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  California's Leader in Community Association Law April 22, 2020
BOARD MEETING
QUESTIONS

Meeting Notice: We have a 55+ community that includes sophisticated computer techies to unsophisticated landline-only individuals. What are the requirements for giving notice to everyone. We have about 70% of our owners on a eBlast list. -Bob C.

RESPONSE: Meeting notices may be given by any of the following methods: (i) in a billing statement, (ii) by email, fax, or other electronic means--if the recipient consents to that method of delivery, (iii) by first-class mail, (iv) in a newsletter, or (v) posted in the common areas.

Posting Plus Email. If you post your notice in a prominent location in the common areas, you have fulfilled your notice requirements. That means you don't need everyone's consent to use their emails to give a supplemental notice. Once you post notice of the meeting, you can send an email to the 70% of your membership who provided their email addresses. Be careful to use a service that does not expose everyone's email address to everyone else.

Protect Email Privacy. When Marjorie Murray's Center for Homeowner Association Law sponsored SB 323, they exposed everyone's email address to all other owners. While
encouraging the other 30% of your membership to provide their email addresses so they can receive notices and documents, make sure they opt out of sharing their email addresses with others.

Censured Director. In a dozen years managing HOAs, thankfully, I have only come across the need for an “official” censure on two occasions and, each time, I’ve wondered whether I was giving the best recommendation to the board for recording the censure. -Jason M.

RESPONSE:
The purpose of a censure is twofold: to curb bad behavior and to limit potential exposure of the association to legal liability. It's not often I recommend censuring a director. There are generally two instances when it comes up. The first is when a director is abusive with other directors, homeowners, staff or vendors. The second is when a director discloses confidential information, interferes with a vendor's contractual obligations, defames a vendor, etc. Depending on the particular instance, I might recommend the censure be recorded in the executive session minutes only. In other instances, it might go in the open meeting minutes. 
 
RECALL MEETING
QUESTIONS

Recall Petition. If a valid petition is circulated for whatever reason, can board members sign or is that not allowed? Also, can board members create and circulate a valid petition? -Tara B.

RESPONSE: Yes, board members can both initiate and sign a recall petition. I've had boards initiate recalls of abusive or untrustworthy directors. Unfortunately, if the association has cumulative voting, the recall effort is very difficult. A handful of an abusive director's friends can block a recall even if a majority of the membership wants the director off the board. That's why I advise all associations to amend their documents to remove cumulative voting.

Recalled Director. Can a previously recalled board member run in another election? Or does the recall status disqualify them? -Linda D.

RESPONSE: A recalled director can run again. Because of SB 323, you can no longer prevent that from happening.

Recall Termination. I manage an association that may have the entire board recalled. The existing board gave our company a termination notice. Can the board terminate our services during a recall? And, can homeowners who are delinquent sign the recall petition? -Kate W.

RESPONSE: If they follow the terms of the contract, the board can terminate management services and hire another company. There is no guarantee the board will be recalled, which means boards can continue to function for as long as directors are in office. It has been my experience that most recalls fail unless the board has been particularly egregious in its behavior. Yes, delinquent owners can sign petitions.

 
ANNUAL MEETING
QUESTIONS

Trustee Eligible? I read with interest your response regarding a spouse not being eligible to serve on an HOA board if she is not on the title. What if the property is in a trust and the spouse is the beneficiary? Is she eligible to serve? -Lori R.

RESPONSE: The spouse on title as trustee is the only one who can serve on the board. Because of SB 323, the beneficiary spouse can longer be elected to the board.


No Quorum. Our annual meeting took place in February. We did not meet quorum so it was pushed to March. In March we still did not reach quorum. Now we are in April without a quorum. How can we count ballots if we cannot gather together? Are we still required to have a teleconference meeting even if we don’t have a quorum and even if there isn’t enough important information to make the effort? -Jim M

RESPONSE: Without quorum, there is no point in meeting. To make quorum, you need to plead with owners to mail in their ballots (which is why I recommend amending your bylaws to eliminate quorum). Since the only real business conducted at an annual meeting is the election of directors, you could skip the meeting portion of the election and go straight to the counting of ballots. Once you hit quorum, your inspector can video the opening of ballots and tabulating votes. The recording can then be posted for members to view. This allows you to hold your election without violating social gathering restrictions. Having said that, teleconference meetings are not that difficult to hold. You should try it.

 
MISCELLANEOUS

Two Signature Rule. Your answer “Yes,” to the question about having only the treasurer sign checks during the COVID-19 Pandemic was rather cavalier. Where does it say that the two-person rule can go away? -Jim K.

RESPONSE: The two-signature rule applies reserve funds, not operational checks. (Civ. Code §5510(a).) The reader asked about operational checks.

Americans With Disabilities Act. Could you please elaborate on how the ADA does not apply to associations? We've had at least one expensive mediation regarding parking and ADA. In the nine months I've been on the board we've had two additional situations arise where ADA was cited in the board-level discussion. -Anonymous

RESPONSE: There are two primary areas of law addressing disabilities, the Americans with Disabilities Act and Fair Housing laws. The ADA applies to public businesses and facilities, which is why it does not apply to homeowner associations. There is an exception. If an HOA invites the public into the development, it must make those areas used by the public compliant with ADA requirements. For example, if an association allows its clubhouse to be used as a polling station, the clubhouse, as well as its restrooms, must be wheelchair-accessible. Reasonable accommodation issues, most often involving parking and emotional support animals, fall under Fair Housing laws.
 

We love your newsletter! It surely should be read by every board member. -Roswitha M.

“Blood on the walls...” lol. I am a huge fan of whomever wrote this letter. So appreciative of your candor, professionalism and solid communication. -Nicole

Your response about pandemic county orders is creating confusion about board authority versus county health department directives. I thought it was clear as day. You should have made fun of her!! LOL!! (just kidding) -Stephen J.

RESPONSE: The confusion over jurisdictional limits is genuine, including lawyers not familiar with CIDs. I think the ones who are most confused are legislators. I will cover this a bit more in another newsletter.

I am amazed at all the people who feel cooped up in their homes due to the coronavirus. Just another indication of how society has changed over the past 20-30 years. We seem to be unable to be happy just "being." What a great opportunity to clean out all the clutter in our homes; read a few good books; connect with family and friends via phone or e-mail. In general, just being happy! I like your idea of allowing singing together while maintaining distance. It shows that some people are being creative. Lets have more (distanced) creativity and less grumbling!! And yes, lets get rid of this ridiculous bill passed by the legislation suggested by Mrs. (Nutso) Murray. -Sue M.

In regards to Ms. Marjorie Murray’s disaster (SB 323). As disgusted as I am with it, I feel in a way she is receiving a lot of bad press that she is not fully entitled. I encourage the next time the campaign starts to repeal this monstrosity, instead of sitting on their butts and wait for someone else to write a letter to their senator or assemblyperson, write the letter themselves and email it to their legislator and let the know how negatively SB 323 has affected their lives, then they will have a huge impact. The inaction of the people is very disheartening. -Don C.

RESPONSE: When it's time, we will alert everyone to a call to action.


 
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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