QUESTION: We have someone distributing an election flyer with false statements and inaccuracies with no attribution. Can we add to our election rules that flyers must identify who wrote them?
ANSWER: I believe you can and there are good reasons for doing so.
Reasons for Anonymity. Sometimes a flyer is anonymous because the writer fears retaliation. From my experience, that makes up only 10-20% of flyers. The other 80-90% of anonymous flyers are hit pieces. The writer does not identify himself so he can freely engage in misstatements, half-truths and inflammatory rhetoric, whether it be against candidates for the board or existing board members.
Venomous Flyer. In one association I worked with, someone distributed a venomous flyer throughout the community in the dead of night. The flyer targeted a newly elected director who was the swing vote on a divided board. The next morning, the director found the flyer and read it. He suffered a stroke, went into a coma and died. It put the community into an uproar. The board deadlocked and a provisional director was appointed by the court to fill the open seat. The author of the toxic flyer was never identified.
Benefits of Attribution. As a result of this and other experiences involving anonymous flyers, I am a fan of requiring all flyers identify the author. Doing so helps moderate inflammatory rhetoric and untruths. Knowing the source also helps readers evaluate the credibility of the information.
Plea to Not Elect. In another association, one director mistreated staff and was particularly disruptive at board meetings making it difficult to accomplish any business. When the problem director's seat was up for election and she decided to run for another term, the other four directors signed a flyer which they distributed at their own expense describing all the problems they had with the director. They pleaded with members not to reelect her and made it clear they would all resign if she were reelected. She was not reelected.
Statute. Associations cannot prohibit flyers but they can regulate them. The Davis-Stirling Act allows for the distribution of flyers without prior permission subject to reasonable hours and in a reasonable manner. (Civ. Code §4515(b)(5).) The reasonable hours and manner provision allows associations to regulate how late people can knock on doors to hand out leaflets, affixing flyers to walls, doors, windows, vehicles, etc. In my opinion, it also allows for the requirement that flyers identify their authors.
California Election Code. The reasonableness of this requirement can be gauged by similar requirements in California's election laws. The Political Reform Act (PRA) of 1974 regulates elections so as to foster public trust in the political system. To promote transparency, the PRA requires political ads include a disclosure that they are “Paid for by,” followed by the name of the committee. "Committee" is broadly defined to include a person or entity making independent expenditures on candidates or ballot measures.
RECOMMENDATION: Not everyone will agree with my recommendation on transparency, i.e., that flyers identify their author. Boards should consult with legal counsel if this becomes an issue in their association.
LOOK OF THE ASSOCIATION
QUESTION: I purchased my condo four years ago. I liked the wood front doors. The president passed a rule that everyone replace their front doors with a fiberglass door with windows. I did not want windows in my door and they are charging $1,800 for the new door. This is changing the look, which is why I purchased my home in the first place. Is this legal?
ANSWER: Yes, it's legal. Maintenance and architectural decisions are primary functions of an association. Your CC&Rs probably devote a fair amount of ink to both topics.
Board Decision. It is unlikely the president is doing this by himself. One director cannot pass rules or impose assessments. Most boards I work with have a committee recommend aesthetic changes, give notice of the proposed changes, and invite comments before submitting a project such as you describe to the board for approval.
Cost Approval. The $1,800 price tag you mentioned also indicates full board involvement. The president does not have the authority to require members to pay $1,800 to change their door. Fellow board members would be required to approve the project and its cost.
OBSERVATION: When it comes to aesthetics, it is impossible to please everyone. As the Court of Appeals noted, beauty is in the eye of the beholder. (Clark v. Rancho Santa Fe.) A door style you love, others will object to and vice versa. In the scores of redecorating projects I've been involved in, I've never had one where every person was happy with the outcome. We always had critics of paint colors, carpet selection, artwork and cost. The California Supreme court observed that "anyone who buys a unit in a common interest development with knowledge of its owners association's discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual." (Nahrstedt v. Lakeside Village.)
TELL HOUSING COMMITTEE
TO VOTE NO ON SB 323!
The State Senate passed SB 323 and it is now in the Assembly where it will be voted on by the Housing Committee. This problem bill prohibits an association from establishing qualifications for board members and adds a number of burdensome election requirements.
Thank you to all 800 of you who submitted letters to Senators. While our efforts were strong, we now focus our attention on the Assembly Housing Committee. Here’s how you can help:
1. Send a pre-drafted letter to the Assembly Housing Committee.
2. Share with others the harmful effects of SB 323 and forward this information to your own email lists.
3. Get involved on CLAC's Facebook and Twitter and LinkedIn channels. Like and share our posts to help us reach more people. You can also tag or direct a message to your Assemblymember with our posts asking them to Vote NO on SB 323. Many are on Twitter.
4. We’re posting video updates to keep you informed on the latest legislative news. Subscribe to our YouTube Channel for new video alerts.
Thank you for helping us make an impact. The more opposition we generate, the more influence we have. So, please join us and make your voice heard!
Nathan McGuire, Esq.
NOTE FROM ADRIAN: For information on the problems with SB 323, see our February 24 newsletter; see "Feedback" in our March 31 newsletter; and the "Feedback" section in our April 28 newsletter. The bill puts felons, delinquents and litigants on boards; prohibits associations from ever suspending voting rights; adds another 30 days to the election process; and takes away privacy rights. I urge everyone to send a pre-drafted letter to the Assembly Housing Committee. -Adrian Adams
Great Newsletter. Always SO impressed with what you're doing. If I could start my career over again, would get into this area on some basis. And your site is a major, major resource. Too bad that our board never wants to check it out, much less pay attention to anything in it. -Monica F.
RESPONSE: Many thanks for your kind words. If you want to attend law school, let's talk.
First Class Condition. I’m not sure why developers use some of the CC&R language they do. I agree with you that first-class condition, top quality, or like new would all be problematic terms for even a conscientious HOA to comply with, but the one thing those terms clearly are meant to convey is don’t let the property run down. Don’t defer maintenance to a point where it is obvious. -Tony V.
Incentives to Vote #1. I suggest not to raffle off wine or any type of drink requiring someone to be over the age of 21 in the state of California. If you use just the envelope with the name and address on it, it does not identify the age, and if the winner is under 21, the unknowns could be a disaster for the HOA. So my food for thought would just be a gift card, for types of products where alcohol cannot be purchased with it. -Jim W.
Incentives to Vote #2. First let me say THANK YOU for the information that you provide us thru your newsletter. Your recent newsletter "Voiding an Election" was timely. Our president resigned because he moved. The board elected our vice president as president. Our bylaws state: "In the event of a vacancy on the governing board, his successor shall be selected by the remaining members of the board and shall serve for the unexpired term of his predecessor." When the president resigned, his term on the board was to expire this September (2019). The board member (VP) who took his place as president had been elected for a term of office on the board for three (3) years (2021). Which takes precedence? "the unexpired term of his predecessor" (ending in September) or the elected board member whose term ends in 2021? -Joe C.
RESPONSE: You are mixing apples and oranges. There are two different offices. One is that of director elected to the board by the membership. The second is an officer selected by the board. The quote from your bylaws deals with the selection of a replacement director to fill the seat held by your former president. That replacement director is on the board through September 2019, at which point he/she is up for election. The office of president conferred on your VP can run through 2021 (provided the board is happy with the person's performance as president). See Chart of Differences Between Officers and Directors.
Incentives to Vote #3. I am running for our board. Talking to people I have found that most of the non-voters don’t read the candidates statements and don’t follow any of the issues. I think we are better off if they don’t vote. -Finn M.
RESPONSE: Cajoling people to vote so an association can meet quorum does not produce the best results. That's one of the reasons I recommend eliminating quorum requirements for elections.
Incentives to Vote #4. What is the point of voting for the board when we are never told the results of the vote and never given a list of the board members or their contact information. -Suzanne N.
RESPONSE: Someone needs to point out Civil Code §5120(b) to the board and manager. It requires the tabulated results of an election be promptly reported to the board of directors, recorded in the minutes of the next meeting of the board, made available for review by the membership, and within 15 days of the election, reported to the membership. (See a sample notice.)
Incentives to Vote #5. Like you, I do not like the idea of penalizing people for not voting. Voting is both a right and a privilege. With all due respect, I do not like the idea of bribing people or giving them incentives to vote either. If the board gives bounty, it also puts a thumb on the scale to vote for people on the board. -Denyse B.
RESPONSE: My first choice is to amend bylaws to eliminate quorum requirements for the election of directors. It simplifies everything. If it's not possible to amend the bylaws, then bribe members to vote. I've found that people prefer incentives over punishment.
Motus Insurance. As always, I enjoy your newsletter. But I have a suggestion on this one regarding the information provided by Motus Insurance. In paragraph 2 of the response from Motus, it is indicated that a California Earthquake Authority (CEA) policy cannot be purchased without a companion HO-6 policy in force for a condominium unit owner. This is true, but the final sentence of this paragraph suggests that a condominium owner “cannot purchase earthquake insurance when there is no master policy in place.” This is not accurate.
The purchase of earthquake insurance through the CEA (or a competitor) by a condominium unit owner is subject to the HO-6 purchase, not the purchase of coverage by the community. In paragraph 3 the confusion is, I believe, increased with the statement that “The CEA cannot do the underwriting necessary for an individual living in an association without a master policy.” Perhaps what was meant by this is the CEA does not offer enough coverage to protect the exposure of a condominium unit owner living in a community without a master earthquake insurance policy in place, because the typical exposure is greater than the maximum coverage limit available to the unit owner. -Michael Berg (MBA, CIRMS, CMCA), Berg Insurance Agency