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  California's Leader in Community Association LawOctober 18, 2020
NO OPEN
BOARD MEETINGS

QUESTION: We are currently holding executive session meetings only. Our clubhouse isn't big enough to hold open meetings for 112 members and still maintain social distancing. We tried explaining this members but they aren't having it. -Ed H.

RESPONSE: I agree with your members--you should hold open board meetings. Boards throughout California have been doing it for the past six months via video conference. You don't have to worry about social distancing since all 112 members can attend without leaving their units. Here are some links to videos on how to hold Zoom meetings.

    1. How to Use Zoom Video for Meetings
    2. Seven Zoom Meeting Tips

You can find guidelines for holding virtual board meetings here: Online Meeting Guide.

Special Assessment. Our HOA will be voting on a special assessment. One of the board members sent a letter to all owners encouraging them to vote for the assessment. Is this allowed? He claims he did this as a homeowner, not a director. –Marie S.

RESPONSE: Board members can campaign for a measure, provided they do so at their own expense. I
f they don't use association media or resources, the entire board could send a letter advocating for a special assessment. If they were to use the association's newsletter or website to urge approval, they would be required to provide equal access to members advocating a different point of view. (Civ. Code §5105(a).)

Entity Ownership? Our CC&Rs state that only a natural person, not an impersonal entity, can own a separate interest. In the Murray election rules, it has a clause that allows impersonal entities. Can we remove that to correspond with our CC&Rs? –Georgeann H.

RESPONSE: The statute does not require associations to allow ownership by impersonal entities. It merely states that if title is held by a legal entity that is not a natural person, the entity can appoint someone as a candidate for election to the board. (Civ. Code §5105(b)(2).) On the larger issue of ownership, I don't know that you can prevent an impersonal entity from owning property. It would likely be deemed an unreasonable restraint on alienation. You should have your association's legal counsel provide an opinion on this issue.

Communicating with Tenants. My neighbor rents out her condo. Our management company says that under no circumstances can it communicate directly with the tenant, but all communications must go through the owner. That makes no sense to me. Seems the association would have a right to communicate with the renter for certain things. –Mar

RESPONSE: There is nothing in the law barring associations from communicating with tenants. Many adopt a policy of only communicating with the owner but there are times when it's appropriate to contact the tenant. On many occasions I've written demand letters to tenants with a cc to the owner and followed up with a separate letter to the owner threatening to sue the owner if he didn't get his tenant under control.

No Insurance. For most HOA insurance, pandemics are excluded on coverage. Riders are not offered either. What should HOAs do if a resident contracts COVID and sues? -Bette M.

RESPONSE: When sued, always tender claims to insurance and provide your association's legal counsel with a copy. He/she will need to calendar the deadline for filing a response in case your insurance carrier is slow to respond or denies coverage. If coverage is denied, your association will be paying out of pocket to defend against the claim. This explains why some boards keep their facilities closed. They don't want to risk getting sued.

Resignation. One of our directors resigned. I nominated a past board member. The nomination was seconded. One director voted no and the president abstained. I was told it did not pass because the president abstained. Can you confirm this please? -Cheryl G.

RESPONSE: With four directors in your meeting, you need three affirmative votes to pass a motion. You only received two votes, which means the motion failed. If the president had remained silent when the vote was taken, it could have been counted as silent acquiescence and your motion would have passed.



Trump Flag #1. The picture of a Trump flag is contrived — it's not a picture of one flying in an association. -Jeff B.

RESPONSE: It's real and was hung on a wall. The photo was sent by a reader along with the question about offensive language.

Trump Flag #2. I take offense that you only used a Trump sign — what about similar Biden signs? -Joan M.

RESPONSE: The reader did not send a Biden sign. If he had, I would have used it and the answer would have been the same.

Trump Flag #3. It would be good to note that NOBODY has a "right" to not be offended. It's kinda at the heart of our 1st Amendment guarantees and is among the foundations of the Declaration of Independence and the Constitution. –Fred C.

RESPONSE: With radical elements putting graffiti on walls, sidewalks and streets, and people putting election signage on cars and lawns and in windows, these are exciting times for those who are easily offended. As you pointed out, being offended is not a basis for destroying free speech rights.

Trump Flag #4. This must be a misprint: “To avoid stress, drive with your eyes closed"??? -Christine H.

RESPONSE: Smile.

Trump Flag #5. Is there a limit on the number of political signs that can be displayed? Can the HOA limit the number of signs to one per candidate? Civil Code §799.10 states that mobile homes can display a political sign (singular) but Civil Code §4710 uses signs (plural). –Ray M.

RESPONSE: I think boards can set a reasonable limit on the number of signs, but not everyone agrees with me and they may be right. Filling your yard with one candidate's signs could be a form of speech. It reflects enthusiasm for a candidate. The only case I'm aware of deals with limitations on commercial signage. (Fourth La Costa v. Seith.) At this point, I recommend letting people display as many signs as they want. The election is only 16 days away. After that, things can return to normal(?).

AB 3182 #1. Does AB 3182 affect the enforcement of 55 and over senior associations? Currently our association prevents the purchase by individuals that do not meet our minimum age requirement of 55. –Ron G.

RESPONSE: As long as the legislature is out of session, your age restrictions are valid. Once the legislature reconvenes, it's anybody's guess. The stream of bad legislation coming out of Sacramento is truly distressing.

AB 3182 #2. If our governing documents prohibit an Airbnb situation and the only difference I can see with the new legislation is we will need to allow 25% rental/leases instead of the 20% stated in our CC&Rs, do we still need to come up with new rules? -Polly B.

RESPONSE: You don't need to do anything with your limitation on short-term rentals. You will, however, need to amend your governing documents to conform to the 25% requirement.

Kudos #1. Once again you have made my Sunday. Thank you for your letter. -Bill B.

Kudos #2. Thanks for sending this excellent resource. -Alice M.

Kudos #3. Your newsletter is my very favorite. What would board members do without it?! You’re brief and to the point; yet cover just about everything we need to know. Thank You! Thank you! -Ros M.

Kudos #4. As a past board president, I cannot thank you enough your enlightening newsletter. –Rebecca B.


NorCal Counties. The CDPH has issued new guidance for private gatherings which has been added to the chart.

The following Counties have changed Tiers: Alameda (Red Tier to Orange); Colusa (Purple Tier to Red); Kern (Purple Tier to Red); Kings (Purple Tier to Red); Placer (Red Tier to Orange); San Benito (Purple Tier to Red); Santa Clara (Red Tier to Orange); Sierra (Orange Tier to Yellow); Stanislaus (Purple Tier to Red); Sutter (Purple Tier to Red).

Alameda County issued a press release re: Orange Tier after moving to the Orange Tier. The County noted that Orange Tier activities allowed to open will not yet be opened and noted that they are working to update the Health Order to allow for the following activities: indoor dining, worship, and theaters at 25% capacity or fewer than 100 people, whichever is less; indoor retail and malls at 50% of capacity and limited food courts. Beginning October 16, outdoor activities, including playgrounds, will be allowed following State guidance. The County also released guidance for the arts community and a Joint Statement of the Bay Area Health Officers urging flu shots.

Butte County issued a tip sheet for celebrating Halloween. Butte County noted that schools are now allowed to reopen for in-person instruction following the State’s guidance.

Contra Costa County issued new Openings at a Glance which has been added to the chart. They also issued recommendations for safe voting and a Joint Statement of the Bay Area Health Officers urging flu shots. The County noted that Elementary and secondary schools are allowed to open for in-person instruction without a waiver or permission; for more information, residents can visit the Schools and Childcare page.

Fresno County issued an Amended Order effective 10/9/20. They have also linked to the CDPH Guidance for a Safer Halloween and Guidance for Private Gatherings.

Madera County has posted the CDPH Guidance for safer Halloween and gatherings (which has been added to the chart). The County noted that Elementary School waivers were approved for: Chawanakee, Chowchilla Adventist, ETAA Charter Golden Valley, St. Joachims.

Marin County issued Joint Statement of the Bay Area Health Officers urging flu shots.

Mono County/Town of Mammoth Lakes issued Guidance for Halloween and Dia de Los Muertos Celebrations.

Napa County linked to the CDPH Guidance regarding gatherings, which has been added to the chart. They also updated their business FAQ sheet, which has been updated on the chart.

Nevada County issued Halloween Guidance.

Placer County moved from the Red Tier to the Orange Tier.

Sacramento County has a new Order. The new Order indicates that all grade levels are permitted to conduct in-person instruction with measures in place and also updates to align with the new CDPH gathering guidance.

San Francisco issued a press release announcing reopening of playgrounds.

San Joaquin County has a new Order that implements the directives from CDPH on gatherings.

San Mateo County issued Halloween Guidance and the Joint Statement of Bay Area Health Officials Urging Flu Shots.

Santa Clara County has a new Risk Reduction Order and issued a press release indicating the impact of that order and businesses now permitted to open: Santa Clara County Press Release re Orange Tier. Santa Clara County issued the Joint Statement of Bay Area Health Officials Urging Flu Shots.

Santa Cruz County issued a press release regarding guidance for private gatherings and the Joint Statement of Bay Area Health Officials Urging Flu Shots.

Solano County linked to the CDPH Guidance for Private Gatherings.

Sonoma County issued guidance for Halloween and Dia de los Muertos.

Stanislaus County moved from the Purple Tier to the Red Tier.

Sutter County moved from the Purple Tier to the Red Tier.

Tehama County issued a press release related to the move from the Red Tier back to the Purple Tier: Tehama County Press Release dated 10/7/20.


READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 10-15-20. The chart is also posted on our website.


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 hire us. It's okay, we're friendly. You can talk to us. Keep in mind we are corporate counsel to California associations only.

Contact us to amend your governing documents to comply with rent restrictions required by AB 3182.


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