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...
Senate Bill 563 Brings Sweeping Changes to The Open Meeting Act and How Community Association Boards and Their Managers Conduct Association Business

Senate Bill 563 Brings Sweeping Changes to The Open Meeting Act and How Community Association Boards and Their Managers Conduct Association Business

The Open Meeting Act (Civil Code Section 1363.05), first passed in 1995, has been amended and expanded several times over the years; however, the changes which took effect in January 2012 SB 563 are by far the most sweeping in their impact upon California common interest developments. Elimination of action without a meeting by unanimous written consent. The heart of SB 563 was its ban of board decisions by unanimous written consent. This method of decision-making was previously permitted by the Corporations Code but is now not permitted. Agenda notice of executive session meetings. Although the Act requires agendas and notice to be posted four days before an open board meeting, prior law was unclear about whether notice of an executive session meeting was required. CC 1363.05 mandates a minimum of two (2) days’ notice of an executive session board meeting. No board decisions by email, except in emergencies. The Open meeting Act prohibits boards from making decisions by e-mail, except in the case of an emergency. A decision may be made by e-mail if the board unanimously agrees to do so. The decision to meet by email may be made also by email and the e-mails must be made part of the minutes of that meeting. The definition of “emergency” is already contained in the Open Meeting Act: “…if there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action…” Telephonic board meeting participation. The Open Meeting Act now declares a telephone conference between a majority of the directors to be a “board meeting”. A director may participate by telephone, so long...
Bored with Board Meetings? Basic Tips To Reduce Meeting Length

Bored with Board Meetings? Basic Tips To Reduce Meeting Length

Are you one of those associations that have to corral your directors for board meetings? Have you ever been tempted to look up the language in your bylaws to see whether you can disqualify a director from serving because of excessive absences? Have you asked legal counsel if there are ways to prevent certain troublesome homeowners from attending and speaking during open forum? If you’re only looking at those individuals as the problem, maybe you’re not looking in all the right places. The best gift any association can give itself is a well-run meeting. Homeowners and directors often forget that the purpose of an association’s board meeting is to conduct business. By sticking to the basics, managers, homeowners, and directors can limit wasted time and enjoy a more effective and efficient meeting. Agendas Keep the agenda short and focused. Associations are required to post notice for a regular board meeting four (4) days in advance, and cannot act on any item unless it is on the agenda. Use that time to plan appropriately. If there are items that are going to require lengthy discussion and homeowner input, think about scheduling a separate meeting so that the Board can complete its regular business. A dedicated special meeting shows that the board values homeowner input, and will not try to rush through decisions. Consult your managers for the length of your agenda. Open Forum – Homeowner Contributions to Meetings Often the biggest downfall for directors, managers, and efficient meetings is handling homeowner participation. Knowing how and when to move things along is crucial, but it will only be successful if everyone...

Read My Lips – Raise My Assessments… and Spend Them Too!

How many politicians would get elected on a promise to raise taxes every year? Not many, because people want their government to do more for less. And yet that is exactly what we expect from our community leaders: To stand in front of their neighbors and regularly ask them to pay more to maintain their community.  Many owners, let alone directors, probably don’t realize that a director’s duty is to spend money, spend it wisely, and ask for more when necessary. It is no wonder that serving on a volunteer board is challenging and unpopular.   Fortunately, directors who face owners with this uncomfortable truth have legal support. California states that directors who represent their community owe a fiduciary duty to their fellow owners. That means directors must set aside personal interest, and ensure that the community needs are met before their own. Community needs refers both to the work required, as well as the money to pay for it. Most of the work requirements will be spelled out in the CC&Rs. But the community’s mandatory Reserve Study is also a good source of information about what the community should expect to be repairs, this year, in ten years, and in thirty years. Regardless of how individual directors feel about increasing costs, they cannot simply decide to ignore maintenance to benefit themselves. When work is required, directors must be ready to complete it and ensure that the community is ready to fund it.   There is also clear statutory language that directors rely on for authority to obtain the funds. Civil Code section 5600 states “the association shall levy regular and special assessments sufficient to perform its obligations under the...
One Man’s Trash is Another Man’s Treasure – Part Two of Four

One Man’s Trash is Another Man’s Treasure – Part Two of Four

This four-part series outlines an association’s legal obligations when dealing with unchaperoned personal property – which may include items that appear to be trash, but could be of value to someone. Associations must take care to identify the character of property left in common area due to potential liability if certain precautions are not taken. This series of articles is not intended as legal advice, but can serve as a general guide to dealing with unchaperoned personal property. As always, we suggest consulting with an attorney when handling legal matters. In Part One of the series, we discussed the importance of identifying the character of personal property and the general legal standards for doing so. In Part Two of the series, we will outline the process for handling property which has been identified as “abandoned” property. As a reminder, personal property may generally be deemed “abandoned” if it appears that it has been left behind on the premises after a resident (whether tenant or member) has terminated their residency and vacated the premises. The “Abandoned Property” Statutory Procedure: The Association cannot simply dispose of abandoned personal property. California Civil Code section 1986 states that the association may either keep the abandoned property onsite or move it to a storage facility until the required waiting period prior to disposal. The association will be deemed responsible for keeping the property reasonably safe until it has completed the prescribed statutory procedure. It is thus imperative that an association maintain its records of following the procedures mandated by the Civil Code to protect itself from claims of damage. California Civil Code section 1983...
One Man’s Trash is Another Man’s Treasure – Part Two of Four

One Man’s Trash Is Another Man’s Treasure – Part One of Four

Community Associations Must Exercise Caution When Removing Personal Property in Common Area Due to Potential Legal Exposure As children, most of us are taught to clean up after ourselves and to respect our living environments, as well as the living environments of others. Unfortunately, many people have forgotten – or sometimes disregard – those lessons.  Residents, tenants, and visitors sometimes leave trash, store belongings, and abandon bulky-items where it may be most convenient for them, including in community association common area. This occurs when a resident leaves items abandoned in storage units, garages, or patios and balconies. Sometimes it is obvious that the property has been abandoned, however, the situation can sometimes be less obvious. We have seen lawsuits where trespassers (with no known connection to the community) have deposited property in association common area and thereafter claimed that the association destroyed or damaged it because such property was not handled properly. Disposal of personal property from association common areas is not simply a matter of providing notice and then removing it. It can be fraught with risks and results in liability if certain precautions are not taken. Community associations must be aware that they may have statutory obligations relating to the disposal of personal property. It is the intent of this series to outline an association’s legal obligations when dealing with unsupervised personal  property in common area– which may include items that appear to be trash, but could be of value to someone. Determining the Character of the Property: Identifying It As Abandoned While the obligations of community associations are typically guided by an Association’s Governing Documents and...

Understanding the Manager’s Role vs. The Board’s Role – Communication is Everything

Experienced directors learn that delegation is essential to effective community management. No board, or individual director, can or should be juggling all of the tasks it takes to make a community function. Duties can be assigned to individual directors with relevant background. Boards may also want to create committees with groups of experienced owners and directors to tackle a problem. In most cases, boards should rely on their managers to tell them when delegation makes sense. Managers are there to use their experience to see a common problem and quickly propose a reasonable solution that might take a volunteer more time to analyze. By collaborating with association management, boards can not only improve results within the community, but also improve relationships with the owners. Spending less time on day to day management gives boards more time to focus on ways to serve their fellow owners. Once boards decide which tasks to assign to managers and which tasks to keep, they should prepare a summary or resolution of that authority for their records. However, keeping track of individual projects requires more than organization. It requires constant communication between everyone involved. Boards need to establish clear guidelines for action items so that everyone knows where to go for information on any specific issue. Authority to Act Legally all community decisions must be made by an association’s board of directors. Boards cannot step back and ask their managers to handle everything without any guidance. Boards can anticipate some of the more time intensive tasks, and work on finding a solution that lets them maintain control over the community without micro-managing routine decisions....
Simply the Best

Simply the Best

[As Published in the January-February 2019 issue of “Common Ground,” the magazine of CAI] A community association is no better than the board of directors who leads it. The board serves as the community’s voice and guide. If an association is to be excellent, willing volunteers must be developed. Truly exceptional volunteer governance is not a happy accident, and it often has little to do with a volunteer’s background, training, and experience. Instead, it is the result of hard work and the pursuit of proper values, foundational understandings, and perspectives. Have the right attitude Excellent board members understand that their position is one of service rather than control. They serve their neighbors; they don’t supervise them. A service-forward attitude results in a less defensive perspective in which new ideas and opinions are welcomed and not perceived as insults or threats. The best know that board service is not an accomplishment or distinction to be defended and preserved. A board member seeing his or her position as an achievement will be less likely to receive criticism and new ideas in a healthy manner, may be less willing to listen to the advice of others, will be threatened rather than encouraged by new ideas, and will be more deeply offended by criticism. Directors concerned about their status may be prone to focus too much on preserving their reputation rather than focusing on the association’s welfare. A director has got to know his or her limitations. The best accept that they do not know everything; they rely upon managers, consultants, and committees. Such directors handle board disagreements much better by accepting the...

Avoiding Election Missteps: 8 Tips for a Winning Outcome

If practice makes perfect, association elections should be a breeze. However, overlooking even the smallest parts of the election can cause chaos. California Civil Code Sections 5100-5145 dictate the election process: when to use secret ballots; how to conduct elections; how to select inspectors; how to campaign; and how to conduct the ballot counting and understanding why the Civil Code requires these for fair elections, may help avoid some of those election day challenges. #1: Have election rules in place FIRST All associations are required by Civil Code 5105 to adopt election rules. Without election rules, the owners, inspectors of election and board are all at-risk of mistakes that may result in costly legal challenges. Older CC&Rs and bylaws probably do not even require secret ballots, so it is important that the rules describe how elections are conducted. Election rules must comply with both Civil Code and your governing documents and should contain: Nomination procedures, Director qualifications, Method of selecting independent third parties as inspectors of election, Rules for access to association mediaduring campaigns, Rules for access to common area meeting spaceduring campaigns, Secret ballot instructions and procedures. Once you have the basics outlined above, make sure that the board and your owners are comfortable with how it is presented. Some associations will add additional details about candidate statements or “meet the candidate” events. Work with your owners so that the rules represent your community’s preferences regarding elections. #2 Identify candidate and director qualifications in the candidate nomination forms Directors must meet the qualifications both at the time of nomination and during service on the board. Provide a clear list of qualifications...
Megan’s Law Disclosure

Megan’s Law Disclosure

Access To Information About Registered Sex Offenders Many states have passed so called “Megan’s Laws” which provided limited public access to Registered Sex Offender information. California’s law, Penal Code 290 et seq., was passed in 1996. Under that statute, citizens could visit a law enforcement office and find out limited information about Registered Sex Offenders living in a certain area. Under PC 290.4, a person could call the Department of Justice and ask if a specific name was included in the list of Registered Sex Offenders. Expansion Of Megan’s Law  In 2005, California lawmakers passed an expansion of the law regarding sex offender disclosure. The law expanded the information available regarding the most serious sex offenders, and also requires that the information be available to the public on a web site established by the state Department of Justice. The web site is now operational, and that web address is www.meganslaw.ca.gov. New Disclosures For the most serious sex offenders, a substantial amount of information must be disclosed on this web site and therefore available to the general public: If a Registered Sex Offender’s offense was: Kidnapping, rape, aggravated sexual assault of a child, sodomy, child molestation by force or duress, oral copulation by force or upon a child, continuous child abuse, penetration by force or upon child, or if the offender has been determined a “Sexually Violent Predator”, then the state web site must reveal the following information about that person: “names and known aliases, photograph, physical description, including gender and race, date of birth, criminal history, the address at which the person resides, and any other information that the...