7512.  (a) One-third of the voting power, represented in person or

by proxy, shall constitute a quorum at a meeting of members, but,

subject to subdivisions (b) and (c), a bylaw may set a different

quorum. Any bylaw amendment to increase the quorum may be adopted

only by approval of the members (Section 5034). If a quorum is

present, the affirmative vote of the majority of the voting power

represented at the meeting, entitled to vote, and voting on any

matter shall be the act of the members unless the vote of a greater

number or voting by classes is required by this part or the articles

or bylaws.

The post Does the President of an HOA Vote? appeared first on California Condo & HOA Law.

“My management company said I have to be a board member to run for President is that true?”

The bylaws of the association are the governing document that usually specifies who can run for the board and who can be an officer and how officers are chosen. Sometimes pertinent provisions can be found in the Articles of Incorporation or Recorded Declaration (commonly known as CC&Rs) or other recorded regulatory document. I would say that in most associations whose documents I have seen, the officers to have to be board members, but I have seen some that allow the board to appoint officers that are non-board members. That usually relates to an executive secretary who is usually the manager.  Sometimes the board will appoint an adjunct treasurer such as a CPA to keep the books. I have only seen one set of documents in my career (over 20 years) that provided the owners the opportunity to vote for officers, although some boards seem to be under that impression without reviewing the bylaws.  Really, the answer to most questions about serving on the board or as an officer can be resolved by reading the Bylaws. Here are some other questions commonly asked which usually can be resolved by reading the documents:

Do I have to be an owner to run for the Board?

Do I have to live in the development to be on the Board?

My wife and I are the only ones in the association willing to serve on the board. Can we both serve?

I missed a couple of assessment payments but I am on a plan to catch up -can the Board kick me off of it?

My mother deeded me 1% of her interest in the property in the association. Does that make me an owner entitled to vote, come to meetings, or serve on the Board?

The documents are the first place I look when asked any of the above questions. Many of them relate to what the qualifications are to serve on the Board, which have to be identified in the association’s Election Rules. So start looking.  If there are no answers there, even I have to “punt”.

The post Questions About Serving in an HOA in California-Where Are the Answers? appeared first on California Condo & HOA Law.

The board sees them as a “disgruntled” owner and decides to try to ignore them, but they don’t go away.

It can be the worst thing a board does – to spend energy, time and money fighting with such an owner, refusing legitimate demands, ignoring communications. Of course ignoring the law is worse than ignoring an owner, even if it is someone you don’t like.

The best thing is to betake a pragmatic approach. Respond responsibly. Take a breath. Don’t jump because they say jump, but if they ask for records, be fair about the cost they are to be charged pursuant to Civil Code Section 1365.2 and give them the records that statute requires. If there are too many communications to deal with, gather them together for consideration at one time, a board meeting. Make sure there is some record of review and response, and get legal assistance if you need it. The longer you allow the problem to fester, the harder it is to resolve it.

And educate yourselves about dealing with difficult people. There is a Primer available on my website for just that purpose – only $25. www.californiacondoguru.com, in the webstore.

For every problem, there is a solution!

The post What’s the Worst Thing A Board Can Do When an Owner Questions What is Happening? appeared first on California Condo & HOA Law.

The Southcoast Group and Mike Gartzke (CPA in Goleta) are good to me. I like being there for them. For any persons present (or that had to miss it this year) that are waiting for some feedback on some things that came up, here it is! Namely on two issues -

Service of Process in Gated Communities AND

What To Do When Owners Violate the Minimum Rental Periods.

**

Dear Mike, Barbara and Entire Group:

I thought I might send a photocard with one of my images from the Santa Barbara to Solvang area  and then realized that it is easier to broadcast a message via email or even a blog these days. I have several things to be thankful for, and one is the ongoing invitation to come to Goleta each year.

The gift package you gave me made it home in one piece. I should’ve grabbed the chocolate out and looked before it became a condo blob in a box. Having started out in the shape of a condominium, it was really unique. After Sunday meetings with clients along the way home of 4 houss and 3 hours, the heat did it in. But it still tasted great!  Looking forward to crackers, cheese, olives and mustard from Goleta local makers, and wine from Rancho Sisquoc Winery with friends.  The chocolatewas a little messy so I saved it for myself.

Now, for business. I looked up the gate guard statute (we talked about licensed PIs being added to the list of process servers that can get entry in a gated community) and  it does have an exception for unmanned gates. In order to get access, a server would need to contact someone to get in and the law does not require the board or management to comply. But hey, if you can figure out a way to manage it, it can make life easier for a person, and lessen the chance you will have strangers who couldn’t drive in wandering around the complex.

Up here – in the Bay Area – (maybe you don’t have these problems) I have clients who get concerned about notices that are taped onto entry gates. They can be pretty tacky. So we have tossed around ideas for a posting board of some kind, or a permanent sign on the gate that gives management or the association contact information on it, so someone that requires access (hopefully) will call before walking around the gate and see if they can get let in for a short time.

The question arises as to whether the HOA has to promote the service of notices and liens. The answer is no. But if you take them off gates what does that mean – are you interfering with the requirement of the server to post notice in the accessible place.

Well hey, I didn’t say the answer would be short, or easy, but the gate access question is answered at least.

Also, since I had meetings in SB and also in SLO coming home, and more than one association is concerned about .the minimum rental violators, those who rent out their places short term, like for weekends, I had an epiphany. Maybe someone already thought of this but I haven’t seen it published. Association penalties that are imposed because of violations should have some reasonable basis – which will help if the association is challenged on it. Besides suspending rights to use of the facilities as noted at the meeting, why not consider adopting a fines policy (assuming your governing documents – bylaws or CC&Rs) support it, that allows the board to impose a fine for each night of short term rental based on the reasonable value attached to a vacation rental or hotel stay in the area. A fine of $250 to $400 or more per night might get the owner’s attention. If you are challenged or need to go to court, it’s worth a try to argue that ignoring the law should result in a penalty and the penalty needs to fit the crime.

Anyway, that’s my epiphany! Glad to share it.

Below is the gate guard access statute for your info. You can pull all California statutes by navigating to the California laws, 29 Codes, at www.ca.gov.

Thanks again for a great weekend to all who came to listen to me ramble on about California law and homeowner associations.

Fondly,

Beth Grimm

THE GATE GUARD STATUTE

415.21.  (a) Notwithstanding any other law, any person shall be

granted access to a gated community for a reasonable period of time

for the sole purpose of performing lawful service of process or

service of a subpoena, upon identifying to the guard the person or

persons to be served, and upon displaying a current driver’s license

or other identification, and one of the following:

(1) A badge or other confirmation that the individual is acting in

his or her capacity as a representative of a county sheriff or

marshal.

(2) Evidence of current registration as a process server pursuant

to Chapter 16 (commencing with Section 22350) of Division 8 of the

Business and Professions Code or of licensure as a private

investigator pursuant to Chapter 11.3 (commencing with Section 7512)

of Division 3 of the Business and Professions Code.

(b) This section shall only apply to a gated community that is

staffed at the time service of process is attempted by a guard or

other security personnel assigned to control access to the community.

,

The post OPEN LETTER TO SOUTHCOAST HOA RE ACCESS TO GATED COMMUNITIES appeared first on California Condo & HOA Law.

It’s okay to be mad about something. Life does not always go the way we want it to. Stuff happens that is out of our control and the way we deal with it is what determines whether we are happy or mad. Being mad does no good. Looking for solutions, seeking help, thinking things through, looking for a way to turn a distasteful situation around, those are reactions that do something good.

You might say who am I to talk. But here’s the short scoop. Like many, but I have faced challenges and hurdles in my life.  I have always been tall and big for my age, . In younger years that challenged my self confidence royally. I was a victim of considerable teasing.  I have in my life experienced the death of a grandchild (my very first, and after the high that comes with that gift) through a painful process of looking for a cure for hystiosytosis. I’ve lost numerous pets and friends, saw family members working through very tough situations, have a son that was in the military and a policeman, have been dealing with aged parents who are suffering (trying to keep on a good face),  could’ve died from a blood clot and pulmonary embolism a few years ago, had knee replacement surgery, several hospital stays in my life, suffered economic distress, had to recreate myself and my practice more than once to survive, and thrive, have made a few enemies without even trying.  There are people who are worse off than me, amd better off than me, and people whose attitudes I admire and try to emulate.

I choose to focus on the good, to turn situations around and to start getting up almost (working to this point) the moment I start to fall down. It’s a lot more productive. I can stop crying or griping and concentrate on something useful, like writing this blog.

I live in a townhouse right now, one I have owned for years. I tried to sell it for more than 11 years and had sales fall through because of some strange things, and some normal things. A realtor died in the middle of one transaction and the buyers backed out. The next buyers read the documents 4 days before closing backed out because the place was on leased ground from the city (although they had had the documents for weeks). A realtor put a bid in sight unseen because of the location on behalf of a client, promising she was familiar with all the floor plans, and aborting a weekend open house, and the Monday after the buyer backed out. And of course, there was then the 8+ year construction defect litigation, and the subsequent 1+ year reconstruction. I have seen lots of stress pass through my neighbors and the workers. Those people that remain vindictive, mad, frustrated and complain, complain, complain will probably always be complainers. Those that ask questions, look for the best outcome, accept some things including some responsibility for helping to find a solution are happier people. They may have days where they are stressed and frustrated (including me) and they may say things that are uncharacteristic, but they realize it and do something about it (like apologize).

These (the ones that are looking for solutions instead of muddling around in the distress) are the ones that are going to go on with life, find a better path, and hopefully be happy.

Don’t  you want to be one of those? Or one of the persons that just remains mad, day after day, mad at the world, mad at the developer, mad at the board, mad at homeowners, mad at co-workers, bosses, the weather, the sun, the rain, everything. It’s your health and your life -and it is your ability to choose.

(I’ll get off my soapbox now. I just think some people miss the trees because of the forest, or miss the forest for the trees, however you want to look at it.)

The post Do You Want To Be Happy? Or Just Stay Mad? appeared first on California Condo & HOA Law.

SB 391, DeSaulnier, strategically called the “California Homes and Jobs Act of 2013” appears on it face and by its title and description to protect affordable housing. The purpose is to replace funds lost when redevelopment and other programs were scrapped in California because of a lack of funds. It’s the place from where these funds are to be extracted that is a concern for homeowners in HOAs and the HOAs.

The bill says “Under existing law, there are programs providing assistance for, among other things, emergency housing, multifamily housing, farmworker housing, home ownership for very low and low-income households, and downpayment assistance for first-time homebuyers. Existing law also authorizes the issuance of bonds in specified amounts pursuant to the State General Obligation Bond Law. Existing law requires that proceeds from the sale of these bonds be used to finance various existing housing programs, capital outlay related to infill development, brownfield cleanup that promotes infill development, and housing-related parks. This bill would enact the California Homes and Jobs Act of 2013.”

Why do homeowners associations and homeowners who live in them need to be concerned with this bill?

The funding will come from extraordinary recording fees, at $75 a pop (per document). And due to the strength of the CA realtors’ lobby – and the” sales” job on the bill – recordation of sale-related documents will be exempt, but documents relating to collections will not. That sounds like it makes sense from the perspective that it is marketed as a bill protecting affordable housing. But, it punishes those who are in their homes and are already struggling, or who are trying to get out from under the debt by selling their homes in an HOA. And think about it – trying to short sell or do a transaction when there is accumulated assessment debt carries the cost of the recorded documents like the lien, notice of default, notice of sale, rescission of lien, etc. So the seller ultimately pays anyway in these situations – if they want to buy the properties. This debt has to be cleared before a loan will go through.

There is already a lot of public clamoring – legislators and others as well – about the costs that attach to a homeowners’ assessment debt collection process. These costs also have to be funded, and at the end of the food chain are the homeowners who are struggling to catch up. HOAs are not in a much better position. When they have to swallow these kinds of fees because of owner abandonment or bandruptcy, the other owners in the HOA end up covering the costs of collection.

When one examines the myriad of legal compliance requirements that attach to collecting delinquent assessments in a homeowners association, one can better understand the dilemma. The detailed, technical, legal process is far out of the reach of a board of volunteers – so the association needs professional help. The companies or individuals that perform these collections for homeowners associations have to cover their own costs of providing the many letters, notices, and procedures, and also the costs of title guarantees and preparation and recording of documents. In any delinquent assessment process that moves into foreclosure because of failure to pay the debt or get on a payment plan, there are several recordings that are involved so the added costs could be as much as $300.00, possibly more, piled on owners who are already struggling under the debt.

Piling this kind of additional debt on the careworn owners AND hard hit associations is not a very good solution to raising money for State programs.

And there are also the transactional recordings HOAs need to consider at times – such as notice of the contact information for the HOA (an optional filing  in Civil Code 1363.6) , notice that will require lenders and trustees to tell HOAs when they take deed to properties at their foreclosure sales (AB 2273 from the prior legislative section signed into law), maintenance and license agreements, amendments and rerecorded regulatory documents required by discrimination and other laws.

Remember that condos are considered one form of affordable housing in this State – but compliance and collection costs continue to soar, seemingly without legislative conscience.

If you are concerned about this, I urge you to visit www.caiclac.com and find out how you can help by participating in grass roots efforts as this and other bills that hurt homeowner associations and homeowners who live in them are making their way through the legislature in California.

The post Are You Watching the Bills in Sacramento This Year? You Should Be! appeared first on California Condo & HOA Law.

The question asked: “Is it ethical to write a letter to the owner landlord and ask them to evict this tenant?

Ethical?? I would say its absolutely necessary! If a board does not hold the owner accountable for the tenants’ actions then there is nothing the owner can do to protect themselves, or the association.

However, it is also important to document all complaints, to obtain police reports (which need to be retrieved by the person calling the police), and to be armed with a backup file. Owners often want to do one of two things:

(1) Deny that there is any problem (“Not my tenant – these are very nice people.”)  OR

(2) Push the responsibility for a problem tenant off on the association. (“You live there, why don’t you do something about it”.)

I do not generally recommend that boards get in between the landlord tenant relationship but that instead they keep the pressure on the owner to resolve the problem. Why?  Because of the board gets involved in trying to handle the tenant or evict, or choose tenants, then the association steps into the landlord’s shoes and the liability exposure increases exponentially.

There are several ways to put pressure on an owner whose tenant is a threat or disaster – and they are laid out in my NEIGHBOR TO NEIGHBOR enforcement Primer available in the webstore at www.californiacondoguru.com for $25.

Read up – the stakes could be very high for your association if you do not take the proper kind of actions in the situation where the tenant may be a menace or dangerous. Failure to address a hazard properly, even if its human, or maybe I should say especially if its human, has consequences.

The post Should We Ask the Owner to Evict a Tenant Who Has Caused A Lot of Problems? appeared first on California Condo & HOA Law.

Lender sale delays, often for many months and sometimes for years, have been a big problem for HOAs in California and continue to plague the industry.

But there is some relief! The only thing an HOA has to do is record a proper notice that will require a lender and/or its trustee to provide notice of the sale.

Anyone who has tried to track lenders’ sales knows that unless you go to the courthouse steps each time a sale is scheduled – or wherever the sales normally take place, there is no way to know if a sale goes through or is postponed. And the sales are commonly postponed, very often numerous times.  And determining  the cut off date for pursuing the owner for the portion of the debt that accrued up to the date of the sale and the lender who takes the property back at the sale for assessments that accrue from the sale date forward – becomes an exercise in frustration.

You can thank CAI-CLAC (Community Associations Institute California Legislative Action Committee)  for its tireless efforts to achieve passage of bills that brought the Notice option I speak of into California law. The law now requires lenders to record trustee sales within 30 days of the sale date and give notice to HOAs who have recorded Notices of the sale within 30 days after that.

Visit www.caiclac.com for more on this bill and review the October 16 blog with a link to a form of NOTICE that has been accepted by recorder’s offices. The latest tip that came direct from CLAC delegate Janet Quinn Dennis (of Pro Solutions in Pittsburg, California) who has experience helping associations record Notices, is to use the acronym “HOA” within theTitle on the Notice – AND WHY? Because while the first bill signed into law successfully provided for the notice option, recorders’ offices all over the state were summarily refusing to record blanket notices listing the APNs or legal descriptions of all of the properties in a development. Now the recordings are happening, thanks in large part to CLAC’s work with delegates AND recorders’ offices in their districts, and use of HOA in the title of the Notice alerts the county recorder’s offices that these notices are different than the common record notices, and are entitled to the blanket recordation on several properties, not just one.

To stay abreast of CLAC’s work on bills like this – visit www.caiclac.com.  By clicking into links on that site, you can find links to news on the hottest bills and keep up with the progress of the bill. You can also sign up for CLAC-TRAC to become part of the grass roots that makes a difference in Sacramento and California!

And, if you peruse my website at www.californiacondoguru.com, you will also find sample Notices in the AB 2273 subject blogs and E-Newsletters.

Get on board! Get your notice recorded now. The requirements for sending your HOA notices apply only to liens recorded AFTER you file the NOTICE!

The post AB 2273 – CALIFORNIA HOAs – Stop Crying! Get Your Notice Recorded Now! appeared first on California Condo & HOA Law.

“In our HOA a new neighbor has moved in who smokes cigars outside on his deck, all day long. The neighbor on one side and myself are inundated with the nasty smell and cannot open our patio doors because it wafts in and we smoke the nasty thing with him. Therefore, we are held captive in our homes while he sits outside smoking and enjoying the beautiful day.

I know there is a bill in the assembly regarding multi-family housing areas and banning smoking all together. I hope it passes.

But, for the present, is there anything we can do now? I’ve told him that I am allergic to cigar smoke, but he doesn’t care.”

SECOND ISSUE:

We have a property management company that, through the non-direction of our Board, does not enforce ANY of our written rules and regulations or CCRs … they don’t want to be bothered… . Is there anything the owners can do to make this Board and management company follow and enforce our CC&Rs?  IS IT TIME FOR ME TO SELL AND MOVE OR IS THERE ANY ALTERNATIVE?”

My response:

First of all, smoking is personal and a person who smokes need not be subject to any punishment for hurting themselves, but second hand smoke is offensive and harmful to the health of others. Therefore, it is a nuisance.  Every set of CC&Rs I have seen has a prohibition on nuisances, and also has some remedies for violations.

Personally, I had this problem at a vacation home one time. My family and I could not use the balcony without smelling the neighbors’ cigarette smoke, and they were outside on their neighboring deck all the time. We couldn’t sit outside, cook outside, or even leave the sliding glass door open. So we asked management at the registration office for a big fan, brought it to the unit with an extension cord, put it outside, and turned it on toward the smoker’s deck. They got a taste of their own medicine and we got fresher air.

I know that may not work as a permanent solution. A board can address the nuisance if it is willing – and I think it should at the least look at possible disciplinary action if a person cannot use their deck. Does it have to sue? No. An owner can also enforce the CC&Rs and small claims court is a reasonable venue for that. It takes a village, people, to attack a nuisance, unless the problem person understands what decency is.

As for moving, if it is an option, consider it. If you don’t like the board or its approach, and don’t like the neighbors’ activities, maybe you would enjoy life more somewhere else. However, of course, if the smoking continues unabated, selling or renting might trigger a disclosure issue, unless the buyer is a smoker also.

AB 746 is a bill that has been introduced in California this year. It would ban smoking in multifamily units with one or more shared walls, floors, ceilings, or ventilation systems. It would provide that any person who violates it’s provisions would be guilty of an infraction; it creates a new crime.

If the law proposed in California passes, boards and owners will have more “teeth” in their fight against smoking nuisances. In fact, municipalities all over the state are getting on board and instigating more protections from second hand smoke. Years and years ago it became almost impossible to smoke in any office building in California, then restaurants and businesses, then bars, and now in many outdoor areas. It’s coming, protection for using your home without having to put up with the smell of smoke. But one does not have to wait for the new law. An owner in a CID can take action and attempt to address the nuisance aspect now. As for my thoughts: I do not believe boards should pass the buck off to the bothered owner, or the bothered owner should pass the buck to the board. I think both should pursue all avenues of relief. I was a smoker years ago when the instituted the protections in offices and I had to go outside to smoke. What made me quit was that it became harder to smoke than to not smoke. Maybe the pressure of neighbors complaining will have some positive effect.

Both can file small claims actions. You can ask the court to hear the matters at the same time. The board could file too. Owners can sue for up to $10,000 in damages. The Association can seek up to $5000. I am not suggesting one can expect a huge windfall, but calling someone into court with that kind of outstanding risk would seem to get their attention.  Don’t sue in small claims court asking the judge to order the neighbor to stop smoking. See damages for nuisance and specify a reasonable amount. Tell the judge it would be hard to rent or sell without disclosures and the disclosure could deter buyers or renters. Unless the hearing officer is a smoker (or even if they are), they might help get some kind of message across that it’s not okay to let the smoke waft to the neighbors’ private spaces.

The post Smoking Pipes and Cigarettes – What Can You Do About the Nuisance? appeared first on California Condo & HOA Law.

But the real test comes when a board member says, “Oh, by the way, we have already put together a draft of documents and we really just want you to review them and make suggestions. We are trying to save money so can you take that into consideration?”

Of course boards want to save money, but this is not the way to do it!  I can say with conviction that in every association I have ever worked with where a board, committee, or non-HOA knowledgeable attorney drafted a set of documents, it has cost more in terms of time, energy, and money to get back to a good set of draft docs. And toes get stepped on, even when trying to avoid that carefully, because people work hard and assume pride of ownership, without any comprehension of what works and what doesn’t, what’s important and what’s not, and where legal-ease is important and where it’s not.

“But,” some boards say, “we were told by our manager that amending and updating of our governing documents can be done by the Board and does NOT EVEN require Members’ approval. “

Another mistake waiting to happen! The drafters of the reorganized Davis Stirling Act (CLRC) that is moving to new code sections January 1, 2014, specifically to assure there would be a means of carrying forward law regulating all existing governing documents, does allow board members to change the statute numbers to coincide with the same subject matter from the 2013 references to the 2014 references without membership approval, and re-record existing CC&Rs. But I have yet to hear any attorney with HOA experience in creating good HOA documents recommend that boards go to town on this without some good legal advice on the best course of action given the documents that exist when the year turns over.

The post MYTHS AND MISUNDERSTANDINGS ABOUT BOARD DRAFTING OF HOA DOCUMENTS appeared first on California Condo & HOA Law.