QUESTION: Our manager attends our executive session meetings. We have a new board member who is challenging the legality of the manager's attendance. It appears to me that Davis-Stirling is silent on this issue. Are we doing anything improper?
ANSWER: It is common (and legal) for managers to attend executive session meetings.
Executive Session. Executive sessions are private board meetings involving matters of a sensitive nature. They include legal issues, formation of contracts, disciplinary hearings, personnel issues, payment plans, and foreclosure decisions.
Who May Attend. Because of their confidential nature, members do not have a right to attend executive sessions, except for their own disciplinary hearings. However, that does not mean the meetings are limited to directors only. Boards can invite others to attend, as may be appropriate.
For example, a project manager may be invited to discuss the formation of contracts with potential contractors for an upcoming construction project. Managers are commonly invited to attend to take minutes and participate in the discussions. Managers often have valuable insight and historical knowledge to help the board make prudent decisions. Moreover, they are frequently tasked with carrying out decisions made in executive session.
Exceptions. It would be appropriate for the board to exclude a manager from participating in discussions of the manager’s performance or contract renewal.
RECOMMENDATION: Boards should utilize management effectively. Oftentimes, this means including managers in more meetings, not fewer. If the cost is sensible and the association benefits from the manager’s presence, including the manager in executive sessions is a good decision.
Thank you to attorney Nate McGuire for answering this question.
QUESTION: Can a member ask board members to show proof of ownership?
ANSWER: You can ask. However, sitting directors are not required to provide proof.
Records Requests. Members are entitled to inspect certain association records. If a record is not on the list of records subject to review, there is no right to inspect it. A director’s proof of ownership (i.e., property deed) is not on the list. Even if a record is subject to inspection, the request would need to be to the association for its records, not to directors for their records. However, a quick trip to the county recorder’s office should yield the proof you seek.
Director Qualifications. Most associations’ governing documents require a person to be an owner to serve on the board. Qualifications should be confirmed during the nomination process before ballots are mailed. Sometimes confirmation is difficult or circumstances change and a director’s lack of qualification comes to light later.
Politics. While a director is not required to provide proof of ownership, political pressure may do the trick. Or not. A certain POTUS declining to turn over taxes comes to mind.
RECOMMENDATION: If you believe a director is not qualified, you can ask the board to make a determination. If it turns out a director is not qualified, the board may declare vacant the seat of any director who ceases to meet qualifications that were in effect at the beginning of that director's term of office.
Thank you to attorney Nate McGuire for answering this question.
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Kudos #1. So glad you and the newsletter were resurrected--you were both missed! -Trudy M.
Kudos #2. I am certain I join ALL of your readers in rejoicing that you are still with us!!! -FGL
Kudos #3. Oh goodness, please don’t die; we love you and need you around. -Elizabeth B.
Kudos #4. I always find your newsletter fascinating and informative--not only entertaining. Does anyone ever unsubscribe? -Nancy H.
RESPONSE: I once had someone unsubscribe because they were offended by my humor. They thought serving on the board was deadly serious and didn't appreciate my poking fun. I had a drill instructor like that. I didn't dare crack a smile the entire 13 weeks I was in boot camp. As soon as I graduated though...
Hiring Attorneys. It seems like every newsletter issue announces still another attorney joining your firm. If so many attorneys are needed to help manage associations, then something must be going wrong. -Joseph A.
RESPONSE: If all we we did was help manage associations, that wouldn't be so bad. It's all those messy legal issues that keep us awake at night. If the legislature would take a 5-year vacation and then renew it every five years, we wouldn't need so many lawyers. Do you know any good lawyers you can send my way? We are hiring.
Realtors. If a member of the association is a Realtor and is on the board of directors, what then? What happens if board members allow the Realtor to press his business agenda and the board sits silent, what then? Replace the whole board? Or, as you have suggested in the past, we, the members of the association, should all move? -Paul S.
RESPONSE: I wouldn't move just yet. Not all real estate agents are bad and some make good board members. If a real estate agent misbehaves and fellow directors allow it, you have recourse. Here are ten options for dealing with bad boards. If you decide to move, I bet your Realtor/director would be happy to help.
Trucks #1. Most garages will likely not accommodate king cabs or crew cab pickups that are popular for personal transportation. A king cab has a half-door and a crew cab has a full-sized door. Beds are 6-foot and 8-foot. I'm not even going to discuss the dually pickups... -John A.
Trucks #2. Our CC&Rs prohibit trucks larger than 3/4 ton. Our CC&Rs were rewritten about 3 years ago. I made every attempt to educate our board that 1-ton trucks are daily driven in today's society. They voted to keep the restriction from 1983 intact. Does this current information about trucks allow our community to drive a 1-ton truck? -Tony M.
RESPONSE: If you challenged the reasonableness of prohibiting 1-ton pickups, crew cab pickups, or dually pickups, I suspect the courts would uphold the association's restrictions. Since the Bernardo Villas decision, the Supreme Court declared in Nahrstedt v. Lakeside Village that CC&Rs must be presumed reasonable and deferred to by courts. The burden is on the person challenging the restriction to persuade the court that the restriction is (i) arbitrary, (ii) imposes burdens on the use of lands it affects that substantially outweighs the restriction's benefits to the development's residents, or (iii) violates a fundamental public policy. That's not easy to do.
Trucks #3. Any rules/laws that you know of regarding how many vehicles you can park around your property? We have private streets and one house has two vehicles in the garage, 2 to 3 in the driveway, 2 to 3 more out front, and he often parks a couple around the neighborhood. I believe he has seven vehicles. He is the only one who drives them. -Michele G.
RESPONSE: You should check local ordinances to see if the city has any restrictions. In addition, check your CC&Rs and rules. I bet you already have restrictions in place. If not, your board can adopt rules limiting the number of vehicles and where they can be parked. Since your association owns the streets, it has the right to regulate them.
Trucks #4. My association started putting fairly big warning stickers on car windows when someone parks where they shouldn't. I understand they are very difficult to remove. Isn't it illegal to put a sticker like that on a car window? Or is it only prohibited if placed on the windshield? -Alice O.
RESPONSE: I could not find any laws prohibiting the stickers. I checked the internet and found a number of companies doing a brisk business in them.
Associations that use stickers find them quite effective in discouraging parking violations.
There are sufficient problems with towing that I favor the use of stickers. People tend to go ballistic and sue or threaten to sue when their car gets towed. A sticker costs only pennies and gets a violator's attention without triggering lawsuits.
If you slip a paper notice under a under windshield wiper, violators like to throw them away and claim no notice was ever placed on their car, or the notice blew away, or was removed by a passerby, or dissolved in the rain, or whatever. That does not happen when a large, bright-orange notice is stuck to the driver's window.
The stickers are effective deterrents because they are difficult to remove. You need a razor scraper and soapy water to remove them. Generally, that happens only once. Thereafter, people are careful not to park illegally.
RECOMMENDATION: I don't favor using stickers on a first violation if it can be avoided. If possible, they should be kept in reserve for repeat violators. This will depend on the size of the association and the logistics involved. The larger the development and the frequency of violations will impact the procedures followed.