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MOBILE APP AWARD
 I
am pleased to announce that Adams Kessler PLC has been awarded the
“Silver Award” from the International Academy of Visual Arts and W³
Awards for our Davis-Stirling Mobile App. The W³ Awards are internationally recognized and honor creative excellence for outstanding websites, web video and mobile apps.
 App Description.
Our Mobile App gives users instant access to a fully indexed
Davis-Stirling
Act as well as our website's forms and commentary regarding budgets,
reserves, elections, recalls, board meetings, the Open Meeting Act, etc.
The App allows board members, managers and homeowners to look up
information with the stroke of a finger.
Free Download. The App can be downloaded onto iPhones, iPads, Android phones and Blackberries. If you have not already done so, you should give it a try. -Adrian Adams
RENTER FEES
 An interesting ruling was issued
on Friday. It is a lower court decision so it cannot be cited for
authority but it addresses the issue of whether owners can be charged a
fee related to their renters. In the case of Ken Watts v. Oak Shores Community Association,
the five-week bench trial resulted in a well-reasoned decision that
members who rent-out their properties can be charged a fee for the
burden their renters put on the association. As was noted in the court's decision, Oak Shores fully justified its fees.
RECOMMENDATION:
As long as an HOA can show that fees related to renters are reasonable
and merited (and not pulled out of thin air)
this case demonstrates that such fees can survive a legal challenge.
Boards should be cautioned not to levy fees on renters "just because."
They should consult with legal counsel to evaluate if the association
has a legitimate basis for such fees.
COLLECTION NOTICE
 QUESTION: Civil Code 1367.1(k)
states "upon written request by an owner identifying a secondary
address for purposes of collection notices, the association shall send
additional copies of any notices required by this section to the
secondary address provided." Would this include billing statements and
or late statements?
ANSWER:
Some may argue that billing statements and late statements do not
qualify as "collection notices" but why take the chance? Which is less
expensive, a postage stamp or a year of litigation? Whenever in doubt,
give notice. (Thank you to Richard Witkin, Esq. for feedback on this question.)
FEEDBACK
 I'm sorry I could not print all the emails I received on this issue. Following is a sampling. -Adrian
Director Emails #1. Surely SB 563
must be one of the most ludicrous pieces of bureaucratic legislation
produced. In this day and age and its modern means of
communication, boards are now no longer permitted to use one of the more
efficient means of communication in a busy world. This is absurd. If a
member wishes to make some urgent alteration to their property, the
email system is a wonderfully quick answer to their problem, rather than
waiting for a formal board meeting. In Mr Bumble's immortal words, "The
law is an ass." -Peter A.
RESPONSE: I agree, at times it can be. It points up the importance of supporting CAI's Legislative Action Committee.
Community associations need a strong lobby to counteract corrosive
legislation pushed by the California Association of Realtors and
proposed legislation by hostile "consumer advocates" wanting to cripple
collection efforts HOAs need to stay financially afloat.
Director Emails #2. I
have to honestly say, the restriction on board discussions by email is
absolutely anal. We are currently undergoing replacement of a large hot
tub. It had been a 3-month ordeal as we must deal with our city's Health
&
Building Departments. This project, as with our recent window
replacement project and reroofing project, requires massive email
communications between the board, contractors, the project manager &
our property manager to make decisions. If we can no longer do this, we
will be posting meeting notices daily. -Joseph L.
RESPONSE:
Administrative and oversight tasks can still be handled via emails if
delegated to the president and/or manager. Once delegated, the president
and manager can make decisions and retain the right of email
consultation with directors. The new statute specifically exempts
delegated matters from meeting requirements: "Item of business" means any action within the authority of the board, except
those actions that the board has validly delegated to any other person
or persons, managing agent, officer of the association, or committee of the board comprising less than a majority of the directors. (Civil Code §1363.05(k)(1))
Director Emails #3.
Changes to the Open Meeting Act underscore the need for policy
governance in every common interest development so work can get done
between board meetings. Every community manager makes daily decisions
that affect the association(s) they serve, but there are certain limits
to our levels of authority, and
there should be. That being said, it appears that with these changes
to the law boards will need to either wait to conduct business at
scheduled meetings or expand the decision making authority of their
managers. Since the former may not always be possible, the best way to
accomplish the latter is for boards to develop policies for managers to
follow when they need to ask the board but can’t. -Dirk F., Manager
RESPONSE: I agree. The unintended consequence of SB 563
is that boards will have no choice but to delegate more authority to
their president, manager, officers and committees so as to keep business
flowing between meetings. Boards will need to work with management and
legal counsel to develop policies that describe the parameters of the
delegated decision-making authority.
Director Emails #4.
If the president, vice president and treasurer were to discuss via email
a financial matter in their roles as officers, would this constitute an
illegal board meeting? -Jenson C.
RESPONSE: Matters delegated to officers can be discussed without violating the Act. Civil Code §1363.05(k)(1).
Director Emails #5.
What does this new law mean regarding maintenance situations? Our
board meets once a month. Can we vote to allow board members to conduct
business electronically in an emergency situation. -Jean S.
RESPONSE:
You can't vote to bypass the new restrictions. However, you have the
following options: (i) delegate authority to the president and/or
manager to handle maintenance issues between meetings, (ii) address
emergency issues via email unanimous written consent, and (iii) call
special meetings of the board.
Director Emails #6. I am
stunned and angered by the new legislation. All of us work. We don't
have time for phone calls, letter writing and additional meetings to
conduct our business in a timely manner. This is so dictatorial that I
find it offensive that HOAs have to endure so many restrictions that it
becomes almost impossible to be responsible and pro-active board
members. Whoever churns out this stuff has no idea what havoc and
frustrations they are thrusting on HOAs. This is wrong, unjust and just
plain unacceptable. If you think I am angry, you are correct. -Dawn B.
RESPONSE:
For some reason, the Legislature thinks that volunteer board members
are equivalent to full-time paid city council members with a bevy of
staff at their beck and call and large budgets.
RECOMMENDATION:
Other law firms may have a different interpretation of what boards can
and cannot do once the new restrictions take effect January 1, 2012.
Boards should consult with legal counsel on how best to implement the
changes.
Newsletters are for advertising & general information by
Adams Kessler PLC. Readers should not act on issues raised in our newsletters or website without consulting legal counsel. |
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