QUESTION: A homeowner keeps sending letters to board members' homes and every letter says it is “confidential to the board” and the board can’t share it with our management company. Does this homeowner have a right to demand that her communications (which ought to go to the manager) be kept private?
ANSWER: If the board decides the information in the letter needs to be shared with management, it can do so. When carrying out their duties, directors must balance the general welfare of the community against the interests of the individual. (Cohen v. Kite Hill.) That might mean disclosing the information.
Legal Counsel. The same is true with the association's legal counsel. If a director shares something with the attorney and tells him/her not to share it with the other directors, the attorney is not obligated to keep it confidential. As corporate counsel to the association, an attorney does not represent individual directors or owners. An association's legal counsel represents the association as a corporate entity.
In representing an organization, a member [attorney] shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement. (State Bar Rules of Professional Conduct; Rule 3-600(A).)
When a director starts a conversation with "I have something confidential to tell you that cannot be shared with the other directors," I have to stop them and explain my obligations to the corporation may require that I share it with other directors. At that point, the director can decide whether to proceed.
Misconduct. Similarly for boards, if the owner's letters allege misconduct by the management company, the board has an obligation to investigate the claims. The investigation may involve talking to the management company about the allegations.
Nut-Job? If the owner is a known nut-job (yes, they exist), it makes it difficult for boards to evaluate claims. Even loose cannons occasionally hit a target. Boards need to review each letter to see if there is any substance buried in all the craziness. If it's nothing more than an obsession with a particular issue that has already been investigated but gets repeated endlessly, a letter from the association's legal counsel to the overwrought owner may be warranted.
RECOMMENDATION: The owner should be told (in writing) that the board will not keep her letters confidential if the directors feel the information and its source should be disclosed. You can tell her that all letters dealing with routine matters will automatically be sent to the management company.
QUESTION: Our HOA is in the process of enacting election rules that disqualifies anyone who ever threatened to sue the association. I am going door to door to get petition signatures opposing the rule. I'm told if I do, I am subject to fines under the prohibition against soliciting.
ANSWER: Disqualifying anyone who ever threatened to sue the association is a bit much. I don't believe a court would find that reasonable. Besides, the association could end up with no one left to serve on the board.
Active Litigation. I am in favor of temporarily disqualifying anyone who is in active litigation against the association and/or its directors. It avoids conflicts of interest that inevitably arise when the plaintiff is simultaneously suing the association and voting on board issues. It also avoids the awkwardness of directors serving on the board with the plaintiff. Once the litigation is over, the person can once again be eligible to serve on the board.
Solicitation. As for penalizing you for circulating a petition, that would run afoul of the Davis-Stirling Act. A change in the Act went into effect January 1 that allows members to canvass and petition members. (Civ. Code §4515(b)(4).) In particular, the association cannot prohibit political activities.
Assessment #1. My association is the one in your column about the special assessment. The assessment of $11,500 was for a city-mandated earthquake retrofit. -Anon
RESPONSE: The retrofit qualifies as an emergency special assessment. It is an extraordinary expense necessary to repair the common areas where a threat to personal safety is discovered. (Civ. Code §5610(b).) The monies would not have been in the budget or the reserves and must be raised via a special assessment.
This is not something where the board can say to the city, "We cannot comply with your order because the members refuse to fund it." The city will impose fines and take other actions that could be quite unpleasant. If the city red-tags the buildings, everyone will be forced to move out until the work is done.
Assessment #2. Regarding the $12,000 "unnecessary" assessment, I'd like to know why the person thought it was unnecessary. It is possible the HOA is not communicating as well as it could to owners. -Tony V.
RESPONSE: Poor communication is a possibility. Another explanation is that some people are contrary by nature. It does not matter how valid the assessment, they are against it.
Assessment #3. A membership vote on a special assessment must be done by secret ballot. How can this be done, when they need a quorum, which is a meeting with people in attendance? -Meri N.
RESPONSE: Ballots count toward quorum, the same as if the person attended the meeting. (Civ. Code §5115(b).)
Spell Check. For the first time I can recall in the years I have been receiving your informative weekly newsletter I see a misspelling in the titled subject: "Unnecesary"! What happened? -Sharon M.
RESPONSE: The second "s" didn't show up for work. It turns out he doesn't work on Sundays.
Laurie Poole. Congratulations to Adams Stirling and Laurie Poole on the addition of Laurie to your fine cast of attorneys. An excellent move on both your parts! Laurie is one of my favorite attorneys: good-natured, no-nonsense and knowledgeable. Well done! -Sharron B.
RESPONSE: Thank you! Yours is one of many congratulatory notes we received. Laurie is an exceptionally well-qualified HOA attorney and we are pleased to have her as a partner.
Renting Rooms. One of my associations meets at the senior center close to the complex. The fee is $100 for 2 hours. Another association meets in the community room at a local church and there is a charitable donation of $40 for approx 2 hours. -Joe G.