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  California's Leader in Community Association Law February 21, 2017
My newsletter is a little late because I am writing from the Lodge in Black Rapids located 130 miles outside of Fairbanks, Alaska.

Judge Stirling an I are dog sledding, watching the aurora borealis (northern lights) and enjoying balmy temperatures of 30 degrees below zero.

It's hard to type while wearing mittens so there will no newsletter next week. I will start writing again once I'm back in California and thaw out. -Adrian


QUITTERS

QUESTION: Are volunteers allowed to run for the 2017 board of directors if they "quit" by not attending 75% of the 2016 meetings? Also, we have trouble getting volunteers because most members don't want to be on the board, yet complain endlessly.

ANSWER: Complaining endlessly seems to be part of the human condition. Finding volunteers is also problematic and Sacramento makes it a little harder each year with excessive regulation.

Bylaws. Unless your bylaws have a provision disqualifying someone who was elected but refused to serve, your quitter can run, get elected, and refuse to serve endlessly. At some point, the membership will catch on and vote for someone else (assuming you can find someone else).

Amendments. In the meantime, your association should amend its bylaws to add director qualifications, eliminate cumulative voting, add election by acclamation, and eliminate quorum requirements for the election of directors. It will make your elections easier and help filter out problem members from getting on your boards.

RECOMMENDATION: If you can't find anyone to run for the board, announce that you are raising dues by 20% and imposing a 5% special assessment.

SAFETY AND SECURITY
COMMITTEE


QUESTION: Recently, we've seen an increase in vagrancies, home & car break-ins, and trespassing. I'm trying to organize a safety committee, one that would oversee risk concerns and advise the board. Unfortunately, our management company said that due to liabilities we could not form a safety committee. I realize this is a touchy subject, but would greatly appreciate any light you could shed on this matter.

ANSWER: I have great respect for mangers and management companies but legal advice is not a service they should be offering. Attorneys are generally better at that sort of thing.

Vagrants. More than 20% of the nation’s homeless live in California. Despite all the social spending from Sacramento (or because of it), the problem seems to be getting worse. In recent years, California has seen a dramatic increase in property crimes while Texas, Illinois, New York and Florida have seen decreases. As a result, many California cities have been adopting ordinances against sleeping in cars, camping in public places, panhandling, and urinating in public.

Safety Committee. The ordinances are only as good as the enforcement. In addition to appealing to the police for help, associations should tighten their security policies and procedures. Many think that forming a safety committee creates unacceptable levels of liability for the association--I disagree. An unsafe community where the board does nothing creates more liability than forming a committee that makes safe/security recommendations.

Insurance. Your association's D&O insurance typically covers committees of the board. A safety committee can inventory potential problems and make recommendations regarding lighting, security cameras, and so on. Provided the board acts on those recommendations, it makes the community safer and protects the association from potential litigation. Where HOAs run into problems is when they arm their committees. You may have trouble getting D&O insurance if you arm your volunteers with 45 caliber hand guns.

RECOMMENDATION: If your community is suffering from vagrancies, home and car break-ins, and trespassing, it's time for the board to step up and do something. They should either form a committee to survey the development and make recommendations. Or, hire a security consultant to do it. Then, implement the recommendations.

RECYCLED WATER

QUESTION
: You've got a great website for reviewing the Davis-Stirling Act. However, I can't find anything about how Davis-Stirling applies to HOAs that use recycled water. Ours is responsible for maintaining front yards. We converted the irrigation to recycled water. Does this exempt us from the Davis-Stirling Act?

ANSWER: If you can't find what you need in the Main Index of the website, use the website's search feature. I added "Google Search" to the website. It costs me a little extra each year but it gives you a dedicated Google search engine exclusive to the Davis-Stirling website. You can find it in the upper right of the website.



Drought Emergency. Converting to recycled water does not exempt you from the Davis-Stirling Act. It does, however, exempts you from the "state of emergency" provision declared by the governor when it comes to watering lawns. It means you can impose fines against owners who fail to water their lawns. (Civ. Code §4735(c).)

Moot. In your case, the exemption is meaningless since your HOA waters the lawns. Even so, switching to recycled water is a smart move since you can keep up lawns without incurring significant water bills. Also, the way the Oroville dam is dumping water to avoid a collapse, it looks like the drought emergency may be over.

FEEDBACK

Children #1. My kids grew up surrounded by lakes, streams, and irrigation ditches in Wyoming. In an area where ponds and streams are common, parents learn to watch their kids around water and kids learn to be careful. In So. California, it seems like many feel the need to fence them off.  If you fence off a pond then fail to maintain the fence does it open you up to more liability? -Daren W.

RESPONSE: Many boards are so risk averse that fences seem to be the only way to reduce liability. Insurance companies have learned that little ones who drown in swimming pools can be very costly. Hence, fences around pools. I grew up in S. Dakota and Missouri and played in streams on my folks' property. I survived. Californians are so litigious that boards are naturally paranoid. There should be a happy medium where rules and signage should be sufficient. Can boards fence off an amenity? Yes. If they don't maintain the fence, can the association be liable? Yes. Boards should talk to legal counsel for a common sense way to deal with the problem.

Children #2. I am sure there are many associations out there that need to address the issue of young kids in the association's swimming pool. How specifically would you address this issue without using the word "adult supervision." Would you still be able to use an age requirement for these young kids? How would you word it? Would you be able to say, "Anyone 13 and under need the supervision of a competent swimmer?" Thanks. -Tim S.

RESPONSE: That works...at least until the DFEH says it doesn't.

Children #3. One Association I managed had a lake. The city required that a fence be put around it to keep ANYONE from going in the lake. It seems that a fence be put around the stream as a safety issue to prevent small tikes from drowning. -Joe G.

RESPONSE: Depending on the layout of your development, that could be costly and impractical (and unsightly). Rules and signage may be your only option.

Adrian J. Adams, Esq.








Adrian J. Adams, Esq.
ADAMS | STIRLING PLC

We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.





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