QUESTION: My HOA wants every household to pay $12,000 for an unnecessary special assessment. And, they didn't get 51% approval vote. Is that legal?
ANSWER: Special assessments do not require approval by 51% of the membership. By statute, approval is by a majority of voting members once a quorum has been established. (Civ. Code §5605(b).)
Emergency Assessment. If the assessment you describe is being imposed without a vote of the membership, it must be an emergency assessment. Although you called it unnecessary, the board must have determined the assessment was required. Very likely, they reviewed the situation with legal counsel and deemed it an emergency.
Fiduciary Duty. Directors are bound by fiduciary duties to act in the best interests of the association, even when it hurts them personally. Don't forget, each of the directors must also pay the $12,000. I'm sure they don't like it any more than you do. Something must have happened to force an assessment that requires them to reach into their own pockets.
Maintenance. It has been my experience that most emergency assessments are related to significant common area repairs without sufficient reserves. Common culprits are elevator equipment failures, deteriorating plumbing, unexpected roof failures, and widespread window leaks. Most failures are water related, which damage common areas and create potential health issues from mold.
Too often, prior boards fail to adequately reserve for large-ticket items. They think they are doing everyone a favor keeping dues down by deferring maintenance and skimping on reserves. Doing so means subsequent boards are left holding the bag when big ticket items fail and special assessments must be imposed on unhappy homeowners.
Bank Loan. The negative impact of the assessment can be reduced by borrowing the monies needed from a bank so repairs can be made immediately. Repayment of the loan is then spread over a number of years. Instead of each member writing a check for $12,000, they pay a more manageable monthly assessment until the loan is repaid.
RECOMMENDATION: Failure to make needed repairs will likely lead to litigation and higher special assessments. You are better off accepting the assessment and dealing with the problem now.
FOR BOARD MEETINGS
QUESTION: The board president is insisting we rent a room at a Best Western Inn for our board meetings and have the HOA pay for it. Our management company has an office 20 minutes away and we have a common area park available as well. Can the president force the other board members to rent a room?
ANSWER: The board as a whole makes decisions about when and where regular meetings are held, e.g., the third Tuesday of the month at 6:30 p.m. in the clubhouse. In this case, it involves renting a room offsite and the president is prompting fellow directors for a decision. There is nothing wrong with that--it's a sign of leadership.
Park. The location of meetings, both for the convenience of the board and the membership, is an important consideration. The association's park has the advantage of being close. It also has the downsides of noise, wind, temperature swings, and rain.
Office. The other option you mentioned is the management company's office. It has the advantage of being free and avoiding all the problems of an open-air meeting. Unfortunately, it is a 20-minute drive from the association, which will discourage many members from attending.
Hotel. If the Best Western is close and the cost is reasonable, it makes sense to hold meetings there. That way, weather, noise and distance won't disrupt meetings and discourage members from attending. It is a business decision for the board to make.
QUESTION: We have an owner who contends that not allowing owners to go on our monthly manager walk is a violation of the Open Meetings Act. Our manager does a visual inspection of the property for maintenance issues and owner violations. Up to two of our five board members go on the walk. Are we in violation by not allowing owners to join in?
ANSWER: No, you are not in violation. Your manager can inspect the property without having to announce it in advance and publishing an agenda to the membership.
Meeting Defined. Including two directors in the manager's inspection does not turn it into a board meeting. Board meetings are defined by the Davis-Stirling Act as a gathering of a majority of directors at the same time and place to "hear, discuss, or deliberate upon any item of business that is within the authority of the board." (Civ. Code §4090.) Two directors accompanying the manager on her property inspection does not constitute a board meeting.
RECOMMENDATION: If your homeowner wants to be involved in property inspections, he/she should run for a seat on the board.
JOINS ADAMS STIRLING
I am pleased to announce that attorney Laurie Poole joined our firm as our newest partner. Ms. Poole brings nearly 25 years of experience as an attorney in the HOA industry.
CCAL Fellow. Laurie is a fellow of the Community Association Institute’s prestigious College of Community Association Lawyers (CCAL) and was recently elected to its Board of Governors.
Case Law. Laurie is also a member of CCAL’s Amicus Review Committee and devotes time to shaping the laws governing California’s community associations. Laurie has already had a significant impact in our courts of appeal. Ms. Poole was appellate counsel in Quail Lakes v. Kozina (2012), trial and appellate counsel in Mission Shores v. Phiel (2008), and trial counsel in Fourth La Costa v. Seith (2008). Through her efforts, nine appellate decisions have become published case law in California.
Legal Practice. Laurie has extensive experience representing common interest developments, including master planned communities, large condominium projects, mixed-use, and highrise developments. The majority of her practice involves interpreting and amending governing documents, advising boards on compliance matters, addressing governance and insurance issues, and enforcement of governing documents.
Industry Activities. Laurie is an active volunteer for the Community Associations Institute (CAI) and the California Association of Community Managers (CACM). She is currently a member of the Board of Directors of the San Diego chapter of CAI, having served as its President. Laurie is a frequent speaker at industry events and has published numerous articles on common interest development law.
Education. Laurie graduated from the University of California, Santa Barbara with a double major in English and Sociology. She earned her Juris Doctorate from the University of San Diego, School of Law where she was a member of the Law Review.
We are proud to have Laurie Poole on our team. If your association needs legal services, please contact us for a proposal.
Beekeeping #1. You didn’t mention Africanized bees, a growing problem in the honey bee population. A lot of apiaries are being removed due to this problem. Putting them in HOA is ill-advised. -Jerry I.
RESPONSE: I don't think anyone is advocating using Africanized bees. The European variety (introduced into the Americas in the 1500s) are preferred because of their gentleness and robust honey production.
Beekeeping #2. Bees are everywhere. They have a hive somewhere, we just don’t know where. When we keep bee hives on top of garages we know exactly where the colonies are and can reduce the colony by giving away bees when the colony gets too large. With proper education of residents, bee keeping in urban communities is actually a safer way of dealing with bees. -Margaret V.