QUESTION: We have an owner who startles female tenants by entering their open garages. He was sent a warning letter but did it again with new female tenants moving in at 10 p.m. His said he is a friendly, concerned, crazy, bipolar neighbor. I consider it trespassing. Am I off base?
ANSWER: You are not off base to be concerned. I suspect female residents would be more than startled. Your neighbor's "crazy bipolar" comment does not help.
Criminal Trespass. There are many types of criminal trespass. In general, a person must willfully enter onto another's property with the intent to interfere with property rights (such as burglary or vandalism) or intent to harm the person, or refuse to leave the property upon request. (See Penal Code §601 §602 for a full list of factors.)
Scaling a fence to enter a property shows willful entry and may be prosecutable depending on intent. If the intent is to retrieve an errant football, a district attorney will decline to prosecute. Similarly, walking into someone's open garage to greet a neighbor would not be deemed a crime.
Civil Trespass. Criminal trespass and civil trespass are essentially the same. The difference is enforcement. Governmental authorities enforce criminal trespass whereas an aggrieved owner enforces civil trespass via litigation.
In California, civil trespass now includes invasion of privacy. Under Civil Code §1708.8(a), a
person is liable for invasion of privacy if he knowingly intrudes onto
private property without permission to capture a visual image, sound
recording, or other physical impression of a person engaging in a
private, personal, or familial activity.
Entering a garage to check on someone's well-being would not qualify as an invasion of privacy.
Breach of CC&Rs. Your best bet is to take action under the CC&Rs. If your neighbor continues to enter garages after being told to stop, he can be fined under the nuisance provision of your CC&Rs.
RECOMMENDATION. The board should call your neighbor to a hearing and make it clear that entering garages uninvited is unacceptable and if he continues it would subject him to fines and suspension of privileges.
IS CANCELING AN ELECTION
TO SAVE MONEY LEGAL?
QUESTION: For our election, only three candidates volunteered for the three open seats. The president wants to cancel the election to save money. Is this against the law?
ANSWER: I don't believe it is against the law. Your president is not really canceling the election, the election will be determined by acclamation rather than balloting. Unfortunately, there is nothing in the Davis-Stirling Act addressing acclamation, so it's unclear.
Argument Against Acclamation. The argument for mailing ballots, even when seats are uncontested, is found in Civil Code §5100(a), which states:
...election and removal of directors... shall be held by secret ballot...
Arguments for Acclamation. There are two arguments in favor acclamation. The first is that balloting is required only when an election requires a vote. If the election is uncontested, there is no need for a vote. Second, the law does not require idle acts nor does it favor form over substance. (Civ. Code §3532; Civ. Code §3528; Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016.) Sending out ballots would be an idle act since the outcome is already known. I find these two arguments persuasive.
Legislation. This year's Senate Bill 1128 removed any ambiguity by explicitly allowing associations to avoid the cost of mailing ballots when an election is uncontested. Unfortunately, the cost-saving measure was hijacked by the Center for California Homeowner Association Law (CCHAL) which added language that stripped away homeowners' rights regarding candidate qualifications. Thankfully, the altered bill was vetoed by the governor.
RECOMMENDATION: Dispensing with balloting in uncontested elections makes the most economic sense. To remove any ambiguities, associations should amend their bylaws to waive balloting in uncontested elections (along with eliminating write-ins, floor nominations, quorum requirements, proxies and cumulative voting).
QUESTION: Can boards change director qualifications without amending the bylaws? Our previous board changed the qualifications and added that a recalled board member could not join the board for three terms (6 years.) Is this legal or reasonable?
ANSWER: Arguably, it is legal. The court of appeal in Friars Village v. Hansing ruled that boards can adopt director qualifications via a rule change provided the qualifications are "reasonably related to the performance of the Board and will serve to protect its overall mission--protecting the best interests of the Association."
Limited Applicability? However, the court's decision was based on a specific set of circumstances coupled with the language in the association's governing documents. As a result, it is unclear if the decision opened the door to all associations freely adopting director qualifications via rule changes.
Opposing View. Personally, I'm not a fan of creating qualifications via rule changes. It means they can change from election to election by majority vote of each new board of directors. I believe the better approach is to establish qualifications by amending the bylaws. It creates more stability in the election process and directly involves the membership in approving such standards.
Reasonable? Some owners are so disruptive, there is good reason to keep them off the board for a period of time once they are recalled. Is six years reasonable? I don't know how a court would rule. Your community will have to decide for itself how best to handle the situation.
I am pleased to announce our Orange County office is growing! Partner Jasmine Hale is now overseeing the office and attorney Jennie Park is joining senior attorney Wayne Louvier and client relations director David Rico on our Orange County team.
We look forward to meeting managers, board members, and homeowners at future Orange County CAI and CACM events.
Contact us for a proposal when your association needs legal counsel or would like board training.
Balconies #1. You state “bicycles should be encouraged” on balconies. Did you really mean that? The following statement seems to imply the opposite. This is my first newsletter and I’m looking forward to more. -Judy M.
RESPONSE: You were close. Bicycles, i.e., riding bicycles, should be encouraged. Storing bicycles is an important issue. Some associations allow storage on balconies, some provide secure cages in their parking structure, some have bike racks in the common areas. Each community is different and should work out what is best for them.
Balconies #2. Our board had a difficult homeowner who refused to remove three huge pots with large plants in them. The company that did our decksk said the pots would eventually damage the deck. Rather than fine the homeowner the board opted to send them a letter stating they were responsible for any damage to the deck. Despite the potential cost the pots remained. -John A.
RESPONSE: The board should realize they are simply postponing the battle. It happens now before damage occurs or it happens later when common areas and units below suffer water damage.
If the board does not want to force the owner to remove the pots, it should call him in for a hearing. The board needs to make it abundantly clear that large pots will damage the waterproofing membrane and the owner will be responsible for all resulting damage to the balcony and surrounding common areas and lower units.
The hearing and decision need to be recorded in the minutes. The letter with the board's decision along with the first letter giving notice of liability should to be kept in the person's file. The board will need them when wood rot and related water damage occur because of the heavy pots. The board should also consider scheduling annual inspections of the person's balcony.
Fidelity Bond. Your series of articles on the new fidelity bond requirements were helpful. I'm still unclear about the computer/transfers fraud. What are the coverage requirements? Are they the same as the fidelity bond---reserves plus 3 months of assessments? -J.A.
RESPONSE: Yes, they are. The new statute, effective January 1, 2019, states that coverage for computer fraud and funds transfer fraud be part of the fidelity bond. That means an amount equal to or greater than the combined amount of reserves and total assessments for three months (or better).
Similarly, if the association uses a managing agent or management company, the association’s fidelity coverage must include dishonest acts by that person or entity and its employees at the bond's full limits (or greater). It should be noted that the new statute defers to the governing documents if they require greater coverage amounts.
RECOMMENDATION: I encourage boards, managers and insurance agents to jump on this. Time is growing short.