No Experience President
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  California's Leader in Community Association Law June 5, 2020
NO EXPERIENCE
PRESIDENT

QUESTION: Are there any prior experience requirements for selecting a president? We have no such requirements in our community’s documents. However, an association member heard that there may be legal code requiring a person to have at least a year of experience serving on the board in order to be selected as president. Is this true? -L.J.

RESPONSE: No, it's not true. There is no statute requiring prior experience for a director to be selected as president. A homeowner can innocently volunteer to serve on the board, be elected, and minutes later be sentenced by fellow directors to serve the next twelve months of their life as president. Those so appointed find that time suddenly slows to a crawl. The only real requirement to be president is the person should be breathing. Sometimes, even that can be waived if an association can't find volunteers.

San Diego. It would be most appreciated if the San Diego County Health Department would allow HOA pools to be re-opened (within conditions and guidelines) without further delay. Our 55+ community is supported by 1,789 residences. A great many of these seniors depend on the swimming pool as a necessary form of exercise for their health and well-being. -Karen

RESPONSE: For some reason, Nick Macchione and Wilma Wooten have forgotten the health needs of seniors. Residents should contact their County Supervisors,, as well as Macchione and Wooten and ask for their consideration.
Nick Macchione, Agency Director
Wilma Wooten, Public Health Officer
Health and Human Services Agency
3851 Rosecrans Street
San Diego, CA 92110
(619) 542-4170
Fax (619) 542-4186
Hold Harmless Agreement. Can we have our homeowners sign a waiver to use the pool? The protocols are impossible for a small property like ours. We have no money to hire a pool monitor, janitor or cleaner to stand by every time someone uses the restroom at our pool. -Jill

RESPONSE: As you pointed out, the requirements of some Health Departments are impossible for small associations to comply with. A few Counties have been reasonable and rational, while others are not. If a small association cannot meet the requirements and the board decides to open their pool anyway, you should at least have your members sign an acknowledgement and release. Talk to your association's legal counsel for guidance.

Sign in Window. My daughter put a "Black Lives Matter" sign in her bedroom window, which is located in the rear of our unit. I received a call from our HOA president asking me to take the sign down because the unit behind me is in the process of listing their unit for sale and they think the the sign could ruin their sale. Am I in violation by allowing my daughter to display a sign in her window? -Alan S.

RESPONSE: No, you are not in violation. Associations cannot prohibit political signs, posters, flags or banners on or in an owner's separate interest. (Civ. Code §4710.) If the buyer is offended by your daughter's sign, he/she is probably not a good fit for your association and should look elsewhere for a unit.

Paperless Requirement. Thank you for your newsletters, the best of all produced! In real estate, we are restricted on the use of paper and all transactions are paperless using digital signatures. Does the same restriction hold true for HOA and board business? -Erny P.

RESPONSE: No, there is no requirement that associations stop using paper. Even so, many management companies are steadily moving away from paper. Paper records are expensive, especially when it comes to archiving records. It is much faster and less expensive to transmit electronic records and store them.

Electronic Distribution. Since the start of the pandemic, I've distributed 1.2 million newsletters. Can you imagine the cost in paper, envelopes, postage and man-hours if our firm had not moved to electronic newsletters? Management companies and boards have increasingly solicited homeowner email addresses so they can distribute notices and records via email. With the pandemic, electronic distribution is safer than paper. I expect the trend to electronic records will accelerate.

Legislation. Currently, the legislature prohibits electronic transmission unless owners agree to it. This should be reversed. The Davis-Stirling Act should be amended so electronic distribution of notices and documents is allowed unless the recipient requests otherwise. 

Delinquent Owners. When a homeowner fails to pay their monthly assessment, they often blame management because they did not receive a bill. Is that a legitimate excuse for not paying?  -V.

RESPONSE: If, prior to the start of a new fiscal year, proper notice of assessment obligations is given to owners, they are obligated to make payments without further notice. Monthly statements are reminders. It's like paying your mortgage. If you stop paying because you didn't get a reminder, you could lose your unit. Even so, associations should be diligent getting those reminders to owners.

Wearing Masks. Can the board make wearing a mask mandatory once you walk out your door (must wear in hallway, elevator even if no one else is around) and issue fines for those not in compliance? -Geraldine P.

RESPONSE: Yes, boards can adopt emergency rules requiring the wearing of masks. I see this most often in highrise condominiums. They are more sensitive to the spread of the coronavirus and have onsite staff and surveillance cameras in elevators to help enforce the requirements. Also, owners in luxury highrises are often in high-risk categories and want the restrictions in place. Such requirements can be lifted as the threat of contamination lessens.

Problem Patty. We have been working with our legal counsel to review and revise our election rules to comply with SB 323. Our legal counsel advised that based on the new election timeline we would need to push our annual meeting back two months. Now we have an irate member (a regular "Problem Patty") who submitted her candidate form, threatening to sue every board member. She claims the board is engaged in corrupt election conduct aimed at preventing her from running for a seat. What protection do board members have against this type of action? -D.D.

RESPONSE: Annual elections have been disrupted by two disasters. The first is SB 323, which significantly increased election timelines and related costs. The second is the pandemic. If Problem Patty wants to waste a judge's time with a lawsuit claiming a two-month delay is a conspiracy against her, she will be in for a rude awakening. You should continue working with legal counsel to implement SB 323 election rules and then follow them as closely as possible. Otherwise, Problem Patty will look for an excuse to sue if she loses her election to the board.

 

Updated Chart. Our chart of facility openings, County by County, will be updated over the weekend and posted on our website. If readers are aware of changes to their County's orders, please contact us.
 

Concerning a moth infestation, perhaps swatting them all day could be another way for entertainment during these isolated days. I think we are in a bunker already but have hope for the future. Thank you for your daily newsletters and your sense of humor during these trying times. -Gloria

No, no, Adrian. Water turning into blood comes before the frog invasion. -Neal

RESPONSE: Followed by a Presidential election. This year will be one for the history books.

I always appreciate receiving your bread & butter newsletters. The advice is practical and easy to understand for my boards. Over the years, I have pointed to your newsletter more than once as the definitive answer on some hotly disputed subjects. -V.


 
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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