HOA Governance

Committees: Delegating Board Authority to Achieve Efficiency

Published on: June 13, 2012 | by Steven J. Tinnelly, Esq.

hoa attorney *New Resource

The 2012 amendments to the “Common Interest Development Open Meeting Act” have made it significantly more difficult for Boards to manage the affairs of their HOAs in a quick and efficient manner. Those amendments, as discussed in our previous resource,”Senate Bill 563: Boards and their Business,” made significant changes to the Civil Code, including, (1) revisions to the definition of meeting to include executive session meetings, (2) the inclusion of a new “No Action Without a Meeting” rule, (3) the implementation of a rule prohibiting Boards from considering items of business not noticed on a meeting agenda, and (4) a prohibition on meetings conducted or actions taken through email. As any Board Member or Manager knows, these changes have not only deprived Associations of many of the tools previously used to conduct business outside of regularly held Board meetings, but have also obstructed the channels and methods of communication that are necessary to effectively assign responsibilities and make ongoing mid-project decisions. Although HOAs are unfortunately bound to abide by these requirements, there are devices available to the Board that can significantly decrease the burdens these requirements impose. This blogpost discusses the use of one such device–the committee–and the various ways in which it may be used by Boards to address HOA business within the constraints imposed by the Civil Code.

Our HOA lawyers have also published this information in our new resource entitled “Committees: Delegating Authority to Achieve Efficiency,” available for download from our library.

HOA Accommodations for Disabled Residents

Published on: May 1, 2012 | by Steven J. Tinnelly, Esq.

homeowners_association *New Resource

Various laws have been established to protect the rights of disabled individuals, such as the Americans with Disabilities Act (“ADA”) and the Federal Fair Housing Act (“FFHA”). These laws govern both public and private facilities, and set forth the degree to which an entity, such as a homeowners association (“HOA”), is responsible for making modifications or improvements to accommodate individuals with disabilities. This blog post is in response to recent client inquiries relating to this issue; it addresses the applicability of each of these laws to HOAs and sheds some light on the potential issues that HOA Boards and Managers should be aware of.

Our HOA lawyers have also published this information in our new resource entitled “Disabled Residents and the Law,” available for download from our library.

Rogue Directors: Battling Bad Behavior

Published on: April 13, 2012 | by Steven J. Tinnelly, Esq.

hoa board member *New Resource

Serving as a Director on your HOA’s Board can be a frustrating and thankless job. Raising assessments, enforcing the governing documents, and taking other potentially unpopular actions can lead to disputes and charged emotions. Despite that fact, Directors, as representatives of the Homeowners Association, must conduct themselves in an appropriate manner. Overly aggressive or inappropriate behavior by a rogue Director or officer can give rise to liability for both the Association and the Board. Fortunately, there are mechanisms available to safeguard against liability in such situations and, if necessary, to have the rogue Director removed. This blog post addresses those mechanisms.

Our HOA lawyers have also published this information in our new resource entitled “Rogue DIrectors: Battling Bad Behavior,” available for download from our library.

Challenges to HOA Elections: Facts and Consequences

Published on: April 3, 2012 | by Steven J. Tinnelly, Esq.

homeowners association law.jpg *New Resource

Electing a Board of Directors to manage the Association is a complex and time consuming process. Despite the best of intentions, sometimes things slip through the cracks, whether it’s the qualifications of someone on the ballot or the manner in which votes are collected and tallied. When this occurs, the appointment of a specific director or the election as a whole can be challenged by a member. This blog post discusses the basics of such a challenge, including who has standing to bring a challenge, when a challenge can be brought, and how such a challenge can affect the Association.

Our HOA lawyers have also published this information in our new resource entitled “Challenges to Association Elections: Facts and Consequences”, available for download from our library.

Challenges to a Board Member’s Qualifications After Election?

Published on: March 26, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered hoa-election

Asked – May a homeowner challenge the qualifications of a member to serve on the HOA’s Board of Directors after they have been elected?

Answered – Maybe, depending on the date of the challenge. Corp. Code §7527 provides that “an action challenging the validity of any election, appointment or removal of a director or directors must be commenced within nine months after the election, appointment or removal. If no such action is commenced, in the absence of fraud, any election, appointment or removal of a director is conclusively presumed valid nine months thereafter.” The election will thus be deemed valid unless the challenge is brought within nine (9) months after the election.

However, there is a slight conflict in the law with respect to election challenges. Civil Code §1363.09(a) provides a one (1) year period to bring civil actions for declaratory or equitable relief relating to violations of the election and voting procedures set forth in that article. Accordingly, the law is slightly inconsistent with respect to the exact period in which such challenges may be brought.

HOAs can be significantly impacted by actions taken under the direction of an unqualified Board Member. Surprisingly, most original governing documents do not contain any specific qualifications for a member to serve on their HOA’s Board. Many HOAs therefore opt to amend their Bylaws to establish reasonable qualifications for Board Members (e.g., membership in the association, good standing with regard to assessment payments, etc.). Adoption and enforcement of Board Member qualifications assist in ensuring that the best possible members are entrusted with managing the HOA’s affairs.

To submit HOA law questions to Tinnelly Law Group, click here.

Content provided by Kai MacDonald, Esq. – HOA attorney with Tinnelly Law Group.

Surveillance Cameras Within Your Association

Published on: January 26, 2012 | by Steven J. Tinnelly, Esq.

*New Resource

Video surveillance cameras are now being installed almost everywhere, so why not in your homeowners association (HOA)? When used properly surveillance cameras can provide additional security, a greater sense of safety and a deterrent to would be criminals. Yet several questions and considerations are often raised with respect to the installation of surveillance cameras within a HOA.

Does it violate the law for a HOA to install surveillance cameras within the community? Are these cameras helpful in reducing criminal activity? Is it acceptable to use “dummy” cameras instead of operative cameras? Does a HOA have to post signs notifying the homeowners that they are under video surveillance? These are some of the questions that HOAs are asking legal counsel as their Boards consider installing surveillance cameras to monitor entry gates, parking facilities and other common areas.

This blog post will address some of these questions while providing your HOA and management personnel with some guidance in this area. This information can also be found in our new resource entitled “Surveillance Cameras within your Association”, available for download from our library.

HOA Communications with Homeowners: Methods of Delivery?

Published on: January 16, 2012 | by Steven J. Tinnelly, Esq.

*Asked & Answered hoa law mailbox

Asked – Is it true that the law requires an Association to send notifications and communications to the homeowners via USPS only?

Answered – No. An Association’s governing documents may require that certain types of communications with homeowners be sent via USPS. However, in the event that no such requirements are contained in an Association’s governing documents, the California Civil Code may still require USPS for certain communications. One example would be a Notice of Lien, where an “[A]ssociation must notify the owner by certified mail.” Civil Code § 1367.1(a).

However, the homeowner can also consent to receive certain communications by other means besides USPS, such as electronic mail. An example is the Association’s Annual Update of Reserve Study, which may be delivered by “E-Mail, facsimile, or other electronic means, if the recipient has agreed to that method of delivery.” Civil Code §§ 1350.7(b)(3), 1363.005.

Be sure to review your Association’s governing documents to determine what provisions, if any, govern how notifications and communications are made between the Association and the homeowners. If the governing documents seem to be ambiguous, consult your Association’s legal counsel.

To submit questions to Tinnelly Law Group, click here.

Imposing Fees on HOA Members who Rent out their Homes?

Published on: December 5, 2011 | by Steven J. Tinnelly, Esq.

The additional burdens that renters impose can be substantial for many common interest developments–especially those developments designed as “recreational communities.” Renters who lack a sense of investment in the community or who are unfamiliar with its operational structure can place greater strain on the community’s management and maintenance resources. This may not only frustrate other owners within the community, but may also significantly impact the financial health of the Homeowners Association (“HOA”) formed to preserve and protect it.

We have written about how HOAs adopt and enforce rental restrictions as a means to alleviate some of the problems posed by renters. We have also published a resource explaining how new legislation taking effect January 1, 2012 will limit a HOA’s ability to restrict rentals in certain circumstances. However, in addition to imposing rental restrictions where possible, can a HOA impose a fee on owners who wish to rent out their homes? In the recent, unpublished decision of Watts v. Oak Shores Community Association, the answer may be yes.

2012 Legislative & Case Law Update Now Available

Published on: November 28, 2011 | by Steven J. Tinnelly, Esq.

Our “2012 Legislative & Case Law Update” newsletter is now available in our library!

The 2012 Legislative & Case Law Update provides an overview of the new legislation impacting California Homeowners Associations (“HOAs”) and the community association industry professionals who service them. The new legislation includes, among other things, bills that impose new requirements on Board Member meetings and new limitations on HOAs that wish to restrict rentals in their communities.

The 2012 Legislative & Case Law Update also provides an overview of some important new case law, along with some links to additional resources we have published on the items discussed therein.

Click here to read our 2012 Legislative & Case Law Update

Have questions on any of the new legislation or case law? Click here to send us a question online.

Granting Exclusive Use of Common Area: Approval Required?

Published on: November 15, 2011 | by Steven J. Tinnelly, Esq.

*Asked & Answered

Asked – Our Board wants to grant homeowners exclusive use of our Association’s common area storage closets and also charge a fee to such homeowners wanting exclusive use. May they do this without membership approval?

Answered – Probably not. Civil Code § 1363.07 substantially restricts an Association’s ability to grant exclusive use of common area. Provided that your Association’s governing documents do not state otherwise, granting exclusive use of any portion of the Association’s common area requires approval by 2/3 (67%) of the membership. There are a few narrow exceptions to this requirement; however, none of the exceptions provided in Civil Code § 1363.07 likely apply to your situation.

An Association is permitted to receive monetary compensation in exchange for granting exclusive use of Association common area. Civil Code § 1363.07 requires disclosure of such compensation when the issue is presented to the membership for a vote.

Be sure to review your Association’s governing documents to determine what provisions, if any, govern the use rights of common areas and exclusive use common areas within your Association. If the Board does not have the authority under the governing documents, or does not have the requisite approval under the Civil Code, to grant exclusive use of Association common area, homeowners may bring an action in court to reverse the grant.

To submit questions to Tinnelly Law Group, click here.