QUESTION. My neighbor installed a message bed which sends noise and vibrations into my unit and keeps me awake at night. The association has not been very supportive as they do not feel it is a nuisance. Are there any requirements for the association to take action or do I need to take action directly with the unit owner?

ANSWER. If the noise from the bed is such that it constitutes a nuisance, both you and the association can take action against the owner for violation of the nuisance provision of your CC&Rs. In an unpublished opinion, the California Appellate Court ruled that an association acted reasonably when it required an owner to remove his hot tub because the noise from the tub constituted a nuisance. Pacific Ranch Homeowners Association v. Murray (2008).

Objective Standard. To be a nuisance, the noise must be significant enough to unreasonably interfere with the quiet enjoyment of your property. If your CC&Rs provide an FIIC rating for sound transmission between units, an acoustical consultant can test the noise levels. If they fall below those set in your CC&Rs, the matter is closed. If the noise is above those levels, then there is an objective determination that your neighbor is creating a nuisance.

Subjective Standard. If your CC&Rs do not have an objective standard, your board can subjectively determine whether a nuisance exists. From your unit, the board can listen to the noise and vibration. If the board makes a good faith determination that it does not rise to the level of a nuisance, no further action is required by the board. If you disagree with the board's decision, you still have the right to initiate legal action against your neighbor.

Corrective Action. If the board finds that the noise and vibration are excessive, it can require that the owner abate the nuisance. That might require putting the bed on rubber cushions and muffling the motor. If that is not successful, the board can require the owner to cease using the vibrating feature of the bed. If the owner refuses, the board can hold hearings and fine the owner every time she creates a nuisance. If the fines do not curb the nuisance, the board can initiate legal action against your neighbor. In addition, your board can specifically prohibit massage beds in the Rules & Regulations. To make the prohibition stronger, the membership can amend the CC&Rs to ban such beds.

NEW FHA REQUIREMENTS

QUESTION: Have you heard about new FHA requirements for HOAs effective 10/1 or 11/1 that no longer allow spot approvals--the entire association needs to go through the approval process in order for members to get FHA financing?

ANSWER: Sadly, this is correct. The effective date is 10/1. The major wigs of the National Association of Home Builders had a meeting with the new FHA Commissioner, David Stevens, to complain about this and other matters. I have not heard of any results yet. -Clifford Treese, CPCU, ARM, CIRMS, President of Association Information Services.

ANNUAL MEETING MINUTES

QUESTION: Our board secretary says that because our bylaws require us to use Robert's Rules of Order, our annual meeting minutes are approved by the board of directors at the next board meeting. I say they are approved by the membership at the next annual meeting. Who is right?

ANSWER: You are both correct. The membership normally approves the minutes at the next annual meeting. However, as provided for in section 48 of Robert’s Rules of Order, minutes that do not come up for review within a quarterly time interval may be approved by the board of directors. The benefit of allowing the board to approve the minutes is that they will be posted within thirty days of the meeting, rather than a year later.

SIGNING CONTRACTS
WITHOUT APPROVAL

QUESTION: Can a board member sign a contract before the contact has been approved by the board?

ANSWER: No, individual directors do not have the authority to sign contracts without board approval. This also applies to managers. Signing agreements without approval can create liability for the association and the signing director/manager. If a vendor reasonably relies on the agreement, then a binding contract is created even though the board has not approved it. Corp. Code §7214. If the board terminates the unauthorized agreement, the association may face litigation and the payment of damages to the vendor.

Exceptions. Emergency repairs and nominal maintenance issues are an exception. If the president or manager needs to hire a plumber to stop a flood, and an emergency restoration company to clean up the water, they should have the authority to make such arrangements without getting bids, calling a board meeting, and deliberating on the merits of the various bids. The same is true for routine repairs that fall within a dollar limit set by the board. In other words, the board can authorize the president or manager to make expenditures up to $500 (or a $1,000 or $2,000, etc.) without prior board approval, provided the expenditures are within budget and the expenses are reported to the board. The expenditure limit is set by the board and is related to the size of the association's budget.

   Sincerely yours,
 
   Azadeh "Azy" Saghian, Esq.
   Adams Kessler PLC