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...
All About LA’s EBEWE Ordinance

All About LA’s EBEWE Ordinance

Recently I received a telephone call from a worried client who was contacted by an unscrupulous vendor who insisted that the association will be heavily penalized in the event it does not comply with Existing Building Energy and Water Efficiency (“EBEWE”) Ordinance requirements set forth by Los Angeles Department of Building Safety (“LADBS”). The compliance deadline was only two days away, and the vendor offered to rescue our client by offering to file an extension on its behalf, but only under the condition that the association hire the vendor to conduct the compliance work. The vendor emphasized that for the “right price,” he will lead the association to light (an energy-efficient light that is) by reciting an overwhelming slew of requirements that the Association would need to comply with by the fast approaching deadline. Thankfully, the client contacted our office in time for me to do some research and prevent the client from paying an inordinate amount of money for compliance work that was not yet required. Energy and Benchmarking Disclosure laws are popping up across the nation. In California similar laws have been adopted in the cities of San Francisco, Berkeley and San Diego. Now certain buildings in Los Angeles must undergo energy and water efficiency audits. L.A.’s new law, the Existing Buildings Energy and Water Efficiency Ordinance (EBEWE) was unanimously adopted by the LA City Council as part of Mayor Eric Garcetti’s Sustainable City plan and is geared toward reducing energy and water consumption in existing buildings in the City. The ordinance requires existing commercial and multi-family buildings to be “benchmarked”. Benchmarking in this context is the...

Court of Appeal Upholds Association’s Prevailing Party Status

R|O attorney Jonathan R. Davis successfully defended a matter in the Court of Appeal against a homeowners association. After a neighbor filed a lawsuit attempting to force the Association to sign a dubious easement contract, the Association recorded its own maintenance document and successfully moved to dismiss the lawsuit. The trial court deemed the Association the prevailing party and awarded it attorneys’ fees. The neighbor appealed, arguing under the “catalyst theory” that it was the prevailing party because the suit caused the Association to record a maintenance document – despite the fact that the recorded document contained different terms than the contract at issue in the lawsuit. The Court of Appeal sided with the Association, reaffirming the general rule that a defendant in whose favor a dismissal is entered is the prevailing party. Written by Jonathan R. Davis Jonathan R. Davis, Esq. is a Senior Associate Attorney at Richardson|Ober|DeNichilo. Follow ← Older Entries Next Entries...
Upcoming Webinar – The Unpleasant Business of Member Discipline: A Primer

Upcoming Webinar – The Unpleasant Business of Member Discipline: A Primer

Thursday, August 22nd at 1 PM Associations have governing documents, and enforcing those documents is one of the unpleasant realities of community association governance and management. Can managers and boards unintentionally make the process harder, more stressful and hostile? Attend R|O’s next webinar by Kelly G. Richardson, as the following topics will be explored: Are you enforcing the unenforceable? How can planning help both board and homeowners? Must every violation be enforced? What myths are there regarding the hearing? What is the interaction of Fair Housing and the enforcement issue? What are some enforcement strategies? What CAN’T you do? How do you deal with tenant problems? When must the HOA be involved in neighbor-to-neighbor disputes? **This course is approved by the Community Association Managers International Certification Board (CAMICB) to fulfill continuing education requirements for the CMCA® certification. www.camicb.org. Register This webinar will be available as an on demand course roughly one week after the webinar is hosted live. To see what other courses Richardson|Ober has available visit...

100-Count Lawsuit Dismissed [R|O Court Victory]

R|O attorneys Kelly G. Richardson and Jonathan R. Davis obtained the dismissal of a frivolous, 100-count lawsuit filed by a vexatious litigant and a coconspirator against an Association and its Board. The vexatious litigant, who had been barred from filing lawsuits without first obtaining a court order due to his history of filing multiple harassing lawsuits against several organizations, utilized a coconspirator to file claims against R|O’s client on his behalf. The vexatious litigant attempted to obscure the fraudulent claims by incorporating them in a lawsuit involving claims that, at first glance, appeared to belong solely to the coconspirator. All claims were brought in the name of the coconspirator despite the fact that many claims were really being brought by the vexatious litigant. The lawsuit alleged violations of Governing Documents and the Davis Stirling-Act, infringement of constitutional rights, as well as a multitude of claims for slander and emotional distress. R|O obtained a court order deeming the coconspirator vexations, meaning that the coconspirator was also barred from filing new lawsuits without first obtaining permission from the court. Moreover, R|O fought each of the 100+ claims by the vexatious litigants on their merits, and obtained the dismissal for its clients. Written by Jonathan R. Davis Jonathan R. Davis, Esq. is a Senior Associate Attorney at Richardson|Ober|DeNichilo. Follow ← Older Entries Next Entries...