SB 1265 Train Wreck

California's Leader in Community Association Law

June 3, 2018

ELECTION LEGISLATION
A TRAIN WRECK

QUESTION: I read SB 1265. What prompted such a complex bill? HOAs as "quasi-governmental entities?" Retaining signed envelopes of voter ballots? Seems like overkill to me. Our association has had annual elections without difficulty, mishaps or problems. It is hard enough to get people to run for the board without telling them they will be operating in a "quasi-governmental" atmosphere. What do you think of the bill?

ANSWER: The bill is a train wreck. It voids director qualifications adopted by associations. That means a felon sex offender who is suing his association to stop foreclosure of his unit can be elected to the board of directors to serve alongside his spouse and adult son on a five-director board.

This overreaching piece of legislation was authored by Sen. Bob Wieckowski (Freemont) and affects every association in the state. For some unfathomable reason, Sen. Wiechowski believes owners not in good standing should serve on association boards of directors.

Identity Theft. In addition to voiding director qualifications, the bill allows members to inspect and copy signed envelopes. Members concerned about identity theft now have to be concerned about their signatures being copied and posted on the internet. It also unnecessarily exposes members to breaches of their privacy.

RECOMMENDATION: This bill is awful. SB 1265 will be heard in the Assembly Housing and Community Development Committee most likely on Wednesday, June 13. Please send a letter or email to Chairman David Chiu urging his Committee to oppose the bill. You can send your emails to [email protected]. Our office will bundle and deliver them to the Committee.

MY SECONDARY ADDRESS:
@EMAIL ME?

QUESTION: I’m an owner who lives part of the year in Europe. I requested my HOA mail all notices to my secondary address, my email. The board told me they aren’t bound to send notices and disclosures via email. Isn’t my HOA obligated to mail notices to my designated secondary address, even if it’s an email?

ANSWER: You are correct. Civil Code §4040(b) requires an association, upon request from a member, to provide notices to the “secondary address identified in the request.” The Civil Code does not specify what type of address must be provided, so it stands to reason an owner can designate an email address in lieu of a physical address.

Email Notice is Allowed. Civil Code §4040 is clear if any part of the Davis-Stirling Act requires individual notice, an association can accomplish delivery by mail (U.S. or overnight) or by email, fax, or other electronic means so long as the owner consented in writing to receive the notice through the particular method. If a request to use an email as a secondary address is in writing, it is valid for individual notices to be sent.

Types of Notices. Associations are obligated to provide owners the following records, including by email: annual budget report, the annual policy statement, notices of regular and special assessments, and notices of foreclosure. Not all notices must be sent via individual delivery. Associations can deliver the following types of records through general delivery (which can include posting a physical copy of it at a designated location in the association): board meeting notices, rule changes, election and vote tabulation results, and use of reserve funds.

RECOMMENDATION: Civil Code §4045 permits owners to request all general notices also be delivered to them by individual delivery. Submit your request in writing to designate your email as your secondary address (make sure it complies with all the requirements) and also request individual delivery of all general notices so you can continue to be kept abreast while you’re abroad.

Thank you to partner Jasmine Hale in our Los Angeles office for this article.

ASSOCIATION BANS

BIBLE STUDY

Several years ago a reader asked about banning Bible studies in the clubhouse. I responded it would be discriminatory and the restriction would likely be struck down if challenged.

Clubhouse Activities. Last week, a 55+ homeowners association settled a lawsuit over this issue. The association had allowed members to reserve rooms at its 8,000 square-foot clubhouse for activities such as book clubs, card games, Bible studies, arts & crafts, etc. They had over 30 clubs and interest groups using their common area facilities.

Atheist Objects. An atheist objected to Bible studies in the clubhouse and threatened to sue the association. In response, the board banned all religious or faith-based groups from using the common areas.

Litigation Erupts. Affected members contacted the Pacific Justice Institute, a nonprofit legal organization that defends religious freedoms and civil liberties. They sued the association for violation of the Unruh Civil Rights Act and the Fair Employment and Housing Act for denying access to the common areas on the basis of religion. In addition to injunctive relief, members sought punitive damages against the association and its directors.

Settlement. The association sought to have the complaint dismissed or at least dismiss punitive damages. The judge refused and trial was scheduled for this month. The parties went into mediation and the association agreed to a number of concessions, including giving faith-based groups equal access to common area facilities.

RECOMMENDATION: Associations cannot engage in discrimination and expect a successful outcome. State and federal laws are quite clear in their prohibition of discrimination. Boards should have legal counsel review their policies to ensure they are non-discriminatory. In addition, boards should adopt an anti-harassment policy.

Stickers #1. Twenty years ago the local chamber of commerce was looking for a way to ban window flyers as they created a lot of trash in parking lots. The solution was ADA. The ordinance (Los Angeles) bans putting anything on the front or rear window of a vehicle as it may obstruct the view of the driver and disabled person may not be able to remove them. It does permit such items to be put on the side windows. I think this would apply to those stickers. -James S.

Stickers #2. It can be very dangerous if the sticker is stuck to the center of the front windshield and blocks the view of the driver. Several years ago, the owner of a stickered car windshield, wanted to file a lawsuit against the HOA for blocking his ability to drive his car in a safe manner. He had no way to get the sticker off the glass and thus could not drive his car safely. It caused financial loss. He wanted money to pay for his taxi and time lost. The HOA now puts stickers in the lower left hand corner of both the windshield and driver's side door window. Also don’t damage car paint....What would you do..... pay or not? - Nancy S. Love your newsletters.

RESPONSE: If an association were negligent in how it applied the sticker and damaged an owner's car, I have a good idea how a court would rule. I recommend against putting stickers on the front or rear windshields. They should be put on the driver's side door window--or better yet, driver's side rear door window.

Stickers #3. Stickers on car windows. An automobile is private property just as your residence. I would consider a sticker placed on my window vandalism. Can you slap a sticker on the front door of a house if they have a violation? No, you send them a notice. Same should hold true if a car is parked in violation. Thank you. -Gary S.

RESPONSE: Cars are treated differently than houses. Houses aren't illegally parked in fire lanes, block other cars. block fire hydrants, and aren't subject to towing like cars. Stickers seem to be an effective deterrent for bad behavior.

*****

Proof of Ownership. Since a property deed need not be recorded, to be valid, we amended our CC&Rs to require deeds be recorded in order to be used as ownership proof, and we barred those fun family sized "land contracts" that some use to skirt the rules. -Laurence A.

RESPONSE: Whenever we restate documents, we routinely include a provision that deeds must be recorded to establish membership in the association. It makes it easier to verify qualifications for election to the board as well as other issues.

Boards should contact us for friendly, professional advice.

Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

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HARASSMENT
POLICY
To comply with new federal regulations and reduce legal exposure, boards should adopt anti-harassment, neighbor dispute policies.
See Policy Description.

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Our newsletter is for advertising and general information only. Readers should consult legal counsel.

ADAMS | STIRLING PLC

Articles may be reprinted provided there are no changes and the following is included:

Reprinted from
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Hon. Lawrence W. Stirling, Senior Partner ADAMS|STIRLING
Author of the Davis-Stirling Act