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Articles Posted in HOA Governance

what-to-expect-when-youre-expecting-backyard-chickens-featureIt is becoming increasingly popular to raise chickens in suburban and even in urban areas. Chickens offer a continuous source of fresh eggs and arguably help with pest control. Conversely, chickens can be loud, messy, attract coyotes, and arguably are best suited for rural, country life. Because many municipalities have legalized raising chickens in residential zones, HOAs are more frequently encountering owners maintaining chickens in their communities, some even allowing their chickens to roam the common area alongside the family dog.

If the HOA’s governing documents prohibit chickens (also referred to as poultry or livestock), the HOA may require residents to remove their feathered friends from the community. It is important to note that while municipalities may allow a limited number of domesticated chickens in residential zones, it is well-established that an HOA’s governing documents may be more restrictive than local ordinances. So, if the county or city allows chickens, but the more restrictive governing documents do not, the governing documents control.

Chickens may also be prohibited by nuisance restrictions contained in the governing documents. The aforementioned noise produced by roosters along with frequent, malodorous, and non-solid waste arguably constitute an ongoing violation of nuisance restrictions sufficient to require the chickens’ removal.

Oftentimes, when an HOA requires the removal of a prohibited animal, requests to allow the animal to remain on the premises as an emotional support animal (“ESA”) arise. Under the federal Fair Housing Act, which applies to homeowners associations, a housing provider is required to make reasonable accommodations for assistance animals including ESA’s even though they are not trained to do work or perform tasks.  Allowing an emotional support animal which would otherwise be prohibited under the Association’s governing documents is a recognized type of reasonable accommodation for a disability under California’s Fair Employment and Housing Act. (Auburn Woods HOA v. FEH Commission (2004) 121 Cal App. 4th 1578).

California HOA lawyers Chickens are not typical ESA’s like dogs or cats, but the creativity of Americans is without bounds as evidenced by the wide variety of alleged ESA’s seen on commercial flights including peacocks, turkeys, pigs, monkeys, and hamsters. Due to the complex legal issues and potential exposure to liability associated with reasonable accommodation requests, it is recommended to contact legal counsel immediately if a resident requests to keep a chicken or any other otherwise-prohibited animal due to a disability or medical condition.

-Blog post authored by TLG Attorney, Carrie N. Heieck, Esq.

downloadConflicts of interest present possible liabilities that homeowners associations (“HOAs”) should do their utmost to avoid.  There are issues that need to be deliberated and decided upon by the Board of Directors; however, in some situations, not all Directors should take part in the decision-making.  A common scenario includes a situation where the Director might have a material financial interest in the outcome; or, the Director is violating the governing documents and should not decide on their own disciplinary consequences.  Therefore, to keep all lines of communication and responsibilities clear, the Board should watch out for potential conflicts of interest and take the necessary steps to insulate the HOA and the Director from actual conflicts of interest.  Some further examples of both potential and actual conflicts of interest could include:

  • Property damage to common areas abutting a Director’s property.
  • HOA litigation matters that could directly implicate a Director.
  • Capital improvements to common areas that would be advantageous to Directors.
  • The HOA contracting with vendors who have prior relationships with Directors without properly being vetted by neutral parties and/or management.
  • Using HOA funds to involve legal counsel to aid in a personal vendetta between a Director and HOA member.

What Should the Board Do If There Is A Potential Or Actual Conflict Of Interest?

Pursuant to Corporations Code section 7212, the Board may, by resolution adopted by a majority of the number of Directors then in office, provided that a quorum is present, create an executive committee consisting of two or more Directors, to serve at the pleasure of the Board.  The Board has complete control over all committees.  This means that the Board will decide who may serve in the committees and what authority they will have, subject only to the restrictions in the governing documents.

Accordingly, if there were any potential or actual conflicts as mentioned above, legal counsel for the association should broach the idea of the Board creating an executive committee around the conflicted Director.  While Directors are well-meaning, if their financial interests, property, or personal self are implicated in any way, it would be difficult for the respective Directors to act as a Director (i.e., in good faith and in the best interest of the HOA) and not as a homeowner.  This could be quite detrimental for the HOA and possibly even for the Director themselves because if there is an actual conflict of interest, that Director would be exposing themselves to personal liability; and the HOA’s Directors and Officers insurance might not be applicable if the Director acted outside the scope of their duties and decided on matters in such a way that would not benefit the HOA.

Therefore, it would be prudent to resolve any potential conflicts of interest by removing the Director from any decision they might be personally involved in and forming an executive committee around that respective Director.  Should the Board have difficulty with this task, it might be best to enlist legal counsel’s help in explaining liabilities and conflicts of interest to all parties involved.

California HOA lawyers Note that if an executive committee is comprised of enough Directors so as to establish a quorum of the Board, any meeting of that committee could constitute a Board meeting that is subject to the Open Meeting Act’s requirements.  Additionally, executive committees must maintain minutes pursuant to Civil Code section 5210 and make them available for inspection by the members within fifteen (15) days following approval.

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

hoa-masks-covid-300x200

California has lifted its indoor mask mandate for vaccinated individuals. While most HOA industry professionals took the position that the mask mandate did not apply to common interest developments and the HOAs that govern them because such facilities are not “places of public accommodation” (see Carolyn v. Orange Park Community Ass’n (2009) 177 Cal.App.4th 1090), for those imposing such a requirement, starting February 16th, they no longer need to require the use of masks for vaccinated individuals while inside common area facilities (e.g., HOA clubhouses, gyms, etc.).

This does not mean that HOAs are necessarily required to obtain proof of vaccination; rather, HOAs can simply post signage requiring residents to wear mask if unvaccinated. Moreover, some local mask mandates remain in place despite the State easing their restrictions. It is therefore important for each association to check with local authorities to determine what restrictions remain in place.

California HOA lawyers HOA Boards of Directors and management professionals that have questions regarding what common area facility policies must be in place to satisfy State and local requirements with respect to COVID-related issues should contact their HOA lawyer for guidance. 

-Blog post authored by TLG Partner, Matt Plaxton, Esq.

Businesspeopleraisingtheirhands*Asked and Answered

Asked We recently concluded our Annual Meeting of the Membership. As always, we failed to achieve quorum. Rather than successively adjourn and reconvene the meeting, the Board concluded the meeting. Now we have several owners complaining, saying that the proper procedure was not followed when the Board concluded the meeting. What is the proper procedure?

Answered – It is not uncommon for an association to suffer from “member apathy.” Such apathy is most commonly apparent when it comes time to hold the association’s annual membership meeting (“Annual Meeting”). In order to hold an Annual Meeting (or a special meeting of the members (“Special Meeting”)), a quorum of the membership must be present in person, by written ballot, or, if allowed by the association’s Bylaws, by proxy. Quorum requirements vary.

If a quorum is present, the members may convene the Annual or Special Meeting and conduct the business at hand. If a quorum is not present, the members present at the Annual or Special Meeting have two options: (1) adjourn the meeting, or (2) adjourn the meeting to a later date. The word “members” is emphasized in the preceding sentence to highlight the fact that an Annual or Special Meeting is a meeting of the members. Thus, while the Board president may preside over the meeting, and other Board members may be present, the decisions made thereat are made by the members, not the Board.

The appropriate procedure for adjourning an Annual or Special Meeting is usually set forth in the association’s Bylaws. Nevertheless, California Corporations Code section 7512(d) states that, “[i]n the absence of a quorum, any meeting of members may be adjourned…by the vote of a majority of the votes represented either in person or by proxy….” (Emphasis added.) Thus, the following procedure should be employed:

  1. The “chair” of the Annual or Special Meeting (again, typically the Board president) calls the meeting to order.
  2. An announcement is made that quorum was not reached and therefore the association is unable to hold the meeting.
  3. The chair of the Annual or Special Meeting then entertains motions made by members present at the meeting.

If no motion is made and everyone simply leaves, the matter is concluded; no further action may be taken on the item or items of business for which the meeting was called (unless a Special Meeting is called for that purpose). If a member makes a motion to adjourn, and the motion carries (i.e., a majority of the members present approve the motion), the matter is concluded. The meeting will not be adjourned to a later date. This is because the motion did not specially call for the meeting to be reconvened at a later date. Thus, in order to reconvene the meeting at a later date, a majority of the members present must move to adjourn the meeting to a later date.

It is important to point out that neither the Board nor the managing agent has the authority to unilaterally adjourn the meeting to a later date. For example, when quorum is not achieved, the Board cannot simply establish a date for a reconvened meeting; the decision must be made by the members through a proper motion. Moreover, it is not uncommon for the association’s managing agent and Inspector of Election to be the only persons present at the meeting. Again, neither the managing agent nor the Inspector of Election has the authority to adjourn the meeting to a later date (that is unless the managing agent or Inspector of Election is also a member of the association). It is for this reason that we always recommend that at least one Board member be present at the meeting so that the proper motion can be made. Reconvening the meeting without a proper motion will make any decisions made at said meeting subject to legal challenge.

It is also important to point out that the association cannot correct this deficiency by distributing notice to the membership of the new meeting date. That is because the motion to adjourn to a later date is a procedural prerequisite; meaning, the motion must occur in order to the hold the meeting in the future. Thus, if the association desires to move forward with the Annual or Special Meeting, and the motion was not properly made (or made at all) it will need to restart the process.

California HOA lawyers Conducting Annual and Special Meetings is important to the effective operation of the association. However, it is equally important that the proper procedure is followed, especially when adjourning meetings. Failure to do so increases the potential for costly disputes.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

BoardMeetings_Blog-2-1-1*Asked and Answered

Asked Can the Board reconsider a motion that was previously passed by a majority vote? One of the directors that voted in opposition to the motion would like the Board to reconsider.

Answered – One of the Board’s primary responsibilities is to make decisions on behalf of the association. Because the Board is comprised of volunteers with different backgrounds and varying expectations, it is common for Board members to disagree from time-to-time. The directors on the “losing side” of a motion may have concerns over the decision made, feeling that the decision was rushed and made without proper inquiry or consideration of all relevant facts. Those who are on the “winning side” of a motion may learn additional facts which calls into question the decision made. Either way, the question then becomes whether the Board is “stuck” with the decision made.

Although an association is not required to adopt and employ parliamentary procedures to govern Board meetings (unless otherwise required by the association’s governing documents), the Robert’s Rules of Order provides a procedure the association can adopt and use in addressing situations where a Board member requests reconsideration of a previously decided matter. Because it is considered an “unusual” motion, and to prevent abuse from the “losing side,” the motion should be limited to those directors that voted on the prevailing side. So, in the question posed, the director voting in opposition to the motion is unable to make a motion to reconsider. The director must then convince one or more of the directors on the prevailing side to bring the motion. The motion must be made at the Board meeting following the meeting in which the decision was made.

Once the motion is made by a Board member on the prevailing side (the moving party should be required to indicate that they voted on the prevailing side), it must be seconded. However, the second can be made by any Board member, regardless of how they voted on the matter to be reconsidered. Once a motion is made and seconded, the matter is “up for debate.” In order for the motion to carry, a majority of the Board must vote in favor of the motion to reconsider. Note, this motion does not overturn the previous decision. Rather, it simply allows for the previous decision to be reconsidered by the Board (i.e., a new vote to be made on the previous decision). Thus, if the motion passes, the original motion is placed before the Board as if it never happened.

The following is a sample script on the motion to reconsider:

Prevailing Vote Board Member: I move to reconsider the vote on the motion to grant Owner’s reimbursement request. I voted on the prevailing side.

Board Member: I second that motion.

Board President: It is moved and seconded to reconsider the vote on the motion to grant Owner’s reimbursement request. Is there any discussion on reconsidering the vote?

After discussion has occurred the Board President calls for a vote. If, as noted above, the motion passes, the original motion is placed before the Board for discussion and a vote. If the motion fails, the decision made on the original motion stands.

California HOA lawyers Parliamentary procedure is complex and often confusing. Such rules seem archaic and draconian. Nevertheless, it is important for the Board to adopt and adhere to such procedures to avoid wasting time discussing matters that have already been decided.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

view*Asked & Answered

Asked – Our HOA has been receiving architectural applications from Owners who are requesting to install tall trees or increase the height of their property walls for additional privacy. However, several neighbors have expressed their stark opposition to any modifications that would impact the views from their property. Is our Architectural Committee obligated to approve the applications provided it complies with all other requirements, or should the application be denied to preserve the neighbor’s views?

Answered – It depends on the language contained within the HOA’s governing documents.

At the outset, it is important to recognize that all owners of real property located within the Association’s community are subject to the duties, obligations, and restrictions set forth in California Civil Code sections 4000-4765, the Declaration, and the Association’s other “Governing Documents” as defined in Civil Code section 4150.

Included in most Governing Documents is the requirement that any Owners that wish to modify the exterior of their property must first submit an architectural application (“Application”) to the HOA’s Architectural Committee (“Committee”) for approval. Furthermore, most HOAs adopt some type of Architectural Standards that clearly define the aesthetic requirements that must be met to obtain approval from the Committee.

Architectural Standards set forth an association’s policies and procedures regulating a homeowner’s ability to make architectural improvements and modifications to the homeowner’s separate interest, as well as to common area and exclusive use common area.

However, while almost all HOAs establish some type of Committee, Architectural Standards, and Application review process, not all HOAs have provisions regarding the preservation of views or clearly define what constitutes a “view”.

To provide guidance in view dispute scenarios, in Posey v. Leavitt, the California Court of Appeals for the Fourth Appellate District held that absent CC&R provisions, members have no right to air, light, or an unobstructed view. (Posey v. Leavitt, (1991) 229 Cal.App.3d 1236.) As a result, without an expressed provision protecting a homeowner’s right to a view, the Association is under no obligation to deny the Application on that basis.

Under circumstances where the HOA’s Governing Documents include some type of vague view protection, we recommend that the Association adopt a conservative approach to avoid overstepping which would result in a costly lawsuit. Due to the high correlation between property values, views, and a member’s interests in preserving the same, we recommend that HOAs contact their attorney to conduct a thorough review of their Governing Documents to provide clear direction on view protections within their community.

California HOA lawyers Contact your attorney to evaluate your HOA’s Governing Documents, view protections, and to update your existing Architectural Standards.  

-Blog post authored by TLG Attorney, Corey L. Todd, Esq.

*New Legislation

hoa-financial-protection

AB 2912, passed in 2018, provided welcome protections to homeowners in HOA’s from fraudulent activities by those entrusted with managing an HOA’s finances. AB 2912’s protections included: 1) requiring Associations to secure fidelity bond insurance in an amount equal to or exceeding current reserves, plus three months of assessments; 2) requiring a monthly review of financial statements rather than quarterly; and 3) prohibiting electronic transfers of funds without board approval. However, certain provisions of AB 2912 were unclear.

To settle any confusion, AB 1101 was passed by the California Legislature in September of 2021.  Effective January 1, 2022, Civil Code Sections 5380, 5502, and 5806, will be amended in order to clarify existing law by:

1) Specifying that HOA funds shall be deposited into accounts insured by Federal Deposit Insurance Corporation or the National Credit Union Administration Insurance Fund. This ensures that HOA funds are properly preserved and not invested in any high-risk investments or stocks.

2) Establishing clear limits before board approval is required for the transfer of HOA funds. While AB 2912 provided a process by which HOA’s should approve major expenses, the process for calculating those limits was somewhat confusing and was subject to change based on the amount of money on deposit in the HOA’s bank accounts. With AB 1101, the process is clear. For HOA’s with 51 or more units, transfers of $10,000.00 or more must be approved by written approval of the board. For HOA’s with 50 or fewer units, transfers of $5,000 or greater must be approved in writing by the Board.

3) Specifying that the HOA must not just maintain fidelity bond coverage, but that it must now also maintain crime insurance and employee dishonesty coverage, or their equivalent, for dishonest acts of the person or entity and their employees. This coverage would extend not just to the HOA and its directors, officers and employees, but also to managing agents and their employees.

California HOA lawyers Common sense legislation that protects the financial interests of HOA’s, which are unfortunately often targets for embezzlement, is a breath of fresh air. As always, HOA’s with questions regarding new legislation or legal requirements related to insurance or finances, should contact their HOA lawyer.

-Blog post authored by TLG Senior Attorney, Carrie Heieck

Due-ProcessRules are meant to be followed.  However, some homeowners unknowingly or knowingly violate these rules.  What should an association do under these circumstances?

First and foremost, every association should have clear disciplinary and enforcement procedures (i.e., due process) regarding the handling of a homeowner’s violation of the association’s governing documents (Civil Code section 5850(c)).  Think of associations as miniature governments in which each homeowner would have certain constitutional rights associated with their life, liberty, and property.  Due process refers to the fact that in such matters, the association must provide homeowners with notice of the violation, the opportunity to be heard, and a decision upon neutral analyzation by the association (Civil Code section 5855).

For due process to be effective any disciplinary procedures and enforcement of such must be clearly delineated in a policy.  The purpose of such a policy is to ensure the association will not arbitrarily or capriciously adjudicate enforcement matters.  The enforcement policy should include:

  • The method of how to report violations, whether by a homeowner or association agent (i.e., patrol, Board member, violations committee). Usually, associations have management companies and require that all reported violations be submitted in writing or email to management first.
  • Clear steps on what is to occur when a violation is noted. An association might decide to send an initial courtesy violation notice to the homeowner stating the observation of a violation.
    1. If so, the association should include: (1) details of the violation (i.e., when, where, who, what, how); (2) cite the association rule(s) the homeowner violated; (3) include a photo or photos of the violation; and (4) request compliance within a specific amount of days. The time period for the homeowner to rectify the violation may vary depending on the nature of the violation, but the association should always adhere to what would be considered reasonable under the circumstances.  Additionally, the association should mention that should the violation not be rectified, the homeowner may be fined pursuant to the association’s fine schedule.
    2. The association’s fine schedule should detail: the different categories of violations, fine to be assessed for each type of violation, and fines associated with repeated offenses. Please note that different categories of violations may have different fine schedules so that the fine fits the type of violation (e.g., short-term rental fine versus nuisance fine).
  • If the initial courtesy letter does not prompt the homeowner’s compliance, the enforcement policy may delineate whether the association will be sending either another violation notice detailing a shorter period of time to correct the violation OR a notice regarding the hearing when the Board is to meet to consider or impose disciplinary measures upon a member pursuant to Civil Code section 5855 and Corp. Code section 7341(d).
    1. The second violation/hearing notice should detail the violation in the same manner as the initial courtesy violation notice.
    2. Note that the association must notify the homeowner of a hearing in writing and deliver the notice pursuant to Civil Code section 4040 at least ten (10) days prior to the meeting at which fines may be imposed, or at least fifteen (15) days prior to the meeting at which the association may suspend the member’s common area use privileges. A homeowner must have an opportunity to be heard and present their case to the association before they may be disciplined.
  • If disciplinary measures or a monetary penalty is imposed, the association must provide written notification of this decision pursuant to Civil Code section 4040 within fifteen (15) days following the action.
  • If levying a fine upon the homeowner in accordance with the association’s fine schedule does not induce the homeowner’s compliance, the enforcement policy may then indicate legal counsel involvement. On the other hand, the enforcement policy might detail situations where the association will elect to grant a homeowner an extension of time to abate the violation OR dismiss the enforcement matter entirely due to lack of substantive evidence against the homeowner.
    1. Note that in certain circumstances, the association may skip the standard enforcement procedures and involve legal counsel immediately upon notice of the violation(s) (i.e., cease & desist, dangerous situations concerning member safety, irreparable damage to association property will occur).
California HOA lawyers It is quite important for associations to have a clear enforcement policy and to strictly adhere to such policy.  If the homeowner’s violation(s) remained unresolved, the association might proceed with litigation, in which case the court will scrutinize whether the association observed procedural due process.  Associations should look to their general counsel to draft or update their enforcement policy and ensure their management is familiar with the policy and its execution.

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

*Asked & Answered

recall-WEBAsked – We recently completed our annual meeting/election where approximately ninety-four percent (94%) of the membership participated. Almost immediately thereafter, we received a petition to recall the Board of Directors (“Board”). Must our association go forward with the recall election? What alternate options are available to the Board?

Answered – Most common interest developments (“CIDs”) are formed as nonprofit mutual benefit corporations. Under California’s nonprofit corporation law, “any or all directors may be removed without cause” (Cal. Corp. Code § 7222 (emphasis added)); meaning that directors can be removed by the membership for any reason, or no reason at all. In order to initiate the recall process, five percent (5%) of the membership may submit a petition to the CID (usually addressed to its president) requesting that a special meeting of the membership be noticed for the purpose of recalling the Board (or any director). The notice requirements are addressed in California Corporations Code section 7511(c).

Recall elections can disrupt the effective operation of the CID and are often a costly endeavor. And, in most cases, such efforts fail to achieve the petitioning members’ desired objective—the removal of the Board. This is especially true in situations where the CID’s Bylaws allow for cumulative voting and members try to recall individual directors. (See Removal & Recall of Directors – Individual Director or Directors.) Nevertheless, under most circumstances, the CID must take action in response to a petition to recall the Board. However, based on the facts contained in the question presented, there may be other options available. The three options available in response to a valid recall petition are:

  1. Perform only those acts required to conduct a recall election;
  2. Do nothing in response to the petition other than to inform the petitioners that the Board has elected not to take action; or
  3. Perform all acts necessary to hold a recall election and concurrent director election.

Each option will be discussed in turn.

Option #1 – Perform only those acts required to conduct a recall election.

According to the facts provided in this question, the petitioning members have submitted a petition to recall the Board. The petitioning members have not also requested that a director election be held in the event the recall is successful. Thus, the Board could simply notice a special meeting of the membership to recall the Board without soliciting membership votes on replacement directors. This approach is problematic for the CID.

Under California Corporations Code section 7220(b), a director continues to serve until their successor is elected, “unless the director has been removed from office.” Thus, if the recall is successful, all directors immediately cease being on the Board; in other words, the CID will be without a Board. Failure to have a Board violates California Corporations Code section 7210, which states that “[e]ach corporation shall have a board of directors.” (Emphasis added.) Moreover, without a Board, the CID will be significantly prejudiced; it will not be able to carry out its obligations under California law and its governing documents (e.g., maintenance may cease, rule enforcement ends, the CID will be unable to respond to lawsuits, etc.).

Since the CID will be without a Board, members will be forced to file a petition with the Superior Court for the appointment of a receiver pursuant to California Code of Civil Procedure section 564(a)(9). The receiver will then manage the affairs of the CID and will initiate the procedure to conduct a director election. This, of course, is problematic in several respects.  First, receivers are paid for their services. Most CIDs do not have adequate financial resources to cover unanticipated expenses. The receiver therefore may be forced (and will have the authority) to levy an emergency special assessment. Second, the receiver’s objectives are not usually in line with the interests of the CID’s members.

In light of the foregoing concerns, it would not be in the CID’s best interest to proceed in this fashion (i.e., conduct the recall election without a concurrent director election).

Option #2 – Do nothing in response to the petition other than to inform the petitioners that the Board has elected not to take action

Based on the information given, this option may be reasonable under the circumstances, especially given the overwhelming voter turnout (approximately ninety-four percent (94%) of the membership participated in the election). If such option is selected, the petitioning members will have the option of giving notice of the special meeting pursuant to California Corporations Code section 7511(c), or may petition the Court to require that such notice be given by the CID. Either way, the petitioners will be required to obtain a Court order directing the CID to prepare and distribute ballots as the petitioners do not have such authority. (See Cal. Civ. Code § 5115 (“Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member….”).)

This option, while seemingly reasonable, raises similar concerns referenced above. To the extent members petition the court for an order compelling the CID to take action in response to the petition (including providing notice and preparing/distributing balloting materials), the CID will incur significant legal fees in defense of its position in this matter (unless insurance-appointed defense counsel steps in to provide a defense). And, in the event the petitioners are successful, the CID will incur costs relative to holding the recall election/director election. Again, most CIDs are not in a financial position to incur these additional costs.

Option #3 – Perform all acts necessary to hold a recall election and concurrent director election.

The third, and final, option—to conduct the recall election and concurrent director election—is the only option available to the CID that minimizes the CID’s financial harm and liability exposure. It is therefore the preferred course of action in response to a petition to recall the Board.

It is important to note that recent changes to the California Civil Code governing CID elections has made it practically impossible for a CID to comply with the timing requirements contained in California Corporations Code section 7511(c) and those contained in California Civil Code section 5115. Nevertheless, California Civil Code section 5100(a)(1) makes it clear that the procedural requirements contained within the Davis-Stirling Common Interest Development Act (“Act”) control—“Notwithstanding any other law….” The CID must therefore comply with the procedural requirements contained in California Civil Code section 5115 notwithstanding the degree to which same deviates from those contained in California Corporations Code section 7511.

Other Option Available to the CID to Prevent Recall Petitions Immediately After a Director Election

The foregoing has addressed the ways in which a CID may respond to a recall petition immediately after the conclusion of a director election. It does not, however, address how a CID may prevent such petitions from being brought in the future. One way in which a CID may prevent such petitions from being brought in the future is to adopt rules governing recall elections. Although the Act does not directly address the extent to which a CID may restrict recall petitions, other bodies of law have. For example, in the California Elections Code, a person is precluded from bringing a recall petition against “an officer of a city, county, special district, school district, community college district, or county board of education” if one ore more of the specifically identified limitations apply (e.g., the officer “has not held office during [their] current term for more than 90 days”). A CID may adopt a similar limitation for director recalls.

California HOA lawyers Each recall petition is unique. Thus, while the foregoing provides general guidance based on the particular facts identified above, each CID must confer with its attorney to determine the appropriate response to a recall petition.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

*Asked & Answered

imageAsked Many owners in the community have requested that the board of directors consider removing an old, largely unused tennis court. We have three other tennis courts in the community and the space could be repurposed for a variety of other uses. Does the board have the authority to remove the tennis court?

Answered – Generally, not without membership approval. The membership pays dues for the maintenance, repair, and use of common area amenities. Many owners make their purchasing decisions in reliance on the available facilities a community has to offer. If the board unilaterally begins removing amenities without membership approval, there could be a risk of exposure to potential legal action. In addition, some associations have specific provisions in their governing documents that prohibit the elimination of common area amenities without membership approval.

That said, there can be limited situations where a board may have the authority to remove a common area amenity without a vote of the membership. Such situations may turn in part on the size of the amenity, whether it poses a hazard to the residents, and if the governing documents authorize such an action. However, disrepair alone generally cannot be the sole basis of a removal decision as the association usually has a duty to maintain common area amenities in good repair.

California HOA lawyers We recommend that associations and their boards proceed with caution when evaluating whether to remove a common area amenity. Counsel should be consulted to review the association’s governing documents to advise whether any specific provisions limit or restrict the board’s authority or require a vote of the membership for such actions.

-Blog post authored by TLG Attorney, Tim D. Klubnikin, Esq.

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