MAKE BUYERS
PAY?
QUESTION:
Can we amend our CC&Rs to
state that a purchaser of a unit must pay delinquent assessment from prior owners?
ANSWER:
By statute and case law, the buyer of a property is not personally liable for
the delinquent assessments of prior owners.
Civil Code 1466,
Mountain Home v. Pine Mountain. If you want to increase the likelihood of getting paid, you
should record a lien against the property for the delinquent amounts. That gives
your association its best protection against loss.
NOMINATING
COMMITTEES
QUESTION: Our bylaws require a
nominating committee before we have an election. However, our management company
said we did not have to follow that provision in our bylaws and do not need a nominating
committee. Is the management company correct?
ANSWER: Your management company is correct. Nominating committees were effectively
done away with by the election procedures in the Davis-Stirling Act.
Traditionally, nominating committees solicited and screened candidates to serve on the
board. If the committee did not deem a candidate "worthy," the person could not
run for the board even if he/she met the qualifications in the governing
documents.
Now,
qualified candidates can
nominate themselves to run for the board regardless of anything a committee might say or do.
NOTICE OF MEETING
EXCLUSIVELY
VIA WEBSITE
QUESTION: Our association recently
set up a website. The only manner it now gives notice of board
meetings is by posting them on the website. I do not think this is permissible. Am
I correct?
ANSWER:
You might be correct. To use the website as the exclusive means of delivering notices,
the association must have written unrevoked consents from all members. Even
then, the association is still required to give a separate
notice that information has been posted on the website so members know
to check the website for the notice. For more information see
electronic notice requirements.
PLANTERS ON
BALCONIES
QUESTION:
Can the board prohibit
planters on exclusive use decks, to protect them from damage from leaks and
weight? Can the board adopt rules rather than change the CC&Rs?
ANSWER:
Yes, boards can adopt reasonable rules to protect decks from
damage, including limits
on the size and number of potted plants and prohibitions against planters. Even though
condominium balconies are
for the exclusive use of the unit to which they are attached, they are still
common area structures. Boards can regulate balconies without amending the
CC&Rs, provided the rules adopted do not contradict the CC&Rs.
Balconies on homes in
PUDs would be subject to less regulation since they are not common area
structures.
ELECTION
VIOLATION?
QUESTION: We had our management company representative and a member of the
association (not a candidate for office) act as independent inspectors. That
shouldn't be in conflict with the Civil Code, should it?
ANSWER:
Provided your Election Rules allow it, your management company can serve as an Inspector. Association members can also serve as Inspectors,
provided they are not members of
the board or candidates for the board or related to a
member of the board.
Civil Code §1363.03(c)(2).
Two Inspectors.
Using two Inspectors, however, is a violation. The
statute calls for one or three inspectors so as to avoid a deadlock in the event a
decision needs to be made (such as a challenge to voter's eligibility).
FORMED IN THE
1970s
QUESTION: Quick question, since our HOA was formed in the 1970s, our bylaws are the
only code we go by, right?
ANSWER:
No, not right.
Your date of formation has nothing to do with whether or not your association is
subject to the Davis-Stirling Act. It depends on whether your development meets
the definition of a common interest development.
Civil Code §1351. Moreover, your association could also be subject to the Corporations Code, Health
& Safety Codes, Labor Codes, and so on. Your board should seek legal counsel.
RECALLED
DIRECTORS
QUESTION:
Can recalled directors be prohibited from becoming directors again?
ANSWER:
Unless your governing documents state otherwise, recalled directors can
immediately run for the newly vacated seats. However, the association could
amend its bylaws to require recalled directors to remain off the board for a
specified period of time. Such a restriction, however, could have unintended
consequences.
Unintended Consequences. Sometimes apathy and misinformation
can result in good directors being recalled by a small number of owners with
personal agendas. Once the recall occurs, the
membership may discover that the new directors are far worse than the recalled
directors. If your bylaws imposed restrictions on recalled directors, it would prevent the membership from
putting the good directors back on the board. Another problem is that HOAs with cumulative
voting sometimes need to recall an entire board to remove one bad director.
Restricting recalled directors would make good directors ineligible along with
the actual target of the recall.
FEEDBACK
Illogical
FHA. I’ve brought the FHA issue up to all my elected officials. I don’t
think they grasp the illogical requirement they have placed on condo
associations in regard to qualifying for FHA financing. They make it tough for
first time buyers, less competition for cash buyers (investors) who bring in
more renters, continuously going the wrong way with the ratios and for the
betterment of the condo communities. -Len M., OC Realtor
RESPONSE:
There does not appear to be any adults running the FHA.
Their constantly changing and poorly thought-out requirements will only prolong the recession in the condo industry.