Confusion: Your response about pandemic county orders is creating confusion about board authority versus county health department directives. -Shirley P.
RESPONSE: Many are confused about the role of associations when it comes to enforcement authority. While boards must comply with applicable laws, such as the Davis-Stirling Act and Corporations Code, they are not the enforcers of laws and ordinances issued by cities, counties and the state.
Traffic Laws. For example, associations are not the enforcers of state traffic laws. If an association has private streets, boards must adopt their own traffic and parking rules which they enforce with fines and suspension of privileges. Associations can issue a fine for speeding if they adopt rules regulating speeds in their community. The same is true for pandemic directives.
Gym Directive. If all gyms in the state are ordered closed, boards have jurisdiction over common area gyms and the power to close them. If the county issues a directive that everyone wear masks when outdoors, the association is not the enforcer of the county's directive. They can't stand outside and ticket people not wearing masks. They can, however, adopt their own rules about wearing masks in the common areas. Many condominium associations adopted emergency rules about wearing masks in common area hallways, elevators and lobbies.
Private Parks. Associations can also adopt rules regulating their common area greenbelts and parks. If the board decides it's okay for a family to picnic in the park, it's within their jurisdiction. If a neighbor reports the family to the authorities, and police ticket the family, in my opinion it's heavy-handed.
Unit Guests. If an owner invites a couple to his unit, it would be a overreach for an association or civil authorities to fine the owner and his guests. We are in a pandemic but that does not mean we can put people in straightjackets. I would not be comfortable advising a board to report the owner to the authorities. At some point, some balance needs to enter the picture.
RECOMMENDATION: If associations want to adopt emergency rules related to the coronavirus, they can do so. Boards should work closely with legal counsel on the rules. Even though restrictions will soon be loosened, a second round may be imposed later in the year if the virus mutates.
POOLS AND SPAS
Doctor's Note. We have our pool and spa closed in our 55+ community. We have a handful of residents who are angry because they use the pool for exercise and therapeutic activities. Their doctors and chiropractors are sending us letters about the importance of the pool to their patients.
Recently we received a lawyer letter stating we were in violation of the Americans with Disabilities Act. I can't imagine any judge would rule against us for following official guidelines related to the virus. -John S.
RESPONSE: Cities and counties closed their own swimming pools, gyms, tennis courts and golf courses. I don't hear anyone threatening them with lawsuits. (If anyone sues, it would be the golfers.) It should be noted that the Americans with Disabilities Act does not apply to associations. An association has no legal obligation to accommodate a request if it poses a threat to the health and safety of others. Restrictions should start to loosen shortly. Everyone should be patient.
Asphalt Repairs. Does it violate the governor's stay-at-home order to have 3 to 4 people meet to keep HOA business moving forward?
Our asphalt is really bad and the board is concerned about liability if someone falls on their bike, trips, etc. Is it okay for committee members and a vendor to meet to discuss proposals? They would wear masks, stay 6 feet apart, and meet outdoors. -Lisa O.
RESPONSE: It's not a violation to maintain your facilities. Not only is maintenance an essential function, it's especially important if it involves safety. If you wear masks and maintain social distancing when you meet, you will be safer than grocery shopping. It is impossible to maintain social distancing in a grocery store and if you find toilet paper on a shelf, you put your life at risk if you reach for it. You could end up in a brawl.
Painting Fences. We are in the middle of painting common area fences. This project started before the pandemic and is continuing since painters can access fences without coming into contact with homeowners. Today I received a volatile email from a resident stating we had no right to access her rear yard and expose her to the virus. -Jordan L.
RESPONSE: She's been watching too much TV. News organizations have been running scary headlines 24/7 and people are overreacting. If she stays in her house, a worker painting her fence is not going to give her the coronavirus. Instead of dying from Covid-19, she is going to give herself a heart attack. It's not worth getting into a battle with her now. You should skip her fence and continue painting other fences.
Signing Checks. Our HOA requires two signatures for checks to pay regular monthly bills (water, landscaping, security, etc). During Covid-19, can we revert to only the treasurer signing monthly checks to help with social distancing? -John
ADA Sidewalk. We have plans and permits for an ADA sidewalk at a private HOA park. Should we proceed or do we have to wait until stay-at-home orders are lifted? -Tessy A.
RESPONSE: Maintenance is allowed (construction crews are working on highways daily). It would be smart to get your sidewalks done now while demand for contractors is light. Once restrictions are lifted, there will be a flood of pent-up demand for contractors and you may have trouble getting the work scheduled.
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"Blood on the walls" and "clothing optional" I love this! It is so true. I am trapped at home with my husband (who is trying to work from home, be a teacher, and provide childcare), my 6-year old in kindergarten, and an 18-month old. There will be blood on the walls if we couldn’t go outside! I appreciate your continued supply of information throughout this pandemic situation. -Christina G.
Thank you for the kudos to managers! Yes on all points! -Laurie N.
Love your newsletter. First thing I open from my list of emails. -Tessy A.
Support Staff. I'd like to give a shout-out to all of the support staff (non-managers) at all management companies, who are the real first responders or frontline for our homeowners, being primarily their first contact. Thanks to modern technology, we are here for our homeowners 100%. Also, I love reading your newsletter for the great information and humorous touch you weave throughout! Your response about family picnics and sunbathing question had me LMAO. "there could be blood on the walls" and "As long as they wear more than just a mask...". I totally get your common sense humor and I appreciate it. Keep up the superb work. You are doing this industry a great service! Thank you and may God bless us all! -Susan N.
|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 associations only.