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WIFE'S FREE SPEECH RIGHTS
QUESTION: My
husband is a board member. I want to do a mailing and posting on a website
expressing my concerns about board and property management actions, non-actions,
unethical behavior, secrecy, and lack of fiduciary duty (my husband is not a
part of the behavior). I also want to circulate a petition to bid out the
property manager. Can I do this if my husband is a board member?
 ANSWER:
You do not give up your free speech rights when your husband goes on the board,
so you can mail letters, make phone calls, and post information on websites
until your heart's
content.
However, your actions may significantly impact your husband’s ability to work
with fellow directors. A little discretion may go a long way. Also, a membership petition seeking bids from other management
companies is not binding on the board. Direct democracy is quite limited.
CUMULATIVE
VOTING
QUESTION: A few years ago, we amended
the bylaws & CC&Rs to eliminate cumulative voting to stop people from soliciting
proxies and abusing the voting/election process. This year the current board
decided to allow cumulative voting even though the bylaws prohibit it. Is that
legal?
ANSWER: If
cumulative voting is not provided for in your association's governing documents,
it cannot be used. Corp. Code §7615(a). If the board wants to use cumulative
voting, the bylaws must be amended to provide for it.
MEETING TAPES
 QUESTION: Regarding the
taping of a board meeting by the secretary, prior to the approval of the meeting
minutes and then the destruction of the tape, does a director have the right to
hear the tape of the meeting in which he participated?
ANSWER:
Normally, taping by the secretary is solely for his/her use in the preparation of minutes and,
in my opinion,
should be erased once the draft minutes have been prepared for the board's
review.
Some boards have the unfortunate
experience of suffering the ranting of a rogue director who is constantly disrupting meetings,
intimidating fellow directors, and threatening litigation. His/her bullying and threats
will inhibit free and open discussion by directors if they fear (i) the
recordings may be
used in an alleged defamation action or (ii) snippets of the recordings will end
up on the internet. For that reason, boards can and should adopt a policy requiring that tapes be erased once the minutes have been
prepared. Accordingly, the board can deny the director's request to listen to
tapes before they are erased. For more information, see Recording Board
Meetings.
CONDOMINIUM
RIDERS
Hi Adrian: [Regarding delinquent owners] I'd like to point out that it is possible for banks to pay
association assessments if they wanted to. Each mortgage lender attaches a
Condominium Rider or Planned Unit Development Rider to each mortgage that is
written. Paragraph F of each rider states:
F. Remedies. If the borrower does not pay condominium [PUD] dues and
assessments when due, then the Lender may pay them. Any amounts disbursed by
Lender under this paragraph F shall become additional debt of Borrower secured
by the Security Instrument. Unless Borrower and Lender agree to other terms of
payment, these amounts shall bear interest from date of disbursement at the Note
rate and shall be payable, with interest, upon notice from Lender to Borrower
requesting payment.
Although the word "may" is used above, making it discretionary on the part of
the Lender, the Lender can call this paragraph into effect. The Lender can pay
the assessments, add it to the principal of the mortgage plus the interest rate
of the Note. Mostly likely the banks will never do this if the mortgage is in
arrears as it increases their loan. Then if they have to foreclose they have to
ask for more money. However, in cases where the Borrower is not delinquent in
the mortgage payment, but delinquent in the assessments, this is a possibility.
-Sam Dolnick
Very truly yours,
Adrian Adams, Esq.
Adams
Kessler PLC
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