Owner Bad Behavior
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  California's Leader in Community Association Law March 31, 2020
OWNER BAD BEHAVIOR
AND THE CORONAVIRUS

Coughing & Spitting. A resident is coughing and spitting from their balcony. Is there any HOA responsibility? What are your thoughts? -A.S.

RESPONSE: A jail cell comes to mind. Is your association liable for the bad behavior of a resident? No. However, a strong letter from the association's attorney is in order.

Parking Lot Coffee. We have a group of regulars who used to sit in the clubhouse lobby and drink coffee and chit-chat. The clubhouse is now closed and they moved their meeting to the parking lot with their folding chairs and coffee mugs. There is never more than 6 or 7 of them and they all stay 6 feet apart. What do you think? Should we be patrolling the parking lots? -Jane F. 

RESPONSE: All you can do is advise people to behave responsibly. It sounds like they are following CDC guidelines. If you tell them to leave and they refuse, then what? I doubt the police will arrest them. According to news reports, the police are already letting real criminals out of their jail cells. Talk to your association's legal counsel and follow their advice.


Shoes in Hallway. We have an owner who is leaving her shoes in the hallway because she fears that bringing them into her unit will bring the Covid-19 virus into her home. The cleaning staff is complaining because they have to move her shoes to do their cleaning. The owner is a lawyer so the board is being cautious. -V.S.

RESPONSE: The board does not have to accommodate the lawyer's bad behavior. Leaving her shoes in the common area can expose employees and residents to the virus. She can put her shoes in a Ziploc bag before taking them into her unit. Or, she can throw them in the trash and wear new shoes each day. It would help the economy. 

Recreational Facilities. Our residents are getting restless. They are demanding the board open our recreational facilities and threatening legal action if they don't. -Fearful

RESPONSE: Some people are obviously not watching the news. The virus is expected to intensify over the next two to four weeks. It originated in China, yet it traveled around the world to our neighborhoods. How did it move so far so quickly? It did so through social contact. 

Surfaces touched by infected individuals spread the virus. The only way to stop it is to close all facilities and maintain social distancing until the virus is brought under control.  

State and County Orders. State and county health departments have ordered the closure of all facilities where the virus might be transmitted. The following is taken from one county website:

Can I leave home to exercise? If you will be outdoors and not in close contact with other people, yes. Fitness centers, exercise gyms, recreational centers, tennis clubs, golf courses, and public/private shared pools are not allowed to operate. 

Can I participate in or hold an exercise class outside if we stay in a group of less than 10 and practice social distancing? No. Public events and gatherings are not permitted under the Governor’s Order. 

Can I participate in recreational sports? Recreational sports, like basketball or tennis, being played on a court attached to a single-family home which is not shared by persons outside the residence, may be used by the inhabitants of the home only. Public Events and gatherings, like recreational sports occurring in a public park or on a shared court as part of a hotel/apartment/housing community, are not permitted under the Governor’s Order. 

Can golf courses remain open? No. Both public and private golf courses must be closed under the Governor’s Order. However, golf course maintenance and landscaping are considered “essential” public works and can continue so that golf courses will be able to resume operations once the state and local orders are lifted. 

Can private pools, like those in a gated housing development or apartment building, remain open? No. Both public and privately-owned shared pools must be closed, including apartment pools, hotel pools and neighborhood pools. Pools attached to a single-family home and not shared by persons outside the residence are permitted to be used by the inhabitants of the home only.

RECOMMENDATION: Boards should follow the orders posted by their County Health Departments. Everyone need to be patient. This will soon pass.

Rec Facilities & Insurance. Boards have an obligation to protect, preserve and enhance the assets of the community association. As you indicated, what about the tennis balls, etc., none of us are experts. When it comes to recreational facilities, I am far more comfortable relying on the strictest opinions of the various governmental admonitions and orders, than board members, or unit owners. Following experts will support the boards with the business judgment rule defense. If they open tennis courts, basketball courts, pickle ball courts, lawn bowling, they will not have any such protection. Moreover, in my humble opinion, I believe this would be a quick path to non-renewal of D&O insurance policies. Furthermore, insurance carriers will be concerned that if the boards are willing to make these extremely questionable decisions, what other decisions are they likely going to make? This could result in the significant increase for substantially weaker policies. -Joel W. Meskin, Esq., CIRMS, CCAL Fellow, MLIS, EBP, Managing Director Community Association Products, McGowan Program Administrators 

RESPONSE: Those who don't respect the virus should at least be concerned about insurance issues. 

Gate Keypad. We have a keypad at our front gate. We have 124 homes in our development and many people use it all day long. We have no way to sterilize it after each use. Should we open our gates? I am wondering about the board's liability in this issue. -Myrna B.

RESPONSE: There is only so much boards can do. People need to take responsibility for their own behavior. They can use a tissue to touch the keypad or use hand sanitizer afterward. If the board opens the gates, crime becomes an issue. I suspect residents would prefer to keep them closed. 

Brush Clearance. With respect to the question about a landscaper refusing to clear brush, maybe the association should rent or purchase a herd of goats to do the work. This is the ultimate social distancing. They may not be as quick as the landscaper, but I think the result is longer lasting. -Joel M. 

RESPONSE: Our firm represents a large association that rents goats for brush clearance. Besides being cute, they never threaten lawsuits. I like them. 

Davis-Stirling Extension? Do you think there will be emergency legislation to extend Davis-Stirling mandated time lines (budgets for instance)? -Wayne D.

RESPONSE: It's unlikely timelines will be extended. The legislature is preoccupied with other matters. Boards can, and should, continue their budget duties and other financial obligations. Everything can be done remotely (conference calls, Zoom meetings, etc.) so deadlines can still be met. 

Jogging Path. We keep our small jogging path open. It’s like a little nature hike. With all the public park trails closed, should we close our jogging path? -Chaya

RESPONSE: That's a tough one. I walk each day and maintain my distance from people. I don't know what your trails are like. Are they so narrow that people are forced into close contact? Or, can people pass each other safely? I don't know what to tell you. Your board should talk to legal counsel.

Taxes. While your advice to contact a CPA for tax filing advice for the association was spot on, the original question contained faulty information. While paying taxes was extended to July 15, everyone must still file their returns by April 15. Didn't want individuals reading this letter to think they could not file tax returns. -Bob I.


Riverside Taxes. I called Riverside County Tax Collector, there will be no extension. I also spoke with my area Supervisor and his staff told me they have a form which can be used to waive late fees if you can prove a legitimate reason you need the waiver. -Joyce N.

Ventura Taxes. According to the Ventura County Tax Collector, property taxes are still due by April 10 and that deadline can only be changed by a change in state law. The Tax Collector also says that property owners who pay their property taxes after the deadline can apply for waiver of late fees and interest if the failure to pay by the deadline is due to a financial difficulty caused by the coronavirus. -William D.

RESPONSE: The last time taxes were waived, it was snowing in Hades. Everyone should file their returns and follow the advice of their tax preparers.

 
*****

Thank you and everyone at Davis-Stirling.com! Such a great resource for the HOA BOD who are volunteers and trying to learn the best we can. -Diane

I look forward to the newsletters; many thanks for your service. It is needed with my being president of our HOA. -Donna H.

Love your newsletter. Great information. Thanks. -Ronald C.

Thank you for the great advice in these trying times. -Lee G.

I so appreciate your newsletter each week (or more often of late). I look forward to your guidance on a regular basis, but with this pandemic, even more so. -Myrna B.


 
Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq. 
Founder & Managing Partner
ADAMS|STIRLING PLC
 
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