OLD HANGING CHADS

QUESTION: We have a small group of owners that are still making noise about an election that occurred in our association 16 years ago. Since the limit to challenge an election is nine months and the association is only required to keep ballots for one year, is it advisable to destroy the ballots after one year as long as there are no legal challenges pending? It seems to be a good idea so that nobody can come back 10 years later looking for "hanging chads."

ANSWER: The statute is a bit contradictory on the time limit for challenging an election. The election provision of the Davis-Stirling Act references the nine-month limitation provided for in the Corporations Code but also sets its own limit at twelve months. In either event you are well beyond the statute of limitations for an election challenge. Provided there are no pending legal challenges, you can dispose of the ballots. You should also adopt a written records retention policy in consultation with your CPA and legal counsel.

POSTING MINUTES
ON THE WEBSITE

QUESTION: My association used to post meeting minutes on our website. They stopped posting them and now require us to pick up copies at the office. Is there a reason why our minutes can't be posted on our website? We have over 700 members.

ANSWER: There is nothing in the law requiring boards to post minutes on a website. All that is required is that they be made available within 30 days. Civil Code §1363.05(d). Even so, if associations have their own websites, they should post their minutes (except for executive sessions). This keeps the membership informed without any expense to the association or the members. Although not required, I prefer that minutes be posted in a password protected area of the website. If the association does not have a website, minutes or summaries of the minutes should be distributed to owners in the association's newsletter or included monthly in owners' billing statements.

UNLEASHED DOGS

QUESTION: Our CC&Rs require that dogs be placed on a leash. A few owners allow their dogs to run unleashed in the common areas. The dog people have petitioned the board to interpret "leash" to mean voice command or an "e-leash or collar". This issue is taking a lot of board time and has created a division between owners in the community.

ANSWER: I doubt that voice commands and electronic leashes were contemplated when the leash restriction was originally enacted. The board has a duty to either reasonably enforce the existing CC&Rs or properly amend them. If the CC&Rs are not enforced and someone is injured by a loose dog, the association (and the board) would likely be sued. It might be that voice commands and electronic leashes are effective alternatives to traditional leashes. However, this is a matter that should be debated and voted on by the membership. If the leash requirement is in the Rules rather than the CC&Rs, the board should send a proposed rule change to the membership and allow at least 30 days of feedback before changing the rule.

PROSTITUTION AND
ILLEGAL PARKING

QUESTION: I have an owner that passed away earlier this year. He had a tenant that lived with him who is still residing in the unit. This particular tenant has been dealing drugs, engaging in prostitution, and having her guests park in fire lanes. Does the association have any legal right to evict the tenant?

ANSWER: Illegal parking? That's usually the last straw. Unfortunately, if the association does not own the unit, it cannot evict the tenant. However, if it has sufficient evidence of illegal activities, it can contact law enforcement and it can make a demand on the estate to evict the tenant.

SPENDING RESERVE MONEY

QUESTION: Our neighborhood needs to have all of the streets repaired. The bids for the work are about $50,000. Does the board have the authority to vote on this capital expense? Some members insist the homeowners must vote on this large expenditure. They argue that some members may want to make other repairs first.

ANSWER: The board has the authority to make reserve spending decisions without a vote of the membership. Moreover, as provided for in Lamden v. La Jolla Shores (1999), boards can decide the timing, method and extent of repairs.

EXECUTIVE SESSION
WITHOUT A LAWYER

QUESTION: Can a board go into executive session to discuss legal matters without having an attorney present or available by phone?

ANSWER: Yes.