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LOOKIE-LOOS
QUESTION: We currently give each prospective buyer twelve months of board
minutes. Do we have to continue giving them or can we stop?
ANSWER:
It depends on who is asking. If the property is in escrow and the request is made by an escrow
officer (who is acting on behalf of the seller), you must timely submit records to escrow. Even though minutes are not included in the list of required records (Civil Code §1368), members separately have a right to minutes (Civil Code §1365.2(i)(2)). Accordingly, you must provide them if so requested.
Lookie-Loos. If the property is not in escrow and the request is from a potential buyer (a "lookie-loo"), you can politely
decline. A drive-by looker has no right to records and you have no obligation to provide them.
Member Request.
Whether a unit is in escrow or not, an owner has a right
to view and copy records. That does not mean he can make a standing
request that any potential buyer who asks for minutes be given a set.
The owner must make the request for himself. You can then provide
minutes to the owner and he can take on the cost of copying and
distributing minutes to potential buyers.
STREET PAVING
 QUESTION: I
feel the HOA is unreasonable in asking residents to walk a mile (really)
while streets are repaved. Is there relief under Civil Code 1361.5?
-Michael M.
ANSWER: You're
kidding right? Tens of thousands are resolutely and without complaint enduring the devastation of an
earthquake, tsunami and radiation leaks, and you want to take action against your association for the
temporary inconvenience of street paving? No, you don't have cause to sue your association. A little walking will do you good.
LEVYING
BANK ACCOUNTS
QUESTION:
Our HOA is trying to recoup overdue assessments from owners. We've gone
to small claims court and received a judgment against an owner.
However,
when we try to levy a bank account CCP §684.110(c) says “. . . service
shall be made at the office or branch . . . at which a deposit account
levied upon is carried." We have debtors that we know have bank accounts
but the branch is unknown and finding it
is nearly impossible. Any recommendations?
ANSWER:
Some banks do not require service of a levy on the specific branch
where the account is located. This is more common now because of the
advent of online banking. Otherwise, where would you serve a levy if the
account is online instead of being held at a branch office?
Agent for Levies.
Where there is a specific location requirement, the levy must be served
on that location. There is legislation requiring banks to designate a
local agent or office for all levies but most banks are slow in
complying. There is growing movement in
California’s creditor lobby to compel banks to move faster to comply.
RECOMMENDATION: Until
banks designate an agent or office for levies, you can hire a private
investigator familiar with locating bank accounts. Some collection
attorneys offer investigative services to their clients. The cost is
approximately $200. Most private investigators do not charge if no
account can be located (or charge a nominal fee).
Thank you to John D. Guerrini of the the Guerrini Law Firm for his assistance with this question. Mr. Guerrini's firm specializes in commercial and consumer debt collection.
SUSPENDING TRASH
PICKUP
 QUESTION:
Our HOA has proposed a policy where we stop trash pick-up
from homes that are more than 90 days delinquent. We save money since we don't have to pay for
service to those owners. Do we need to send the proposed policy to members and give 30 days to respond since there isn't any
monetary penalty involved?
ANSWER:
It is always a good practice to send policy changes to the membership
for review and comment. In this case, I'm not sure you can adopt the
policy even if the membership supported it.
Operating Rules.
Your proposed policy appears to fall under the definition of an
"operating rule." The Davis-Stirling Act defines an operating rule as a
regulation adopted by a board that applies generally to management and
operations or the conduct of the business and affairs of the
association. Civil Code §1357.100(a).
Even though you are not imposing a monetary penalty, suspension of
services arguably falls into the category of member penalties for
violation of the CC&Rs (failure to pay assessments). Civil Code §1357.120(a)(3). As such, a 30-day notice should be given to the membership for review and comment. Civil Code §1357.130.
Enforceability. The Davis-Stirling Act goes on to state that an operating rule is valid and enforceable only if it is:
- in writing,
- within the authority of the board,
- consistent with the law and the governing documents,
- adopted in good faith and in substantial compliance with the requirements of statute, and
- reasonable. (Civil Code §1357.110)
Reasonableness.
If your policy ended up in court, a judge could decide that suspension
of trash removal was inconsistent with your governing documents and/or
unreasonable. If your CC&Rs are typical, they have a generic
provision obligating the board to act in the best interests of the
health and safety of the membership. The accumulation of garbage
attracts vermin, i.e., flies, cockroaches, mice, rats and the like. That
creates a potential health risk for the community. Even if health and
safety were not covered by your governing documents, a court could still
find the practice unreasonable.
Contrary to Law? The
courts treat associations as landlords when it comes to suspension of
utility services. Under landlord-tenant law, landlords may not willfully
cause, "directly or indirectly," the interruption or termination of
utility service to a tenant's residence. Utilities covered include, but
are not limited to, water, heat, light, electricity, telephone, gas,
elevators and refrigeration. Civil Code §789.3. A judge could decide
that trash removal qualifies as a "utility" and could not be withheld by
the association.
RECOMMENDATION: You should run this by legal counsel before adopting your proposed policy. If it were me, I would not adopt the policy.
FEEDBACK
Speed Bumps.
Speed bumps undoubtedly save lives and prevent damage to property
caused by speeding motorists. I think that trumps the small amount of
greenhouse gases created when a car may accelerate after driving over a
speed bump. Without the speed bumps in our complex, some people would
drive as though they were on a NASCAR track, endangering everyone. The
delivery people are the worst culprits. -John A.
RESPONSE:
Associations will not get sued over a minuscule increase in greenhouse
gases arguably generated by speed bumps. But they can (and likely would)
get sued if a child is run over because of a known unsafe street where
the board did nothing to address the problem.
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