newsletter is a little late because I am writing from the Lodge in
Black Rapids located 130 miles outside of Fairbanks, Alaska.
Stirling an I are dog sledding, watching the aurora borealis (northern
lights) and enjoying balmy temperatures of 30 degrees below zero.
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
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.
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.
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
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.
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.
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
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.
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.
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
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).)
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.
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.
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
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.
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.
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.
ADAMS | STIRLING PLC
We are friendly lawyers. For quality legal service, boards should call (800) 464-2817 or email us.