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  California's Leader in Community Association LawAugust 30, 2020
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Candidate Statements
. Our HOA will not allow candidate statements. How do we know what their qualifications are and who to vote for? -Ron B.

RESPONSE: A nominee must have a reasonable opportunity to communicate to the members the nominee's qualifications and the reasons for the nominee's candidacy. (Corp. Code §7522(c).) However, if the board allows candidates to advocate a point of view using the association's media, equal access must be given to any member advocating a different point of view. (Civ. Code §5105.) At a minimum, boards should allow candidate bios and pictures so members have some idea who they are voting for. Doing so does not fall into the category of advocacy.

Membership List. Can I use a membership list to mail letters campaigning for candidates for the annual election? -John E.

RESPONSE: Yes you can. You have the right to request a copy of the membership list (Civ. Code §5200 and §5205) if it's for a proper purpose (Civ. Code §5225). Communicating with the membership to urge them to vote for particular candidates is a proper purpose. In addition, you can circulate flyers urging members to vote for or against anything on the ballot. (Civ. Code §4515(b)(5).)


Contentious Political Season. During these unprecedented times, signs are being displayed at the risk of graffiti and other vandalism. Is it appropriate for board to ask people not to put up anything for everyone's safety? -Mimica N.

RESPONSE
: I understand your concerns. We've seen non-stop rioting in some badly run cities around the country. In one instance it spilled over into a gated community when a mob smashed the association's gate. This is going to be a contentious political season and very likely there will be graffiti and vandalism. You can always ask people not to display signs but you can't prohibit signs if they are properly constructed, sized and displayed. I expect we will see a fair number of them this year. 

QUESTION: If our HOA president takes a salary or doesn't pay monthly dues, who must he disclose it to? To all homeowners or just the board? -Gary G.

RESPONSE: The Davis-Stirling Act protects volunteers from personal liability. (Civ. Code §5800.) If a director takes a salary or his/her assessments are waived, the director ceases to be a volunteer. The director becomes a "professional" director and loses the liability protections afforded to volunteers. Getting paid could also violate the association's governing documents. Your president should disclose the arrangement to the board and record it in the minutes so it's disclosed to the membership. If the Board is smart, it will rescind the arrangement.

An Owner-Manager
. Is there a conflict with having an owner as a manager? This owner is trying to recall the current board and install a whole new board with no experience and would appoint himself as manager. -Dan T.

RESPONSE: There are potential conflicts and the arrangement is fraught with problems. It's harder to fire a neighbor/manager than an independent third party. Moreover, the homeowner will not have the insurance that a management company carries. And, when fired, the ex-manager does not go away because he/she lives in the development. Finally, the ex-manager can launch a recall because he/she is a member of the association. I've seen it happen in other associations and now it's happening to you. I always tell boards not to hire a homeowner to manage their association. Some ignore my advice and hire the owner anyway. They always come to regret the decision.

Nonessential Management. Are management companies considered essential services? Can they shut down and claim they are not essential? -Cat W.

RESPONSE: Yes, they are essential. If your management company has declared itself nonessential and has shut down, you should let them go and get a management company that is still operating.

Finding Good Management: What steps do you recommend in finding management firms? Also, does ADAMS | STIRLING provide HOA management services? -Navi G.

RESPONSE: We don't provide management services since it would create significant conflicts of interest. Boards should never hire a management company with an in-house attorney that offers legal representation to the associations they manage. Boards should only accept truly independent legal counsel.

As for management companies, you want one that places a premium on training their managers. If their managers are all certified (or working on certification) through CAI or CACM, you will be in better hands than a management company with no certified managers. See Designations and Certifications. Ask how long they've been in business since nothing can match the wisdom that comes with years of experience. Ask about insurance — what do they have and at what limits? Finally, take a look at the financial statements they generate for their associations. It's really important that you can read and understand them. Otherwise, they have no value to you.

Lender Foreclosures. As I have always understood, lenders who obtain title to a unit through deed in lieu of foreclosure are responsible for no more than 6 months of assessments. We have received differing information — that if a lender receives title through deed in lieu they are liable for all previous owners assessments, and none if obtained through foreclosure. Can you please clarify which is true? -Amy G.

ANSWER: A lender who takes title through a deed in lieu is not responsible for any past dues UNLESS there is an assessment lien recorded at the time of the transfer to the lender, in which case the lender takes title subject to ALL dues secured by the lien.

HARMFUL LEGISLATION

AB 3182 limits your association’s ability to restrict rentals. The legislative session ends on August 31 and the State Senate will likely take up AB 3182 today, so act now to protect your association. As soon as you read this, tell your Senator to OPPOSE AB 3182.  

AB 3040 allows local governments to rezone single-family residential lots to allow up to 4 primary dwellings per lot — and associations cannot prohibit construction of three additional dwellings per lot. This would negatively impact property values and significantly increase the load on amenities, sewer, water and parking. Moreover, it's unclear whether associations could increase assessments on lots that added extra houses. The bill is truly moronic. Fortunately, it stalled in the Senate.


Governor Newsom issued a color coded system for reopening businesses. Starting Monday, some businesses will be able open indoors even if on the watch list, such as hair salons and barber shops next week.

The State released Guidance for Small Supervised Groups of Children on August 25, 2020.

As of August 27, 2020, there were 34 Counties on the Monitoring List: 8/27/20 Monitoring List. All Counties on the Monitoring List are noted with an *.

The State issued the following new guidance: Guidance on Returning to Work or School Following COVID-19 Diagnosis; Guidance for Small Cohorts/Groups of Children and Youth; COVID-19 Case and Contact Management Within Child Care Facilities


NorCal Counties
. A Butte County press release announced that there has been a spike in cases among college-aged persons, many in an apartment complex. The press release urged those in multi-unit housing complexes to wear face coverings in common areas.

Contra Costa County has a new Order dated August 26, which is effective August 28. The new Order allows for outdoor operation of personal care services that do not involve close contact with the face, outdoor gyms and fitness centers, hotels and short-term rentals may open for personal or recreational travel. Contra Costa also issued a press release indicating leveling in transmission.

Mono County has a new press release indicating that they have been removed from the Monitoring List but that indoor business operations must remain closed at this time. Mono County anticipates an update from Governor Newsom on this point shortly. Mono County Press Release dated 8/24/20 re Mono County no longer on monitoring list.


Tehama County has a press release dated August 26, 2020. The press release discusses what businesses must be closed as a result of being on the monitoring list.


SoCal Counties. Imperial County was granted a variance by the State to begin reopening businesses and issued an amended health order to follow state guidelines for businesses to reopen.

Los Angeles County revised what’s open in Los Angeles.

Santa Barbara County closed their beaches during the Labor Day weekend (9/4–9/7) for non-exercise activity such as sunbathing, sitting, standing, picnicking, sightseeing. Watersport activity, walking, jogging, and cycling are OK.


READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 8-27-20. The chart is also posted on our website.



Insurance Claims. I have one area of concern or possible disagreement. As a unit owner is an insured, the Department of Insurance respects their right to submit a claim WITHOUT BOARD APPROVAL. Accordingly, I do not agree that the board (the trustee) of the policy has the right to deny or withdraw a claim already submitted by the unit owner, thus denying an insured their right to make a claim. -Glenn Robinson, Senior Vice President, Armstrong/Robitaille

Pool Correction. CAI’s respondents in California in June reported that only 34% of pools were closed! 13% were opening soon, and 36% were open for use. So of course we are nearly 2 months after the survey and that pool open percentage in California has only grown larger. That 7% number is the nationwide percent of pools that *did open on time.* An additional 37% of pools are open; they just didn't open on time. Only 40% of pools were responded to be closed nationwide. Here is a link to their report. -Mike M.



Boards can contact us for friendly,
professional advice.


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

DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to California associations only.

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