POWER OF ATTORNEY
TO RUN FOR THE BOARD

QUESTION: My mother owns a condominium. As her son, I was given durable power of attorney and conservatorship and would like to run for the board. The HOA says I am not eligible since I am not an owner. My power of attorney allows me to represent my mother's interest in all matters. The condominium is her largest financial asset. Our Trust/Probate attorney believes the HOA is obstructing my lawful authority under provisions of the power of attorney.

ANSWER: Your power of attorney allows you to conduct your mother’s business but it does not allow you to run for the board. If ownership is a requirement for serving on the board, you’re either on title or you’re not. By analogy, running for President of the United States requires that you be a natural born citizen and at least 35 years of age. If you are a 20-year old Canadian holding a power of attorney for a 40-year American citizen, you are not qualified to run for President. Sorry.

ELECTION QUORUM

QUESTION: Our HOA management company says that a quorum of the board is not necessary for the annual meeting. This seems to be contrary to California law.

ANSWER: Your management company is correct. A board quorum is not necessary because an annual meeting is not a board meeting--it's a membership meeting. You need a quorum of members for membership meetings and a quorum of directors for board meetings.

LIGHTING FOR
70-YEAR-OLD RESIDENT

QUESTION: My mother is 70 years old and has repeatedly asked her HOA to have a brighter light installed outside her door for safety reasons. The current light (a recessed one) is dim and she fears she will either trip or something will happen due to the substandard lighting. She can barely find the keyhole in her door because of the poor lighting. They told her they can't alter the aesthetics of her unit and she should have bought a house if she wanted brighter lighting.

ANSWER: Your board is willing to risk injury to a 70-year-old resident because a brighter light is not as attractive? Hmmm, aesthetics versus safety--which would a jury consider more important? First, your board does have the power alter the aesthetics of your mother's unit. Second, your directors need to read the California Supreme Court case Frances T. v. Village Green Owners Ass'n where plaintiff installed extra lighting to protect herself and the board ordered it removed. She was subsequently raped and robbed. The court concluded that the resident could bring suit against association and its directors for failing to take action to avoid harm and contributing to the risk of injury to residents. The court noted that associations function as landlords in maintaining the common areas and boards have a duty to exercise due care for their residents' safety in those areas under the association's control. Your board needs to re-think its position.

FEES AND PENALTIES
DUE TO MISMANAGEMENT

QUESTION: My company just recently acquired a new association. In going over the files it has come to our attention that taxes were paid late and many bills were paid late which resulted in penalties, late fees and reinstatement fees. Can the association invoice the previous management company for reimbursement of these fees?

ANSWER: The association can go after the management company IF it has a valid basis for doing so. However, the previous company may have a good explanation for the late payments (no money in the account, directors failed to sign checks, etc.). If the board was somehow complicit in the mismanagement, the management company will have defenses. The current board needs to thoroughly investigate the matter before committing itself to a particular course of action. In addition, it needs to weigh the costs of litigation versus potential recovery. Litigation is expensive and unpredictable.

ASSOCIATION VENDORS

QUESTION: Our board is forcing all homeowners to use their selected vendors for owner improvements and alterations to our individual units. The vendors selected by homeowners are all licensed, bonded and insured in accordance with state requirements. Does the board have the right to demand we use their preferred vendors?

ANSWER: When it comes to condominiums, homeowners own air space (and improvement such as carpets, cabinets, and plumbing fixtures). That means any time you alter a common area wall, ceiling or floor, or electrical and plumbing lines in the walls, you need the association's permission. As a result, it is not unreasonable for boards to require you to use their designated vendors any time you touch the common areas. If your unit improvements do not involve the common areas, such as replacing cabinets and counters, the association should not prescribe your vendors.

HOA NEWSLETTER
ADVERTISING

QUESTION: Can our HOA sell advertising in its newsletter? Can the ad money be used for HOA operating expenses?

ANSWER: Yes and yes.