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Repeated Failures to Pass CC&Rs

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  California’s Leader in Community Association Law September 29, 2019
REPEATED FAILURES TO PASS
AMENDED CC&Rs 
 

QUESTION: There are several CC&R changes our board has wanted to make for years. However, each time they’re put to a vote, they fail. I believe the reason they fail is that they haven’t been adequately explained to the members. The proposed amendments are simply listed in the vaguest possible terms, such as,”Article IV, Section 24 (g) and (h) regarding maintenance responsibility (drainage and seal and re-stripe).” Is there a way our board can inform members of the rationale of these amendments?

ANSWERMembers should know what they are voting for (or against). That means boards should fully explain amendments with detailed explanations or meaningful summaries. Doing so is not advocacy. In addition, town hall meetings can be held to answer questions. It is common to have the association’s attorney attend meetings to explain the amendments. 

Advocacy. If they do so at their own expense, board members can also engage in advocacy, i.e., urging members to vote FOR the amendments. They can distribute flyers, go door to door, send emails, and mail letters, if done at their own expense. Moreover, board members can use the association’s media (newsletter, website, etc.) to urge members for to vote for CC&R amendments provided they give equal access to any member advocating a differing point of view. (Civ. Code §510.) 

Voter Guides. Boards can also create voter guides modeled on the ones the state uses for ballot measures. A mailing can go to the membership with an explanation of the amendment plus arguments for and against written by advocates for each side. If you hold town hall meetings, you should easily find someone opposed to your amendments. Ask the person to draft something for the voter guide. If there are several opponents, ask them to work together to draft their arguments. Make sure you establish reasonable guidelines for such as number of words, no foul language, no personal attacks, etc. Don’t forget to create incentives to vote

FINES WITHOUT
HEARINGS?


QUESTION: We have a tenant who urinates in the garage near the trash cans. This is unhealthy and disgusting as well as presents a health problem. Our management company says we have to call the tenant to a hearing before we can fine him, and then the same thing EVERY time this tenant does it. I think that since it’s a Health Code violation we can fine him every time he does it without additional hearings. Who’s right?


ANSWER: Your manager is right. Anyone accused of violating your rules must be given written notice of each violation and an opportunity to appear at a hearing to defend himself from the charge. Penalties cannot be imposed without a hearing. (Civ. Code §5855.) If there are five violations over the course of two weeks, you don’t need five hearings. You can have one hearing for the five violations.

RECOMMENDATION: It sounds like the person has mental issues. If so, fines may not deter him. A letter from association’s attorney threatening to sue him might curb his unhealthy activities. If there is a landlord involved, a lawyer letter to him/her is warranted.

ADAMS|STIRLING
SACRAMENTO OFFICE OPENS


am pleased to announce that partner Jasmine Hale relocated to Sacramento and is opening our Sacramento office.

Jasmine’s instrumental role in the growth of our firm in the Los Angeles region makes her the ideal person to step into this leadership position. Jasmine will assist partner Nathan McGuire, managing partner of Northern California, as we expand into the Sacramento-Lake Tahoe regions.

Jasmine is a fellow of the College of Community Association Lawyers (CCAL) and brings to Sacramento over a decade of expertise in CID law practice. Jasmine speaks and teaches widely on industry standards of care for boards of directors and managers through the Community Associations Institute (CAI) and the California Association of Community Managers (CACM). In addition, Jasmine is a liaison to the California Legislative Action Committee.

Jasmine graduated from Baylor University in Texas with a double major in Political Science and Communications and went on to earn her Juris Doctor from the Pepperdine School of Law in Malibu, California.

We are delighted to expand into the Sacramento-Tahoe regions. If your association needs legal services, contact us for a proposal.

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MOVES TO THE CLOUD

To keep pace with cutting edge technology, last month we migrated our Firm’s computer network to a “Cloud Desktop” environment. Instead of operating from a local server in our corporate office, we placed our document management system, accounting programs, office productivity suite, time tracking software, internal communications (and everything else) into the cloud.

Security Enhancements. The move offers significant security enhancements for our clients and the Firm. We are using the secure and ultra-stable Citrix platform, which means there is virtually no chance of viruses or malware compromising client data by hackers. Moreover, software security patches are always current and we receive year-round, 24/7 monitoring and support.

Disaster Recovery. Because our servers are housed in hardened Department of Defense-compliant facilities with multiple redundancies for power, cooling, and server hardware in areas of the U.S. with little or no vulnerability to natural disasters, our Firm’s network is never down. It allows us to serve our clients regardless of natural disasters that might affect our state, such as fires, floods and earthquakes.

Serving Client Needs
. Our investment in our Firm’s infrastructure allows our attorneys to operate in a safe, full office environment anywhere in the world. It means we can meet client needs from any device, from any location, day or night. When your association needs assistance, contact us.

Security Camera. I received your latest newsletter–great information on a common sense approach for board members and owners to read about. I have a concern about your article that a director was removed from the security committee by the president. Does the president have the authority to remove or install a committee chair without a vote of the other directors? -Jim W.

RESPONSE: The person who sent in the question did not state he was a director. I got the impression he may have been a homeowner who chaired the committee. Either way, you are correct. If the board put the person on the security committee and made him chair, the president would not have the authority to remove him from the committee unless fellow directors consented to the action.

Paid Director. In regards to “paid directors” in the September newsletter, I don’t think most HOAs could afford enough pay to get anyone on the board unless they volunteered. -Bryn S.

RESPONSE: Very true.

What’s Our Name? We are an eight-unit condo association which was built in 1971. The name of our HOA is not listed in the CC&Rs. Is there a law that says we have to update our CC&Rs? Most of our members cannot interpret what’s in the CC&Rs. -Yvonne A.

RESPONSE: If you don’t have a name, you can adopt any name your members agree to. If you wish to incorporate, check with the Secretary of State for a name not already in use. There is no law requiring you to update your CC&Rs. Common sense dictates you update your governing documents if you can’t understand them. We update hundreds each year throughout the state making them current with new laws and easy to understand. Where appropriate, we combine associations into a single entity or convert non-CIDS into common interest developments.

Guest Parking. Is visitor parking covered anywhere in the Davis-Stirling Act? I cannot find anything that the HOA has to provide visitor parking. -Windson W.

RESPONSE: Parking requirements are not found in the Davis-Stirling Act. Such requirements are controlled by local building/planning departments and municipal codes based on density and type of use. Developers sometimes cut corners when it comes to parking and can be held accountable if your association is within applicable statutes of limitations.

Resigning as Treasurer. I am the treasurer of our association. The rest of the board does not t seem to understand there is an urgency that dues be increased and a special assessment levied to keep up with our bills. I want to resign as treasurer but was told by the president, that if I resign from this position, I would need to resign from the board, as no one on the board will take this position. Are there any rules that state you have to resign from the board if you step down from the treasurer position? -Anonymous

RESPONSE: No, there is no such requirement. Any officer can resign at any time upon written notice to the board. (Corp. Code §7213(b).) The resigning officer continues to be a director on the board unless he/she also resigns from the board. However, someone will need to step up and become treasurer, it’s one of the offices required by Corporations Code §7213(a).

Renewing Contracts. Are there any statutory requirements that contracts be reviewed or put out to bid every x-number of years? Specially, the management contract for the HOA? -Richard M.

RESPONSE: No, there is no statutory requirement. Some associations solicit proposals from other vendors every few years to make sure their current vendors are at proper market rates.

Email to the Board. If a board has an email address where members can send general suggestions, comments, etc., does this arrangement violate any provision of the Davis-Stirling Act? Would it be considered unethical in any way? -K.B.

RESPONSE: No, the arrangement does not violate the Davis-Stirling Act nor is it unethical. I suspect the practice is limited to smaller associations. It would overwhelm the boards of large associations.
Adrian J. Adams, Esq.

 

Boards can contact us for friendly, professional advice.

Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC


I join Adrian Adams in inviting you to 
contact us for your association’s legal needs.


Hon. Lawrence W. Stirling, Senior Partner ADAMS|STIRLING
Author of the Davis-Stirling Act



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HARASSMENT


To comply with federal regulations and reduce legal exposure, boards should adopt anti-harassment, neighbor dispute policies.

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Reprinted from
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About 

With an extensive background in the community association industry, Adrian Adams is one of the leading attorneys in California specializing in common interest developments. Adrian founded “Adams Stirling PLC” and quickly grew his firm into a preeminent boutique firm specializing in highrise condominiums, stock cooperatives, business parks, lake associations, golfing communities, equestrian associations, and ocean-front communities.

 

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