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  California's Leader in Community Association Law June 24, 2020
MEETINGS & ELECTIONS
FOR THE DEAD

Proxies. A member in our condo building recently died. Can someone carry her proxy for meetings? -Frida Z.

RESPONSE: Yes. The proposed proxyholder should immediately go to the funeral home and get her signature before she is buried.
It should be noted, however, that no person can truly rest in peace if they are still participating in HOA elections — even if by proxy.

If the person is already in the ground, the executor of her estate might be able to attend board meetings and vote in elections on behalf of the estate. I don't know the extent of the power of an executor. Someone with expertise in wills, trusts and estates will need to send us the answer.

In-Person Annual Meeting. We postponed our annual meeting. We know we can meet online via Zoom but would rather meet in person. We have only 12 units and usually meet in our recreational room. Can we limit it to a small number with chairs spaced 6 feet apart? How long can we postpone this annual meeting? -Pamela H.

RESPONSE: If you maintain six feet of separation and t
ake reasonable precautions such as wiping down surfaces, making hand sanitizer available, etc., you can hold an in-person annual meeting. If, however, the room is so small that you have to exclude people who want to attend, you should hold a Zoom meeting (or a combination in-person and Zoom meeting). There is no need to postpone the meeting. Your inspector of elections can live- stream opening ballots and tallying results.
 
SOME POOLS
REMAIN CLOSED

Confused and Frustrated. Our board voted not to reopen our pool, citing personal liability of board members should an outbreak occur at our pool, even with waivers required and reasonable cleaning and distancing measures in place to protect homeowners. We as residents are confused and frustrated. Is there validity to our board’s concerns or is this unnecessary concern? -Whitney V.

RESPONSE: Boards vary on their willingness to take risk. Although I don't believe directors are personally liable if they follow the Business Judgment Rule (make decisions in good faith, in the best interest of the membership and with due diligence), another attorney might be more cautious. All of this is uncharted territory. To make matters worse, we have confusing and conflicting orders from State, County and City Health Officers.

Depending on your particular County's guidelines, some requirements are impossible for small associations to comply with. Even if an association can meet applicable health directives, we recommend boards adopt emergency rules and require a signed hold harmless agreement from residents who want to use recreational facilities. The alternative is to wait until the coronavirus has burned itself out and health authorities have announced an end to the pandemic.

Hold Harmless Agreement. Our HOA wants us to sign a 4-page release agreement. It seems excessive and includes an indemnity provision. Are all associations doing this? -William

RESPONSE: I don't know if all associations are using hold harmless agreements. If they're not, they should. The virus is still circulating through the population and will continue to do so into the foreseeable future.

Different Releases. Different law firms approach releases differently. We use a one-page agreement that does not include an indemnity provision. We want to make it easy for members to use the facilities in exchange for an agreement not to sue their association. Making agreements long and/or onerous only encourages owners to seek legal counsel. More often than not, it results in disputes and runs up legal fees. Or, worse, the person refuses to sign the agreement and simply pushes their way into the pool area.

RECOMMENDATION: If you have concerns about your particular release, you should discuss your concerns with the board. If you cannot resolve them at that level, you may need to seek legal counsel. If the release is balanced, the board is justified in requiring it during the COVID-19 crisis.

Face Coverings. Governor Newsom recently mandated the wearing of face masks. I live in a gated community where few people are wearing a face mask. Are gated communities exempt from the mandate or should boards be enforcing it? -Roberta C.

RESPONSE: Technically, the
June 18 directive regarding face coverings came from the California Department of Public Health (CDPH). The directive is not the model of clarity. The heading does not state "Order," but rather, "Guidance" for the use of Face Coverings. It updates and links to an existing CDPH guidance which mandates that face coverings be worn. However, when you follow the link to the original document, it specifically states that "It does not mandate that face coverings be worn statewide."

When to Wear Masks. Putting aside poor drafting of the new directive, the Health Department intends for everyone in California to wear face masks. When you skip down to the guidelines, they pertain to "the general public when outside the home" who find themselves "in high-risk situations." It then defines those situations as standing in lines, being in indoor public spaces, riding on public transportation, interacting with any member of the public, etc.

Target Audience. The directive is aimed at the general public, not common interest developments. Accordingly, persons living in HOAs are not required to wear masks unless they are in a high-risk situation in the common areas. If someone is not wearing a mask in the common areas, the association is not obligated to intervene on behalf of the State nor does it have the jurisdiction to do so. Associations are not the policing arm for the State of California. They have no authority to enforce CDPH directives aimed at the general public. Nor does the State have authority to enforce rules adopted by the board. Each is a different entity with different jurisdictional authority.

RECOMMENDATION:
If an association wants to require face coverings in the common areas, the board should adopt and publish emergency rules requiring them. Boards can then enforce their own rules (not the State's directives) with hearings and fines. If the State were to specifically order associations to require all residents wear face masks in the common areas or face $1,000 fines, then, and only then, does the order affect associations.

Deactivate Key Fobs. My association deactivated our fobs so we can't use any of the facilities. They will only reactivate them if we sign a waiver releasing the HOA, board, management and attorneys of any liability. These waivers will remain in effect going forward...so if I don't sign I can never use the facilities. Can they do that? -Meyeram

RESPONSE: Deactivating key fobs and requiring a hold harmless agreement to use the facilities can be justified during the COVID-19 crisis but not otherwise. Once the crisis passes, I don't believe boards can continue to require a signed hold harmless agreement to use the facilities. The alternative is to keep all facilities closed until Federal/State/County/City authorities declare the pandemic over so it is safe to use the facilities. When that might happen is anyone's guess.

Reduction in Assessments. If a state, county or municipal government rules that condo pools can be open but the board keeps them closed, can owners demand a reduction in their monthly fees for loss of services? We pay for the use and maintenance of pools, they are declared safe to open, but we are denied their use by a whim of the board. What recourse do owners have? -Louise H.

RESPONSE: You can demand a reduction in fees, but the board is not obligated to provide it. In fact, the board may need to increase your assessments to meet the particular requirements of your County's health department for reopening your facilities. Some Counties are being particularly demanding in their requirements, making it impossible for smaller associations to satisfy them unless they hire staff/vendors to continually wipe down surfaces and regulate how many people can use the facilities.

The phased reopening of recreational facilities and clubhouses (and businesses) is a mess. That's why boards need to consult legal counsel. Doing so satisfies one of the three elements of the Business Judgment Rule, thereby protecting directors from personal liability.

 

NorCal Counties. Alameda County now permits indoor and outdoor religious and cultural ceremonies, First Amendment events, outdoor dining, outdoor fitness classes, outdoor museums, outdoor historical sites and publicly accessible gardens, dog parks, college sports.

The following counties have opened personal care services: Butte County, Calaveras County, Madera County, Mono County, Monterey County, Placer County, San Mateo County, Santa Cruz County, Shasta County, Solano County, and Yolo County.

Mendocino County opened personal care services, made revisions to school reopenings, clarified that industries opened by Statewide guidance, but not specifically identified in Health Officer orders, are still permitted to reopen. It revised the transient lodging provisions, clarified outdoor religious services and protest guidelines. Public and shared pools are permitted to allow pool-based physical therapy or exercise (as recommended for health reasons) for up to 12 individuals at one time with social distancing.

Napa County now allows for personal services to open. Sacramento County opened personal care services. San Joaquin County now allows wineries, gyms, and personal care services. Sonoma County now allows all sectors allowed to open under State guidelines. Sutter and Yuba Counties expand the opening or personal care services, but limit the number of people allowed at faith-based gatherings and protests.

Tuolumne County now allows expanded personal care services. El Dorado County is not providing updated approval for sectors to reopen. Once sectors have been opened by the State, those sectors can reopen after developing and implementing a safety plan that follows State guidelines.

Lake County has opened personal services. Marin County will be reopening indoor dining, hair salons/barber shops, nail salons, hotel/motels/short-term rentals, and gyms/fitness studios beginning June 29.

SoCal Counties. Los Angeles County opened personal services, wineries and bars. The City of Los Angeles updated Safer LA order dated 6/20, aligning with County additions of personal care establishments, wineries and bars. Orange County revised health order on June 18, 2020, requiring facial coverings pursuant to State guidelines.

Updated Chart. For a list of County restrictions and links to Health Department Orders, see County Chart 6-23-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.

 

Adrian, I so enjoy the wit & wisdom you consistently share in the Newsletter. Best regards to you and your staff. -Pam L.

The newsletter is informative. -Mary H.

Your newsletter is a great resource! -PK

Records Retention. Enjoyed your response about the cost to convert records to stone tablets. Where is the line between long enough and "... nobody in their right mind would want to keep HOA records that long." -George H.

RESPONSE: This is where boards should adopt a records retention policy. It provides a guideline on how long to keep records and how to properly dispose of them.


 
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 associations only.

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