I apologize for the dearth of newsletters in April. I was busy with trial prep, expert testimony, serving on a panel for the State Bar, and hosting our own "Attorney Summit" where all the lawyers in our firm get together each year to review case law and discuss legal trends.
When I started receiving emails asking if I had died, I thought I better get on the ball and write a newsletter.
QUESTION: The Davis-Stirling Act allows only members to attend board meetings. Tenants, property managers, real estate agents, spouses and family members (not on title) attorneys, and other representatives cannot, and should not, attend a board meeting on behalf of a member. Can we exclude a real estate agent who wants to represent owners of rental units?
ANSWER: I need to make a small correction to your question. The Davis-Stirling Act does not prohibit non-members from attending board meetings. Rather, it's an authorizing statute which states: "Any member may attend board meetings, except when the board adjourns to, or meets solely in, executive session." (Civ. Code §4925(a).) That means members have a right to attend meetings and boards cannot exclude them.
Boards can, however, exclude non-members. In my experience, most boards allow non-member spouses and tenants to attend meetings, provided they are not disruptive. It is entirely discretionary with boards.
Realtors. The same principle applies to non-member real estate agents. If an agent wants to speak to the board on behalf of his/her landlord clients, the board can allow the agent to attend if they so choose. If it turns out the agent is doing nothing more than pushing his/her business interests or is disruptive, the person can (and should) be excluded from meetings.
RECOMMENDATION: Boards should consider adopting meeting rules to address who may attend meetings, open forum policies, meeting decorum, recording meetings, etc. If you need assistance, contact us.
POWER OF ATTORNEY
QUESTION: Does the board have the right to request a notarized copy of a power of attorney so that it may be kept on file?
ANSWER: Yes, if someone has a "power of attorney" to make decisions on behalf of an owner, the association should have a copy of the authorizing document on file.
Otherwise, they could find themselves in hot water accepting direction from a stranger regarding the affairs of an owner.
QUESTION: Our association bans pickups from parking overnight in driveways or in common areas. Parking in garages is permitted since the vehicles aren’t visible when they are in a garage. Our CC&Rs date back to the 70s and, as I understand it, things have changed in 40+ years. Can we still legally ban pickup trucks from parking in driveways and common areas overnight?
ANSWER: Yes, a lot has changed in the past 40 years--computers, cell phones, the internet, drones, recreational marijuana...and trucks. If you allow cars to park in driveways and common areas, you have to allow pickup trucks.
Case Law. This issue was addressed in a 1987 case, Bernardo Villas Management v. Black. The association had a CC&R provision that "No truck, camper, trailer, boat of any kind or other form of recreational vehicle may be parked in the development." Such restrictions were quite common and boards were obligated to enforce them.
A resident in Bernardo Villas bought a pickup which he used solely for personal transportation and parked in his carport. The board did its duty and sued the resident for violating the CC&Rs. Much to everyone's surprise, the trial court found the restriction unreasonable. Convinced the court got it wrong, the association appealed.
The court of appeal also sided with truck owners and agreed the restriction was unreasonable. The court noted that, "As times change, cultural perceptions--including society's acceptance of certain types of vehicles--also change. The pickup truck no longer has a pejorative connotation. One person's Bronco II is another's Rolls-Royce." The court added that beauty, even with cars, is in the eye of the beholder.
The next time you're on a freeway, look for pickup trucks. You will notice lots of them--Chevy Silverados, Dodge Rams, Toyota Tacomas, Ford F-150s, and scores of others of all shapes and sizes. The Ford F-150 has the distinction of being the most popular motor vehicle of all time. It has been the best-selling vehicle in the United States for over 30 years.
Pickups used as work trucks with signage, racks and tools can still be banned. Pickups used strictly for personal transportation cannot.
RECOMMENDATION: Your association is 30 years behind the times and should revise its rules. If someone mounts a legal challenge to your restriction, I have a good idea who will win that fight.
JAMIE L. HANDRICK
I am pleased to announce that attorney Jamie Handrick joined our firm.
HOA Law. Jamie brings years of solid CID-law experience to the firm. She has been in practice 17 years with the past 12 exclusively in community association law.
Jamie represents commercial, residential, and mixed-use associations throughout San Diego County. She has extensive experience in construction litigation, enforcement of governing documents, civil litigation, collections, and fair housing compliance.
Industry Activities. Jamie is active in industry organizations such as the Community Associations Institute (CAI) and the California Association of Community Managers (CACM). In addition, she conducts boot camps for new association board members and speaks at educational events.
Litigation Counsel. Before specializing in community associations, Jamie practiced eminent domain litigation where she handled high profile cases for the City of San Diego and the Metropolitan Transit Development Board. She also litigated labor and employment issues as well as general civil matters. Jamie's experience has been valuable in her evaluation of potential litigation for associations and advising boards on how best to resolve disputes before they turn into litigation.
San Diego. Jamie joins our team of lawyers in San Diego under our newest partner, Laurie Poole. Jamie will work out of our San Diego office in Mission Valley. We are very happy to have such a talented and experienced attorney in our firm.
If your association needs legal services, contact us for a proposal.
Some of you caught that I misspelled "unnecesary" two newsletters ago and appreciated my explanation that the second "s" failed to show up for work. In the next newsletter I brought more smiles by referring to "loose canons." This time, it was right spelling, wrong word.
Typo #1. Your recent newsletter, while quite informative (as usual) was a bit confusing when it referred to "loose canons." I would assume that you were not referring to questionable church teachings or misguided musical practices, but to the fear of rolling shipboard artillery in the days of wooden sailing ships when a loose cannon could be quite dangerous. Keep up the good work! -Steve T.
Typo #2. I especially laughed out loud at this: "Nut-Job? If the owner is a known nut-job (yes, they exist), it makes it difficult for boards to evaluate claims. Even loose canons occasionally hit a target." BTW, I have sent many of these newsletters to the BOD! -Cheech A
Typo #3. The "typo" tua culpa was hilarious! Well done, sir. -Erica G.
NOTE: Loosely translated from Latin, tua culpa means "it's not my fault." -Adrian
Laurie Poole #1. Congratulations on choosing Laurie Poole to join your firm. She is a great attorney--very knowledgeable and conscientious. I have known Laurie for a number of years. She assisted with restating our governing documents a couple years ago, has been our association attorney and I served with her on the CAI board of the San Diego Chapter. She is a great addition to your staff. -Carol L.
RESPONSE: With attorneys Carrie Heieck and Jamie Handrick, Laurie is building a great team of lawyers for the San Diego region. We expect to add additional lawyers and staff to her office over the course of this year.
Chinese Translations. My December newsletter regarding an association where most members spoke Chinese was published nationally by the Community Associations Institute. Following is a comment by a reader on the difference between translating and interpreting.
For your information, translation is done in writing. Interpretation is done orally. Despite that many people use translation as an action done orally, that is not correct. -Tia H.