We received a large number of emails asking if associations can ignore county orders closing their swimming pools, gyms, tennis courts, etc.
Defying Orders. Associations that defy health department orders are subject to fines up to $1,000 per violation. As noted in Friday's newsletter, if the state, county or city is silent about a particular amenity — tennis courts, for example — boards of directors can adopt their own guidelines. Boards might close their tennis courts entirely, or allow singles play but not doubles, or not restrict the facility and leave it to members to follow CDC guidelines.
Charting Closures. Because counties throughout California have differing directives, two attorneys in our office, Megan Hall (NorCal) and Jason Savlov (SoCal), put together a chart of county health directives affecting associations. Finding applicable directives has been challenging. Some of the information is buried deep in county websites. If readers have access to information we don't have displayed, please let us know.
Our chart covers pools, tennis courts, golf courses, beaches, hiking trails, parks, barbecues, dog parks, and more. We also include links to the particular orders. We will publish an updated chart with each newsletter so readers know when they can open facilities. See County Orders as of 4-25-20.
Guidelines. When civil authorities loosen restrictions, boards will need to be careful to find out if guidelines are attached. For example, last week when Riverside County reopened golf courses, the health department included the following guidelines:
• Play shall be limited to foursomes. Players will be required to observe a six-foot separation at all times.
RECOMMENDATION: Boards should pay close attention to health department directives and loosen restrictions as appropriate. If they are uncertain how best to proceed, boards should seek legal counsel.
• No caddies are permitted.
• No large gatherings, including fundraisers or tournaments, will be permitted before June 20.
• Face coverings, such as scarves, bandannas and neck gaiters, shall be worn by players and workers.
• No in-person dining will be allowed at clubhouses.
QUESTION: We have a tenant who placed a political sign in his window. I’m not completely opposed to their choice in candidates but it not only looks tacky, I’m concerned neighbors will toss rocks at the window. -Jamie P.
ANSWER: They say disasters come in threes. First was SB 323, then the coronavirus, next will be an accelerated election season with lots of heated rhetoric. Although associations can prohibit signs in the common areas, they cannot prohibit political signs, posters, flags or banners on or in an owner's separate interest. (Civ. Code §4710.)
Exceptions. Associations can prohibit (i) signs made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces, and (ii) signs or posters more than nine square feet in size or flags or banners that are more than 15 square feet in size. (Civ. Code §4710.) In addition, signs, posters and flags displaying obscenity or fighting words can be restricted.
Time Limit Restrictions. Associations can also set reasonable time periods for displaying political signs. Many cities have regulations requiring the removal of signs between 5 and 15 days after the election. Some also limit the posting of political signs 45 to 90 days before an election. Associations can adopt similar restrictions in their rules and regulations.
Number of Signs. In addition to the above limitations, associations can regulate the number of signs displayed. (Fourth La Costa v. Seith.)
RECOMMENDATION: If boards have not yet done so, they should adopt rules regulating signage. A political pandemic is just ahead and preparing for it will help boards make it through without too much damage. Contact us if you need assistance.
THE ROLE OF
Manager Advice. Is it true that if we don't follow the advice and counsel of our manager, board members could become personally liable? -George B.
RESPONSE: It is not necessarily true, but it can be. Boards are responsible for managing their associations. Managers are agents who take direction from the board. Manager recommendations are valuable because managers are familiar with industry standards and practices and provide insight for boards on how best to manage their communities.
Certified Managers. If managers are certified, it means they have taken classes on proper financial and management practices. Part of the certification includes classes on the Davis-Stirling Act, which means they have a working knowledge of many, but not all, laws affecting associations. If a board is about to take an action that could have significant legal consequences and the manager advises the board to seek legal advice and the board ignores that advice, the board could find itself embroiled in litigation. Discovery will bring out the fact that directors ignored the advice.
Business Judgment Rule. To avoid personal liability for their decisions, directors must follow the Business Judgment Rule and make decisions that are (i) in good faith, (ii) in the best interests of the association, and (iii) with reasonable inquiry. If a board is warned to seek legal counsel and chooses not to, directors fail the third element of the Business Judgment Rule. That could expose them to personal liability. (Palm Springs Villas v. Parth.)
RECOMMENDATION: Pay attention to managers and make sure you seek advice from experts in their fields when appropriate — legal counsel, certified public accounts, architects, engineers, etc.
Parking Rules. We have a street that, until 2019, we thought was a private street. It turns out to be a city street. Since 1972 we have enforced street parking rules on this court. The management company we hired in 2018 said we cannot enforce HOA parking rules on a city street. Is that true? -Jeff R.
RESPONSE: No, it's not true. You should not be taking legal advice from a management company. Doing so could cost you the protections of the Business Judgment Rule. As noted above, managers are good at raising red flags so boards know when to seek legal counsel, but they should not be the ones giving legal advice. See "Managers Practicing Law." When it comes to enforcing parking rules on public streets, see "Public Street Rules Enforcement."
Thank you, and I love your newsletter! -Kathy S.
Thank you for your continued updates during this trying time. Hope all your loved ones are healthy and safe. -Joyce B.
Thank you for your exceptional newsletters. I read and save every one, and forward them periodically to other board members when they have articles of immediate relevance. -Stephanie C.
Thanks again for your fantastic newsletter. -Dave K.
A neighbor at my condo forwarded your newsletter and I signed up. It’s very informative. Thank you. -Tanya C.
In today's newsletter you mentioned "if someone walks their dog without a face mask, the association does not have the authority to impose a $1000 fine...." I appreciate this comment. I have been trying for weeks to find a face mask for my dog to no avail. Many sites say they have them but they are scams. My dog has looked at several masks on the internet but shook her head to indicate that they were not the masks for her. Thanks for your informative newsletter. -Peter L.
|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.