Membership Safety & Welfare
Adams Stirling PLC
  California's Leader in Community Association LawJune 19, 2020

The coronavirus has highlighted the role associations play in protecting members from harm. I received a number of emails asking about potential liability if boards open their pool facilities and someone gets ill. Others asked about general safety and security obligations. Following is an example:

QUESTION: In your June 11 newsletter, you commented on the board’s duty regarding the safety and welfare of the membership. We are often told that associations are not responsible for the safety of residents when it comes to crime. What about the safety of residents offered by preventive maintenance of the common areas? -Jeff F.

RESPONSE: It's true that associations are not normally liable for the criminal acts of others. However, they can be. Associations have a duty to exercise due care for the safety of residents and can be liable for any failure to take reasonable steps to protect residents from foreseeable criminal activity.

Health & Welfare. Most HOA governing documents have a provision giving the association, through its board of directors, broad authority to adopt rules and policies for the general health, welfare, and security of members. Adopting rules prohibiting glass containers and alcohol in the pool area, and requiring adult supervision of minors are examples of rules designed to protect residents. Closing recreational facilities due to the coronavirus is another example.

Maintenance Obligations. In addition to general safety concerns, associations have an obligation to maintain the common areas. If an association fails to maintain lighting, fix sidewalks, and repair roofs, it can be liable for harm to persons and property that results. Poor lighting and uneven sidewalks can lead to trip-and-fall injuries. Water leaks can cause property damage as well as personal injury from mold. When that happens, lawsuits are frequently filed.

Reopening Facilities. The reopening of facilities during a pandemic has caused a great deal of concern for boards of directors and law firms alike. The State recently issued guidelines for reopening facilities. Some Counties supplemented those guidelines with requirements of their own. In some cases, County guidelines are recommendations only. In others, they are requirements. The worst ones are the those that are unclear. Are they recommendations or requirements? What are boards obligated to follow?

Pressure to Open
. Members have been pressuring boards to open swimming pools, hot tubs, gyms and tennis courts. Can boards open facilities when they don't have the staffing to implement guidelines that might be requirements, but no one knows for sure? To avoid potential liability, the safest course of action is to keep everything closed. Unfortunately, that may not be practical. Members have been breaking locks on gates and forcing their way into pool areas and tennis courts. Some are threatening to sue directors if facilities aren't opened.

Hold Harmless Agreements
. Boards are struggling to balance demands to reopen, health concerns, and potential liability of the association. Many boards have opted to open facilities by taking steps they deem reasonable and practical. In addition to adopting emergency rules and posting guidelines for members to follow, boards are working with legal counsel to implement hold harmless agreements. Residents who wish to use the facilities must sign the agreement. Otherwise, they cannot use the facilities.

RECOMMENDATION: Because health directives seem to change daily and many are unclear, boards should work with their association's legal counsel to adopt emergency rules related to the facilities and require members to sign a hold harmless agreement. The virus is still in circulation and members need to understand they are using common area facilities at their own risk. 

The State mandated the wearing of face coverings. It is clear to anyone who ventures from their house that many are ignoring the order. It will be interesting to see how the State intends to enforce the mandate, especially if they disband the police.

NorCal Counties. Contra Costa County is now allowing RV parks, outdoor recreational facilities, hair salons and barbershops to open. They also modified restrictions on outdoor recreation, religious and cultural ceremonies, outdoor dining, campgrounds and outdoor pools. Pools are now allowed to have one person per 75 square feet.

Mono County has a new order allowing campgrounds and RV parks, hotels, motels and other lodging if they follow State guidelines.

San Mateo County is aligning sector openings with State guidelines. Dine-in restaurants, hair salons and barbershops, casinos, family entertainment centers, restaurants, wineries and bars, zoos and museums, gyms and fitness centers, hotels, cardrooms and racetracks, campgrounds and outdoor recreation are now open.

Tehama County opened cosmetology services, esthetician care, facials, electrolysis, waxing, massage therapy, nail salons, skin care, and tattoo/piercing parlors.

SoCal Counties. Los Angeles County updated its order regarding pools to align with public pool protocols. HOAs can skip section A of the protocol requirements if there are no employees onsite. The City of Los Angeles released a Safer Los Angeles order to align with the County Health Order for approved reopened business sectors.

The City of Palm Springs canceled July 4th fireworks spectacular due to State restrictions on large gatherings. San Diego County issued a new health order with minor changes to clean up language including persons sitting at restaurant tables are not required to wear a facial covering.

The following Counties have officially approved openings of personal services on June 19: Riverside, San Bernardino, San Diego, San Luis Obispo. The following Counties are delaying reopening of personal services due to an increase in hospitalizations: Santa Barbara and Ventura County.

Updated Chart. For a list of County restrictions and links to Health Department Orders, see County Chart 6-18-20. 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.

Thank you for the very informative website and newsletter. -Jane M.

Our managers love your newsletters and find them very beneficial in understanding the larger concepts at play out there. Thank you for the humor and intellectual analysis of this often insensitive and contradictory industry. -Jeff F.

I enjoy your newsletters!! Your leadership and your commitment to fairness exceeds many. -Staci C.

Such a great newsletter--thank you! -Suzanne S.

I have been reading your newsletter for many, many years. I have found it very informative and enjoy the levity. I have also used the vast resources of your website on many occasions and am so grateful for having this resource. -Barbara M.

With the Covid crisis and confinement, everyone in our building and on the board seems to have gone a little crazy from stress. Thank you for the island of sanity we find in Adams-Stirling newsletters! -Robert L.

Cost of Conversion. With regard to storing old archives, you recommended digitizing documents. Our HOA has considered that a few times, however we haven't converted any due to the high cost of conversion from physical to digital. The monthly archive storage fee is cheaper than the associated cost to convert. Are you aware of any cheaper options? -Keri J.

RESPONSE: To save money, digitize everything moving forward. As for older records, dispose of those records according to your document retention policy and digitize any essential records. This allows you to make the conversion over time without incurring any significant costs.

Storing Records. Your response to the records storage question was excellent but I would like to add one more thing that might not be obvious to everyone. Whatever electronic mode you select, part of your procedure needs to be regeneration (copying) of the stored data on a periodic basis. Approximately every two years your data should be copied to a currently supported storage media, and the last two copies should be retained as back-ups. Cloud storage is great for information that needs frequent access but dependable from loss it is not. -Jim F.

RESPONSE: No storage solution is perfect. All have weaknesses. The benefits of cloud storage are (i) the ease of locating records, and (ii) the ease of disposing of older non-essential records. If you use cloud storage, there is no need to copy records every two years. Hardware and software are automatically updated by the storage provider.

Long Term Storage. Regarding document retention: paper/papyrus/hide/ kept under proper conditions = 300+ years; painting on stone in dry caves = 10,000+ years; chiseled in stone = 1,000,000+ years (depending on the stone and the depth of carving). -James S.

RESPONSE: I thought about including these in my article but the cost to convert records to stone tablets plus storage costs were quite steep. Besides, nobody in their right mind would want to keep HOA records that long.

Governing Documents. Thank you for your newsletter's continued education about what boards should know. It is my understanding that four documents are needed for a common interest development: (1) Articles of Incorporation, filed (once) by the developer with the Secretary of State; (2) Declaration of Covenants, filed (once) by the developer with the County Recorder; (3) Bylaws, not filed or recorded, address the governance of the association; and (4) Rules amended by boards as-needed. -Guy T.

RESPONSE: The documents needed to create a common interest development (CID) depends on its particular legal form. There are four legal structures for CIDs. Two of them do not require CC&Rs (stock cooperatives and community apartment projects). The other two (condominiums and planned developments) require CC&Rs. Except for a stock cooperative, articles of incorporation and bylaws are not required to create a CID. To learn more, see our CID Menu.

Term Limits. I thoroughly enjoy your newsletter! With SB 323, is it possible to include term limits in election rules, such as limiting board members to serving for 4 consecutive years? -Travis M.

RESPONSE: One of the many problems created by SB 323 is the nullifying of term limits. Restoring them is on the to-do list for CAI's California Legislative Action Committee (CLAC). Provided there is no interference from the Center for California Homeowner Association Law (CCHAL), it should be an easy legislative fix. Unfortunately, it's unlikely anything will be done this year due to the pandemic. Many associations are simply ignoring SB 323 and keeping term limits intact. As long as no one challenges the board's decision, there won't be any fallout. Unfortunately, SB 323 significantly increased the risk of litigation associated with HOA elections. This is one of them.

Boards can contact us for friendly,
professional advice.

Adrian J. Adams, Esq.
Founder & Managing Partner

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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