QUESTION: Someone has been propping open the fire doors in our condo building. When the fire department issued a warning to the HOA, the board posted a letter advising everyone that since they are unable to determine who is propping open the door, all residents on the floor would be fined. Is that allowed?

ANSWER: Your board is taking the same approach my drill instructor took in boot camp--if one person did something wrong, the entire platoon was doing push-ups until they dropped. This approach to discipline has its uses for creating military order and cohesion but homeowners are not Marines and associations are not boot camps. Your board cannot fine everyone on the floor, only the perpetrator, and only after due process.

ONLY ONE VOTE PER UNIT?

QUESTION: Our association only allows one vote per unit, even though there are two people on title. Doesn't everyone have a right to vote?

CENSURE

QUESTION: A board member chairs a committee to develop new rules for our HOA. This has been dragging on for over a year. The director is reluctant to meet with other committee members and hesitant to turn over an electronic version of the new rules. Can this board member be censured for interfering with HOA business? As part of the censure, can we disallow the director from making or seconding motions?

ANSWER: A censure is an expression of the board’s displeasure with the actions of a fellow director. So, yes, if the board cannot persuade your errant director to cooperate, he can be removed as chair of the Rules Committee and censured for interfering with board business. However, you cannot prevent the director from making or seconding motions. He continues to have all the rights of a director even though the board is unhappy with him.

CUMULATIVE VOTING
REQUIRED?

QUESTION: With the passing of legislation regarding cumulative voting, we are not sure on how it directly affects us. Our bylaws currently provide for cumulative voting.

ANSWER: Since your bylaws provide for cumulative voting, your association must use it for the election for directors. Civil Code §1363.03(b) To get rid of it, you must amend your  governing documents.

PETITION TO ELIMINATE
CUMULATIVE VOTING

QUESTION: A growing number of home owners in our association want to dispense with cumulative voting. How is this typically done? Do we need to present a petition to the board to amend our governing documents to remove it? Is the board bound to honor such a request?

ANSWER: Yes, you can present a petition signed by at least 5% of the membership to hold a special meeting for the purpose of voting on an amendment deleting cumulative voting from bylaws (better check the CC&Rs to see if there is a provision there as well). The board is obligated to set a date, appoint an Inspector of Elections, and send out ballots to vote on the issue. If the board is cooperative, the association's attorney can draft the language for the amendment. If the board is not cooperative, you should include the language of the amendment in your petition so it will appear on the ballot. 

LIMITS ON SPEECH

[Regarding free speech bullies] Furthermore, the right of free speech should be balanced in a homeowners association setting with matters of nuisance, meeting disruptions etc., which are commonly a violation of the CC&Rs. Even in the public setting, free speech rights can be limited by time, place and manner such as when cities set limits on times of parades, and control riots, and limitations on signs that may be posted, etc. -Beth Grimm, Attorney

  Very truly yours,
 
   Adrian Adams, Esq.
   Adams Kessler PLC