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DOUBLE PROSECUTION
QUESTION:
We have a sub-association and master association, each with their own
CC&Rs. Many similar rules are in both sets of CC&Rs such as the
banning of work-trailers in a driveway. If I break the rules and park a
trailer in my driveway, can both
associations fine me? Is this not double prosecution for the same
offense?
ANSWER:
Yes, both associations can fine you because they have overlapping
jurisdictions. It's a lot like state and federal governments. Your
master association is analogous to the federal government and your
sub-association is a state. As with governments, each association has
authority to adopt and enforce its own rules in those areas for which
they have jurisdiction.
Multiple Violations. For example,
when Jared Loughner critically wounded Rep. Gabrielle Giffords during
his rampage in Tucson, Arizona, he simultaneously violated state and
federal laws with one attack. As a result, Loughner faces double
prosecution for that single event. Arizona will prosecute him for
attempted murder, while federal prosecutors will prosecute him for
attempted assassination of a member of Congress.
RECOMMENDATION: Don't park your trailer in the driveway.
TRANSFER TO RESERVES
QUESTION: Are there legal requirements that the board get approval from members to move excess operating funds to the reserve account?
ANSWER: The
board can transfer excess funds into reserves on its own authority but there is potential for adverse tax consequences depending on the association's tax filing.
CERTIFIED MAIL
 QUESTION:
Our property manager sent a delinquent owner a notice of foreclosure
via certified mail. However, the owner never signed for it. Can he
use that as an excuse to derail the foreclosure?
ANSWER:
Probably not. Although Civil Code §2924b(b)
requires that notices be sent by registered or certified mail, it does
not require a signed receipt before an association moves to the next
step in the foreclosure process.
Willful Failure to Sign.
To require a signed receipt means a person could stop a foreclosure in
its tracks by refusing to sign for letters. Because owners often refuse
to sign for certified mail, Civil Code §2924b(e) also requires that notice be given concurrently by first-class mail. The court in Bear Creek Master Assn. v. Edwards
addressed the issue of unsigned receipts and determined that notice
cannot be defeated by a person's willful failure to accept certified
mail. The Bear Creek court commented that,.
. . while a signed
return receipt may create a rebuttable presumption that the notice was
received, the absence of such a signed return receipt does not negate
any other presumptions concerning mailed items. Under Evidence Code
section 641, "[a] letter correctly addressed and properly mailed is
presumed to have been received in the ordinary course of mail." Notice Requirements. Your question was not clear about '"notice of
foreclosure." As addressed in our February 13 newsletter, a foreclosure starts with a Notice of Default (NOD). After three months a Notice of Sale can be prepared. For the NOD, there is an additional requirement of personal or substituted service for assessment lien foreclosures as set forth in Civil Code §1367.1(j).
Service of the NOD can be a problem when the owner cannot be located or
is deceased. As for a Notice of Sale, it must be recorded, published,
mailed and posted but not personally
served.
RECOMMENDATION: Because taking away someone's home through foreclosure is quite
serious, associations must carefully follow all steps required by law for giving proper notice to a delinquent owner. To that
end, boards should use experienced collection companies that specialize in homeowner associations.
Many thanks to attorney Richard Witkin of the collection service Witkin & Neal, Inc. for his assistance with this question.
FEEDBACK
Speed Bumps.
A series of strategically placed speed bumps could be a great deterrent
and the best “passive” means of reinforcement [for unsafe streets].
-Allison C.
New Signage. Alternate sign suggestion: "Steep
grade area. Vehicles of any sort not equipped with DOT approved
braking systems are strongly encouraged to avoid this area." Bikes might be fine on the steep grade, whereas skate-boards might not be. -Fin B.
RESPONSE:
With the current state of California's educational system, I suspect
most children and some parents would have no idea what your sign meant.
"No skateboarding" is easier to understand.
Open Forum Questions.
Regarding the Open Meeting Act and the limitation put on boards, what
is the best way for homeowners to have their questions answered? -Pat C.
RESPONSE:
With the demise of waterboarding, there is no effective way of forcing
directors to answer questions if they don't want to. The only real
solution is to elect new directors.
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Adams Kessler PLC. Readers should not act on issues raised in our newsletters or website without consulting legal counsel.
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