were not ultimately adopted by the board. Once you understand that minutes serve as a record of ACTION taken, it should become clear that minutes are not a verbatim transcript of what was said in a meeting. Minutes should be as concise as possible. What the board did should be included, such as it reviewed a report and then made a decision, but not the discussion that or debate that led to the decision. Keep in mind that the minutes can often be used as a tool against the board and association in litigation. Keep the minutes short and to the point. What should you include in the minutes? As minutes should include what was done at the meeting, not what was said, record the details of what action was taken. Remember...