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POTENTIAL
BUYERS
AT BOARD MEETINGS
 QUESTION: Can a potential buyer of a
unit attend a board meeting?
ANSWER:
Potential buyers don’t have a legal right to attend. Under the Open Meeting Act,
such rights are reserved to
members. However, the buyer may attend with the board’s
permission. Most boards have no objection provided the person is not disruptive.
DELINQUENT
DIRECTOR
QUESTION: Can a member run for the board
if he is over 120 days overdue on
his monthly assessments?
ANSWER:
Unless your bylaws require that a candidate be in
good standing, delinquent owners can run for the board even if they are in
foreclosure. To avoid this situation, associations often amend their
bylaws to require
candidate qualifications. Your board should consider doing the same.
CANDIDATE
SUING THE BOARD
 QUESTION: Can an owner run for the board
when she is suing the board? Can we prevent her from running due to the current chaos she is causing both
the board and the association?
ANSWER:
Just as with delinquent owners described above, your
governing documents control. Because of the disruption caused by
litigation and the conflicts of interest it creates for a sitting director to be
suing the association, I include a requirement in bylaws that a director must
not be a party in any legal proceeding against the association or its officers
or directors. Absent this restriction, you cannot prevent someone from serving
on the board who is also suing the board. However, if she is elected, the board
can require that she
recuse herself from any participation in matters related to the litigation.
APPOINTMENT
OF A DIRECTOR
IN EXECUTIVE SESSION
QUESTION: We appointed a new director in
executive session after a resignation. We did not ask the
membership for volunteers as our management company had advised. Was this
the proper procedure?
ANSWER:
Unless your governing documents state otherwise, the board is not required to
ask the membership for volunteers before appointing someone to fill a vacant
seat. The appointment of a director in executive session, however, was improper.
The appointment does not fall into any of the
approved categories of business for executive session. The appointment
should have been done in open session. The board can correct its misstep by
reappointing the person in the board's next open meeting. It needs to be on the
meeting's
agenda.
NOTICE OF MEETING
VIA CLOSED CIRCUIT TV
 QUESTION: Can the notice of a monthly
board meeting and the meeting agenda be given exclusively
on closed circuit TV?
ANSWER:
Electronic notice of meetings, whether by email, website postings or closed circuit TV, is not
an authorized means for giving notice unless the recipient of the notice has
agreed to that particular means of delivery.
Civil Code 1350.7(b)(3). The agreement must be consistent with the
conditions described in
Corporations Code 20. With a small associations, you can probably get
everyone's consent. For large associations, that is unlikely. As a result, most
associations will be required to continue giving notice to all owners by posting
notice in a prominent place in the common areas.
Civil Code 1363.05(f). Even so, you should supplement the posted notice with electronic notice
such as closed circuit TV, email and/or website postings whenever possible.
REQUIREMENTS
FOR A
DAVIS-STIRLING ASSOCIATION
QUESTION: I live in a development of single-family homes that were
built in the 1960s and our CC&Rs have not been changed in almost 50
years. We have no common areas but the board does have the power to lien property. Because our HOA was formed before Davis-Stirling was
passed, our board says we are not governed by the Davis-Stirling Act. Is that
true?
ANSWER:
That may not be true. It
does not matter that your association was formed prior to the passage of the
Davis-Stirling Act. As long as your development meets the definition of a common
interest development, you are covered by the Act. In this case, your association
already meets one of the requirements of a common interest development--the
power to collect assessments by means of lien and foreclosure.
Civil Code 1351(k)(2). The other requirement, common areas, can be met
through mutual or reciprocal easement rights.
Civil Code 1351(b). Your board should have an attorney review your documents
and prepare an opinion.
FEEDBACK
 Free
Ride. I read Tina's article re Foreclosure and Right of Redemption. We
recently foreclosed on 2 residences and are now in the 90-day redemption periods on both.
You stated
that owners get a "free ride" during the 90-day period. I refer you to CCP
Sect. 729.090 which gives the purchaser certain rights to collect from those in
possession for the "value of the use and occupation of the property" (i.e.
rent). -Joel C.
RESPONSE:
You are right about the association's right to rent. I should have added the word “effectively” to free ride
since chasing the person for the 3 months of rent is usually a lost cause. I am
not aware of any associations who have successfully pursued a foreclosed owner
for rent. Maybe some readers can send in their experience with this issue. -Tina
Wang, Esq.
Disagreement. At our last board meeting,
our attorney stated that the Davis-Stirling website was only 75% accurate. As a
result it was very lucrative for him. -Robert J.
RESPONSE:
Your attorney probably did not mean to imply that he personally was 100% right
100% of the time. Since the law is not always clear, there is legitimate room
for disagreement. Not even judges always agree on what the law means, which accounts
for reversals in the Court of Appeals, followed by more reversals at the Supreme
Court level. As a result, it is expected that your attorney would disagree with
some of the information on the website. Your board should follow his advice unless it has a good faith
belief that his advice is incorrect. -Adrian Adams
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