RUNNING FOR
PRESIDENT
QUESTION:
During the nomination phase of an election should a nominee indicate the role
they wish to serve, such as president, treasurer or secretary? Is the officer
designation decided by the number of votes highest to lowest or by agreement?
ANSWER: Unless
your governing documents state otherwise, candidates cannot run for a particular
office. Typically, the membership elects directors, not officers. Once
elected to the board,
directors decide among themselves which office each person will hold.
Therefore, it does not matter that a person campaigns for President and gets the
highest number of membership votes. He/she does not have a "right" to be
President. The other directors might make the person a "director at large."
HOW MANY
NOMINATIONS?
QUESTION: Is the nominee process limited to just one submission per owner?
ANSWER:
No, but there is a limit on the number of nominations an owner can make. "When
more than one person is to be elected to . . . a board of directors . . . no one
may nominate more than one person for the office, if an objection is made, until
every member wishing to nominate has had an opportunity to do so. In no event
may a member nominate more persons than there are places to fill." (Robert's
Rules of Order, 10th Edition,
'46,
p. 418.) In addition, the
nominees should accept their nomination before being listed as a candidate on the
ballot. It should be noted that candidates can
nominate themselves to run for the board.
BROWN ACT
QUESTION.
A non-lawyer advised our board
that the Brown Act supersedes the Davis-Stirling Act. Is that true?
ANSWER:
No, it's not true. The Brown Act regulates the meetings of public legislative
bodies and local public agencies. It does not apply to private community
associations. The legislature could have included homeowners associations in the
Brown Act but it didn't. Instead, it created a less complicated "Open Meetings
Act" that applies specifically to homeowners associations.
Civil Code 1363.05.
AMENDMENT TO
RESTRICT
DUES INCREASES
QUESTION: We have a new neighbor who is causing huge problems. His newest
campaign is to modify the CC&Rs to include the following: "Any assessment and
any increase in the dues in excess of the Consumer Price Index (CPI) must be
approved by 51% of the homeowners."
ANSWER:
His efforts are understandable but misguided. Even if he is successful, the
amendment will be void. Assessment increases and voting requirements are set by
statute. Regardless of anything to the contrary in the governing documents,
boards may increase regular assessments up to 20% and levy special assessments
up to 5% without membership approval. Anything more requires owner approval,
which is defined as approval by a majority of votes at a meeting with
more than 50% of the
owners in attendance.Civil Code 1366(b).
LAW STUDENT PRESIDENT
QUESTION:
Our board president is a law student who thinks he knows everything about
everything. We want legal advice about our CC&Rs but he opposes it since he
thinks his advice is sterling. What do we do in a case like this?
ANSWER:
There is an old adage that you get what you pay for. Relying on a lawyer-to-be for legal work
certainly saves money.
However, if problems arise because the board relied on his unauthorized
practice of law, the costs could easily exceed the monies saved. If you're really
tight on money, let your law student do all the legal research and put his
opinions in writing for review by your association's legal counsel. If counsel signs off
on his opinions, you save money. If he doesn't . . .
AMENDING
CC&Rs VIA
THE COURTS
QUESTION:
Our CC&Rs require 2/3 approval to make any changes. The Davis-Stirling Act
requires 50% + 1. Does that override the CC&Rs? If so, what are the procedures
for changes based on the Act?
ANSWER:
The provision in the Davis-Stirling Act you refer to may be used if you
amend/restate your CC&Rs and cannot reach the 2/3 approval required by your
CC&Rs. If more than 50% of the membership approve the changes and you meet
other conditions required by the statute, your association's attorney can file a petition
with the court for judicial approval. Although no attorney can guarantee an outcome, it has been
our experience that most petitions are granted.
NEW FEDERAL
LEAD PAINT LAW
On
April 22, 2010, a new federal law takes effect which directly affects residences
and common areas in homeowners associations built before 1978. It is the EPA
Lead Based Paint Renovation, Repair and Painting Program Rule. To find out
more about it (and the large potential fines for violators), read the latest
article in Kessler’s Condo
Court.