Pool Season Has Arrived, But the Pool Rules Have Changed

Pool Season Has Arrived, But the Pool Rules Have Changed

By Matt D. Ober, Esq., CCALThe following article has been updated as of May 21, 2020 with the latest information from the CDC. The following guidelines respond to the many questions Richardson|Ober|DeNichilo has received from community associations throughout the state about pool use and potential liability in light of the existing (and sometimes inconsistent) COVID-19 Orders in place. ASSESSING RISK A community’s response to the Pandemic is not a one size fits all.  Every board must assess the risk to their particular community. Whether to close or open a particular common area or community facility depends on the type of facility and the needs of the community. Like the saying goes, “Anyone can sue anyone for anything.”  What is clear is that a board must act to protect the community from known or foreseeable risks and take action in the best interests of the Association as a whole, given the facts presented and in reliance upon experts and counsel.  It does this by closing down facilities, or by disclosing to residents known conditions and how residents can take action to protect themselves. Yes, there is concern about liability if someone contracts COVID-19 after the board opens up the pool. But, it would seem difficult, if not impossible, for anyone to be able to establish that they contracted COVID-19 from the association pool or anything the board did or did not do regarding pool use. For example, someone walking to the pool may have walked past a home where someone sneezed. The greater risk is in not complying with existing COVID-19 Orders, or creating a situation that exposes residents to risk...
Addressing Mental Illness In Our Community Associations

Addressing Mental Illness In Our Community Associations

This article is reprinted from CAI-GLAC’s Focus May-June 2020 Issue Addressing Mental Illness In Our Community Associations May is Mental Health Awareness Month, and it is impossible to ignore the additional impact on our communities from the COVID-19 Pandemic. Under normal circumstances, we are impacted by the steady rise in occupancy rates in multi-unit residential communities. The challenges of individuals living in relatively close proximity to one another under rules enforced by lay leaders has its stress points that require each of us to develop a higher level of tolerance and a degree of civility. But the physical, mental, emotional and economic impact brought about by Stay at Home orders, closed businesses and layoffs, has turned many communities into pressure cookers. In times like these, the phrase “we are all in this together” does little to assist a community manager or volunteer director in dealing with a resident suffering from mental illness. Typically, the foundation of the community association model is to provide residents the tools they need to take care of themselves. But as more and more residents chose to stay in their homes as they age, we can’t ignore those living amongst us who can no longer take care of themselves, or lack the ability to control their behavior in the common area. Add to this the blurred lines between fair housing laws and private residential communities and we find ourselves at a place and time where many residents have specialized needs and present unique challenges that board members and community managers aren’t trained or necessarily skilled to handle. Adjusting to the needs of mental illness in community associations...
Open for Business, Planning for a Return to a New Normal

Open for Business, Planning for a Return to a New Normal

By Matthew A. Gardner, Esq. After 6 weeks of working to flatten the curve, Californians are eager, yet anxious, to resume some sense of their former routines. Although Governor Newsom gave no firm timeline for an end to the “Stay at Home” Order, he acknowledged that it is a matter of days and not weeks before California starts to reopen. The CDC recommends three steps before businesses resume operation: Develop a Plan Implement Your Plan Maintain and Revise Your Plan Owners and boards who are ready can start planning a phased reopening for their communities. Boards should not reopen their communities until they have considered their basic needs, and have a plan in place to address essential elements. Below are a few ideas to help communities and boards begin the planning process. Staffing Management of High-Rise and Planned Development communities usually require staff to monitor services. Communities that provide onsite services may need to be sensitive to requests for a return of larger groups of employees/management/vendors onto the property. Both owners and employees should continue practicing appropriate social distancing to reduce transmission. Staggered employment shifts may be required to maintain safety for owners and employees. Since employees will most likely be required to wear masks for the short term, think about how you can provide adequate gear and accommodations. Priority Warmer weather means a desire to utilize outside courts, playgrounds, pools, and picnic areas. However, boards still have to balance safety of the owners and compliance with state law. Communities should work with their management companies and legal counsel to prioritize which amenities pose the lowest risk and highest...
Responding to COVID- 19:  How to Manage Your Community While Reassuring Your Residents

Responding to COVID- 19: How to Manage Your Community While Reassuring Your Residents

By Matt D. Ober, Esq., CCAL It’s here. The “Natural Disaster” few saw coming and fewer still think they are prepared to handle.  Yesterday, the California Department of Public Health issued a statement that the gathering of 250 people or more should be postponed or cancelled. Smaller gatherings in facilities that do not allow for “social distancing” of six feet should be cancelled or postponed. Gatherings of people at high risk of illness should be limited to no more than 10 people. While our communities may have fire, flood and earthquake disaster preparedness plans in place, it is unlikely that many of us anticipated a virus would shut down our community or our country.  So how does a community association continue to govern in the face of such uncertainty, if not outright panic?  Rest assured you have trained for this. Whether a planned development, large scale, high-rise or condominium community, community association managers and boards have the skills to keep their communities operating while reassuring residents. You must use the tools you have – exercise business judgment, rely upon experts, provide full and fair disclosure, and perhaps above all, COMMUNICATE! Let residents know what you know. Tell residents what you or the board are doing and why, and reassure them that the association is taking every advisable precaution to do its part. Maintaining a sense of normalcy and avoiding overreaction, while taking advised precautions is the best way to reassure the community in these uneasy times. As in all decisions a board of directors must make, the business judgment rule requires that the directors act in good faith, in...
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...
California Opens the Door to Accessory Dwelling Units in Planned Development Communities with Assembly Bill 670

California Opens the Door to Accessory Dwelling Units in Planned Development Communities with Assembly Bill 670

The California Legislature has paved the way for the “granny flat” or “mother-in-law unit” in your community.  Formally termed the Accessory Dwelling Unit (ADU) this ever-popular form of housing is a legal and regulatory term for a secondary house that shares the building lot of a larger, primary house.  ADUs are either attached to or detached from the primary dwelling unit but provide independent living facilities for the resident.  Unlike ADUs, JADUs are no more than 500 square foot bedrooms in a single-family home with an entrance from the main dwelling unit and an entrance to the outside.  They need not have a bathroom. Cloaked with the good intentions of addressing California’s extreme housing shortage and increasing housing density, and modeled after similar laws addressing solar energy systems, electric vehicle charging stations, drought tolerant plants and artificial turf, Assembly Bill 670 adds Section 4751 to the Civil Code which renders void or unenforceable any CC&Rs provision or deed restriction in a planned development that either effectively prohibits or unreasonably restricts the installation of an accessory dwelling unit (ADU) or junior accessory dwelling unit (JADU) on a lot. Civil Code Section 4751, however, does allow, an association to enforce reasonable restrictions that do not unreasonably increase the cost to construct or effectively prohibit construction of an ADU.  Any ADU must also meet the requirements of Government Code 65852.2 and 65852.22 (governing ADU). Many in opposition to AB 670 view it as unnecessary micromanagement of private planned residential communities that negatively impacts an association’s ability to regulate such daily burdens as parking, traffic, noise and other characteristics of overcrowded communities.  Nevertheless,...
Comprehensive Community Association Elections Reform Legislation Imposes Strict Standards for Elections and Board Qualifications

Comprehensive Community Association Elections Reform Legislation Imposes Strict Standards for Elections and Board Qualifications

Governor Newsom has signed into law perhaps the most sweeping legislation targeting a community association’s ability to self-govern.  Senate Bills 323 and 754 together present the greatest legislative change in association elections since the two-envelope secret written ballot procedures were first imposed upon community associations.  The changes that most impact community associations are as follows: Timing: The legislation amends Civil Code § 5100 (a) to require director elections be held at the end of each director’s expiring term and at least every four years. Vote by Acclamation: For large communities (of 6,000 or more separate interests) and where the number of nominees is equal to or less than the number of board seats to be filled, the legislation allows for an association to conduct a director election vote by acclamation. Mandated Candidate Qualifications: The legislation further amends Civil Code § § 5100 and 5105 (b) mandating that elections rules include the following specified candidate qualifications: 1) that the candidate be an association member; and, 2) that a corporate or trust property owner be represented by the appointment of a natural person. Limited Candidate Disqualification SB 323 adds Civil Code § Subsection 5105 (c) allowing an association, through election rules or bylaws only, to disqualify a candidate 1) with a prior criminal conviction that prevents the association from acquiring a fidelity bond or would result in the termination of the associations existing fidelity bond; 2) whose election would result in joint owners of a separate interest serving on the board at the same time; or, 3) who has been a member for less than one (1) year.   New Limitations...
California legislates Freedom of Religion on Community Association Doorways

California legislates Freedom of Religion on Community Association Doorways

Senate Bill 652 was signed into law by Governor Newsom protecting the rights of homeowners who wish to display religious symbols on the doorway of their homes. SB 652 adds to the Davis Stirling Common Interest Development Act Civil Code Section 4706 which provides that no governing document shall limit or prohibit the display of one or more religious items on the entry door or entry door frame of a member’s separate interest. Interestingly, this law follows the lead of several other states that over the years have protected the rights of Community Association residents to freedom of religious expression. For years, many communities have allowed residents to hang religious symbols such as holiday wreathes on front doors or lights around the doorway during the Christmas season. Controversy arose, however, when practicing Jews placed mezuzahs on their door frames or Hindus draped religious flags (“Jhgandis”) around their doorways. These common area expressions of religious beliefs were often seen in conflict with architectural rules prohibiting modification of exterior doors or the display of person items in common area. Ironically, the State and Federal Fair Employment and Housing Act (FEHA), which is modeled after the Federal Fair Housing Act (FHA), prohibits housing discrimination on the basis of race, color, national origin, religion, sex, familial status, and disability. This requires that no covenant, law, or rule discriminate against a resident on the basis of their religion. The Fair Housing Act has long required residential communities to make reasonable accommodations to their rules, policies, practices, or services when necessary to afford persons an equal opportunity to use and enjoyment of a dwelling. If a resident is...