DATING DIRECTORS

QUESTION: Two of our residents started dating before they ran for the board. They were voted in, one as president the other as secretary. Is this okay or does one have to resign?

ANSWER. Neither one needs to resign; they are allowed to date. It's possible their judgment may be clouded from time to time but there are no inherent conflicts of interest in their relationship.

BAD DIRECTORS

QUESTION: There are many poor to bad board members who have a cavalier attitude regarding what they do as a director and the effect it has on owners. Do you have an opinion regarding this?

ANSWER: True, there are many bad directors with cavalier attitudes--I've suffered through my share of them. But for every bad director, there are ten good directors who receive little or no credit for their contribution to the association. Truly bad directors make everyone miserable and there is very little that can be done about them except for the board to censure them and the membership to remove them through a recall. Perhaps the only consolation is that bad directors can actually be removed from office, unlike bad government bureaucrats with cavalier attitudes.

FALLING BRANCHES

QUESTION: Our association has a tree limb extending into the back yard of a neighboring property. If it breaks and causes damage are we liable?

ANSWER: As a rule, owners are responsible for injury caused to others by their want of ordinary care or skill in the management of their property. If the tree belongs to the association, the board is responsible for properly caring for the tree so as to prevent any foreseeable damage to the neighboring property.

Negligence. If the tree has dead or dying branches and the board was warned they needed pruning, and the board fails or refuses to do so, and a dead limb crashes into the neighbor's house, you will likely be liable. If there is nothing wrong with the tree, you are not required to remove a healthy limb just because your neighbor dislikes it. Even so, your neighbor may treat the overhanging limb as nuisance.

Nuisance. Even though the neighboring property has sustained no injury by the overhanging limb, branches and roots that intrude onto the property of another are considered a nuisance and your neighbor may abate the nuisance by cutting the offending branches and roots at the boundary line--so long as he acts reasonably not to seriously damage your tree. (Civil Code §3346)

Falling Leaves. Your neighbor might also be unhappy about falling leaves from your tree. If so, he cannot demand that you control or clean up the leaves, so long as you reasonably maintain your tree.

ABSTENTIONS

Feedback. If a board is using Roberts Rules of Order, they usually call for a president to not vote except to make or break a tie. Since it takes 50% + 1 to pass. A tie means the motion fails. An abstention would have the same affect. -Stephen F.

COMMENT. You are correct. However, unless an association's bylaws or CC&Rs require it, boards are not obligated to follow Robert's Rules of Order (or any other parliamentary system) for their board meetings. The Davis-Stirling Act calls for the adoption of a parliamentary system only for membership meetings. Civil Code §1363(d)

Feedback #2. In a four-unit condominium (four votes total), if two of the four board members vote "yes" on a motion and two abstain, does the motion pass?

ANSWER: The motion fails. That is why there should always be an odd number of directors--it's too easy for an even numbered board to deadlock. You should amend your documents to reduce the number of directors to three.

PLAYGROUND RECYCLED RUBBER

The Environmental Protection Agency (EPA) is having second thoughts about its endorsement of the use of shredded tires as a substitute for sand in playground tot lots. The concern is that shredded tires could contain carcinogens or other chemicals that could be a hazard with repeated contact with children's skin.

Association boards may want to delay the purchase of such materials pending the EPA's decision. If the EPA reverses itself and requires the removal of shredded tire materials, the cost could be significant. The results of a long-term study are expected within the month. Thank you to manager John Kevin Dillon for alerting me to this issue.

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