QUESTION: I was chairman of our security committee. Only myself and my backup had access to the security camera system. This was to ensure the privacy of our tenants. The president demanded that I give access to board members stating that they have a right to see all HOA records. I refused stating privacy issues. The president removed me from the security committee. Are security camera recordings considered "records"? Does the board have the right to view them?
ANSWER: Yes, security camera recordings qualify as "records" and board members have a right to review them. (Corp. Code §8334.) Their status as records makes them discoverable in litigation, the same as other digital data such as documents, sound recordings, photographs, emails, etc.
The right to review is not the same for homeowners. Video surveillance recordings are not included in the list of records authorized by the Davis-Stirling Act for members to review. Even so, boards can make them available if they so choose.
Full Access. Smaller associations sometimes stream their security feeds and give all owners a password so they can log in from their computers or phones and monitor the cameras in real time. It gives extra sets of eyes on the common areas.
Limited Access. Most associations will provide only limited access to members. There are times when a member would have a legitimate reason to review a particular recording. For example, an owner's car is vandalized and she wants to view footage that would show who caused the damage.
Records Storage. Digital images are generally stored for 30 days and then automatically erased to provide room for more images. The storage time is sometimes set for shorter periods (2-weeks, 10-days, 48 hours) depending on the amount of memory available and the number of camera feeds.
Privacy Concerns. In California, associations can lawfully install video surveillance cameras in the common areas provided they are not viewing areas where people have a reasonable expectation of privacy, such as restrooms, locker rooms, or the interior of an owner’s unit. (Penal Code §647(j).)
RECOMMENDATION: Boards should adopt guidelines for how security camera data are stored, for what period of time, under what circumstances recordings may be viewed, and by whom.
SENATE BILL 323
SB 323 is the anti-consumer legislation pushed by the Center for California Homeowner Association Law (CCHAL) that takes away homeowner rights to adopt qualifications for who represents them on their boards of directors.
The bill also forces members to include their email addresses on membership lists, which are then turned over to other members upon demand. And, it allows owners to copy member's signatures on voting materials, thereby invading member's privacy and creating the potential for identity theft.
The legislation needs to be stopped. Following is information from the Chair of the California Legislative Action Committee. -Adrian Adams
You can harness the power of social media to stop SB 323. Tag your Assemblymember and let them know you oppose SB 323. You can use our infographic here with the draft post below.
If you’re a constituent, please direct a message to your Assemblymember on Facebook and Twitter by including their names (including @) with information we drafted messages below for you to use. Feel free to edit as you’d like and use our VOTE NO on SB 323 graphic.
[Tag your Assemblymember (ex: @AsmKevinMcCarty]: With 55,000 community associations in CA, SB 323 will cost homeowners more than 302 MILLION DOLLARS statewide. Vote no on SB 323. #californiacannotaffordSB323 #CommunitiesUnited
If you have any questions, please contact us at [email protected]
Nathan McGuire, Esq.
Kudos #1. Without your website as a resource, boards would be in the dark on a lot of issues. Thank you for your website! -Ty W.
Kudos #2. Thank you to the partners and employees of Adams Stirling PLC who participate in putting out the Newsletter. It is a most valuable resource for keeping HOA boards informed. -John G.
Golf Course. I read last week's article about purchasing a golf course. Is there ever a circumstance when a board could approve the purchase of a golf course or other large asset without a vote of the membership?
RESPONSE: Yes. Although governing documents often require membership approval to purchase a large asset, that is not always the case. In some instances, governing documents authorize the board to acquire large amenities (such as a golf course). The authorizing language can be specific or generic. Even with authorizing language, the membership may need to vote on the funding. If the property can be purchased within the financial limitations imposed by the Davis-Stirling Act, membership approval is not required. If, however, a special assessment greater than 5% and/or a dues increase greater than 20% is needed, membership approval is required. If the purchase requires a loan, governing documents might also require membership approval.
Noisy Floor #1. Under California Building Code Section 1207.3, all floor coverings between units must meet an Impact Insulation Class (IIC) of 45 if "field-tested."Field testing requires acoustical consulting firms to conduct sound tests on a building. All units in a building have to conform with the CBC. If an owner does not comply, then the HOA should report the owner to the local city building and safety department. That usually gets a visit and a response. -Bruce K.
RESPONSE: Building codes set minimum standards for noise transmission and, as you noted, can sometimes be useful in getting the city involved when dealing with noise problems. Because an IIC of 45 is considered too noisy by many associations, they often adopt higher minimum standards. Following are recommended guidelines for different types of construction:
Noisy Floor #2. When I was the VP of our HOA in Pasadena, we had a CC&R restriction that any wood flooring on the second or third floor was required to have a noise canceling barrier such as cork. We didn’t have any problems with noise once we added that and enforced it. -Rob L.
RESPONSE: In addition to cork, there are other sound deadening materials on the market. The amount of material placed under hardwood floors will vary depending on the type of construction, age of building, and desired level of quiet enjoyment the association wants to achieve. Boards can adopt architectural guidelines setting a particular standard. In addition, CC&Rs can be amended with those standards, which makes it easier to enforce if violations end up in court.
Excluding a Director. If the board decides to exclude a board member to discuss his threat of litigation, wouldn’t this require setting up an executive committee? -Lisa I.
RESPONSE: An executive committee is not required if the person voluntarily recuses himself from meetings involving his threatened (or actual) litigation. If he refuses, the board can form an executive committee (minus the interested director) to handle all matters related to the litigation.
Gun Toting Director. Some commercial policies have firearms exclusions, but I have never seen one on an HOA policy. Could the insurance company argue “intentional acts of the insured”, “criminal acts” or some such argument? It’s an interesting question, but probably not. The bottom line is that a wrongful death claim, with even a hint of HOA negligence, would more than likely have the HOA’s insurance company in a panic to settle before the case goes to a jury trial. -Patrick Prendiville, Prendiville Insurance Agency
Denying Records to Directors. Two directors on our board requested a copy of an engineering report of one of our clubhouses. The president and our general manager are denying access to the report. The general manager said it was only a draft. Do we have the right to see it? -Carol M.
RESPONSE: Although Corporations Code 8334 gives directors the absolute right to see all records, the courts have carved out exceptions. What you described does not fall into one of the exceptions. As a director, you have the right to see draft proposals and bids. I understand and agree with the president's desire not to distribute drafts since they may contain incomplete or inaccurate information. You could, however, go to the office and view the draft but not have a copy. Once the report is finalized, you can receive a copy.
Paid Directors. Are board members permitted to work for the association on a regular basis and receive payment? -L.E.V.
RESPONSE: Directors should never be paid for serving on the board. It eliminates their volunteer status and increases their exposure to potential liability. If directors are paid for services unrelated to serving on the board, it's legal. For small associations, it is not uncommon to pay a director to be a handyman on the project. Unfortunately, under last year's Dynamex vs. Superior Court, the director is deemed an employee of the association unless he can meet a stringent test to qualify as an independent contractor. That means payroll withholdings, overtime, etc.
For larger associations, paying directors for services creates negative optics. It gives the appearance of a breach of ethics. Since they can afford it, it is much better to hire an independent third party for such services. If there is a compelling reason to pay a director for an ongoing service, the director should immediately resign from the board and provide those services with appropriate invoicing.