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  California's Leader in Community Association Law October 11, 2020
POLITICAL SEASON
IN FULL SWING

Political Banners. A homeowner has a banner draped across the front of the home (see photo). Is this allowed? The curse word is the part that makes me question it, especially with children playing in the neighborhood. –Sam N.

RESPONSE: Unfortunately, we will see a lot of political signs and banners over the next 3 weeks that will offend people.

Signage Allowed. The Davis-Stirling Act specifically allows for the display of "noncommercial" (political) signs. It does not restrict content except to protect the public or if in violation of the law:
The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law. (Civ. Code §4710(a).)
Obscene? Some might consider the above banner obscene or claim it incites violence or affects their mental health, but a court will deem the message permissible free speech. Even if the banner used the "F" word, you would have trouble convincing a court to order its removal. In 1968, Paul Cohen wore a jacket with the words “F*** the Draft” into a Los Angeles courthouse and was subsequently convicted of disturbing the peace. His conviction was appealed to the U.S. Supreme Court where it was overturned. (Cohen v. California.)

RECOMMENDATION: To reduce stress, avoid watching TV, stay off social media, don't talk to relatives, and drive with your eyes closed. Once the election season is over, we can move on to the next catastrophe.


Size of Signs. We love your newsletter in San Diego! Our association has a rule that signs can be posted but it conflicts with Civil Code Section 4710 regarding size which allows up to 15 square feet. Which rule has precedence? -Suzanne S.

RESPONSE: When there is a conflict between an association's rule and the law, the law controls. (Civ. Code §4205.)


Inspectors of Election. I thought inspectors could no longer come from the membership and instead needed to be paid outside parties and our election rules needed upgrading to reflect this change. –Jeff K.

RESPONSE: You are right that election rules need to be updated. However, you aren't entirely correct about inspectors of election. SB 323 prohibits anyone under contract to the association from serving as an inspector. That means associations can no longer use their management company or CPA to perform those duties. You can still use a volunteer from the membership, provided the person is not a member of the board, nor a candidate for the board, nor related to a member of the board or a candidate. (Civ. Code §5110(b).)


Moved to another State. If a director moves to another state but still owns the property, can he/she stay on the board? -Anon

RESPONSE: Yes, members not living in the association can serve on the board. We have a lot of snowbirds who are Canadian citizens, with their primary residence in Canada, but who own property in associations in the Palm Springs area and serve on their boards. It's perfectly legal and we like having our Canadian cousins on our boards.


Term Limits. Our bylaws have a limit of no more than 2 two-year terms. What is your opinion on whether this limitation was voided by SB 323. Thanks for your great website. Lots of HOAs use it! -Gregg F.

RESPONSE: As everyone knows by now, the bill sponsored by Marjorie Murray's Center for California Homeowner Association Law (CCHAL) made extensive changes to election procedures. Unfortunately, the bill was badly drafted with a lot of internal inconsistencies and negative consequences for associations and their members. One of them was the voiding of term limits.

Qualifications Voided. SB 323 (now law) stripped all qualifications from governing documents that would prevent someone from running for the board. It created one mandatory qualification — membership in the association (a blunder that is particularly harmful to small associations).

Discretionary Qualifications. The bill allows associations to adopt four discretionary qualifications for candidates — term limits was not one of them. This has caused a great deal of distress in associations that want term limits. Early this year, CAI's California Legislative Action Committee (CAI-CLAC) began work on cleanup legislation to undo the harm caused by Ms. Murray's Center. Unfortunately, everything stopped when the pandemic hit. Repairing the damage will have to wait for the next legislative cycle.


Non-Trustee Spouses. Is there a way for the spouse of a trustee of a living trust to qualify for the board of directors? –Suk M.

RESPONSE: SB 323 does not allow a spouse not on title to run for the board. I know it's absurd; association members should be allowed to decide for themselves whom they want to represent them. Unfortunately, we are stuck with the bill for now. The only way for the spouse to be a candidate is to amend the trust, make him/her a co-trustee and re-record title.

Are Appointments Allowed? One line of thought among attorneys is to appoint the spouse to the board. He/she cannot run for the board as a candidate but some attorneys argue that appointments are not prohibited by Ms. Murray's bill. Other attorneys are more conservative on the issue and argue that persons who are not qualified cannot serve on the board. Boards should talk to their association's legal counsel on this matter.

Trustee Member? We have members who owned the property for years and put it into a trust with a relative as trustee. Our CC&Rs state the member is the one who holds the title. We want it to be the people who bought the house to be members, regardless of how title is held. Who is the member? –Netti J.

RESPONSE: The person on title is the member.

 
EARTHQUAKE RESILIENCY
FOR COMMUNITY ASSOCIATIONS
 
Dr. Lucy Jones (US Geological Survey and CalTech Seismologist), Glenn Pomeroy (CEO, California Earthquake Authority) and Adrian Adams will discuss the impact of the next major earthquake on California's community associations.
 
What can boards do today to avoid a catastrophe? What should be done after the big one hits?
 
The program, California Shakin', is approved for 1.5 CE credits for managers. It will be presented Tuesday, October 13 from 11:00 am to 12:30 pm. CLICK HERE to register.
 

Reopening Gyms #1. "They decided not to risk anyone dying from the coronavirus and imposed stringent restrictions on reopening facilities until science could find a cure for death." They are going to wait a long time before they find a "cure for death." –Nelson I.

Reopening Gyms #2. This guy cracks me up. Only in California. –Ann C.

Reopening Gyms #3. Currently .019 chances of death! Why do they use death? Scare tactics totally. –Michael G.

Reopening Gyms #4. A cure for death was announced 2000 years ago. Now if we can just get churches at more than 25% of capacity?? ‑Robert F.

Reopening Gyms #5. I love your emails and advice...keep up the good work. If a board decides to open their indoor gym without complying with the local ordinances does that decision to operate "illegally" impact the HOA liability insurance? Could the HOA Liability insurance carrier deny coverage for operating a gym "illegally," since public policy generally prohibits insurance coverage for illegal behavior? If so, then there is a huge liability risk for operating an HOA gym with no insurance coverage. ‑‑Marc D.

RESPONSE: Here is what San Francisco's Health Department says about its orders:
Health Orders are enforceable laws and are usually accompanied by one or more Directives which provide legally binding instructions for how to comply with the Health Order. The Orders and Directives may also be accompanied by Guidance that provides suggestions and frameworks to facilitate compliance.
The City's statement is not entirely accurate. "Laws" are created by legislatures. Orders and Directives from Health Departments or other executive agencies are not laws but are, nonetheless, enforceable. People who violate them can be charged with a misdemeanor and fined. The problem is that Health Department Orders, Directives and Guidelines have been changing weekly, sometimes daily. In addition, State, County and City Orders, Directives and Guidelines often conflict. Finally, it is sometimes difficult to determine if a Guideline is just a guideline or an order. Even Health Department officials and County Supervisors are often confused by their level of enforceability.

Currently, various Counties have allowed gyms to open. If a board opens their association's gym in a good faith effort to comply with Health Department Guidelines, but fails to fully comply as intended by the Health Department, an official would likely issue an Order to Comply or close the gym. A fine may or may not be imposed. Normally, a warning is issued first. It's unlikely the State, County or City (once they decide who's in charge) would sue unless there were willful defiance of their Order. If your board told the official to pound sand and the association were sued, insurance would likely not defend. 

Recommendation. If a Health Inspector shows up on your doorstep and issues an Order, you should probably comply. Talk to legal counsel first before refusing. The official could be dead wrong and legal counsel could make inquiries and seek clarification. It's possible the Order would then be reversed.


AB 3182 #1. I see that all existing rental rules are now unenforceable, although HOAs can limit rentals to 25% of total units; what does this mean for buildings like mine that already have more than 25% rentals? Also, if we're not prohibited from requiring a lease longer than 30 days, how does this prevent us from banning short-term rental platforms like AirBnB? Is there any chance of this law being repealed? –Lynn P.

RESPONSE: Not all restrictions were unenforceable, only non-compliant ones. What are the chances of getting the law repealed? If we had a new Governor and new legislators, we might have a chance. Otherwise, chances now are less than zero. You can still ban short-term rentals. It might be possible to impose lease terms longer than 30 days if an association can fully justify the longer lease term. There seems to be some wiggle room on this point.

Recommendation. Associations with non-compliant restrictions need to amend their documents. We are already reviewing and amending documents for HOAs. We can quickly determine if restrictions are okay as-is or need to be amended. Contact us if you need your documents reviewed.


AB 3182 #2. Love your gallows humor! It helps to tolerate all the absurdities of life with HOAs and POAs. We are a road association only. Does this new law apply to us, i.e., the requirement to yet again amend our agreements? –Maggie L.

RESPONSE: If you don't have rent restrictions, you don't need to amend your documents. As a road maintenance association, I can't imagine you have rent restrictions.


AB 3182 #3. You said to change rules and regulations first regarding rental restrictions by the end of the year, but also said all existing restrictions would become void as of January 1. Wouldn't any changes we make now be wiped out? –Lynn P.

RESPONSE: If you amend your rules to comply with AB 3182, your rules will be fully enforceable once adopted and continue to enforceable on January 1.


AB 3182 #4. Our HOA has a restriction which states no subleasing without consent of the board, is that still valid? -Carl

RESPONSE: Yes, it's still valid. This is important if you want to prevent someone from renting a unit/home for 30 days and then turning around and running Airbnb rentals through it. In addition to no subleasing, you will want something in your governing documents against transient, hotel-like operations. That should cover all the angles.

AB 3182 #5. What happens if the board approves a CC&R change but cannot get the required number of HOA members to vote for it? –Jim G.

RESPONSE: If you are amending CC&Rs to comply with AB 3182, it may be possible for your board to record an amendment without a vote of the membership, since the change is mandated by the State of California. Provided the changes don't deviate from AB 3182, the changes are not ones the membership can reject. You should consult with legal counsel first to see if they agree and, if so, provide the  appropriate language in your board resolution and CC&R amendment.

AB 3182 #6. This is ridiculous, legislators (lawyers) mandating that the public pay lawyers (obvious conflict of interest) to change documents every 6 months in California. A revolution is needed — or at the end of the law state it must be changed for free by all lawyers in the state. -Ed S.

RESPONSE: AB 3182 is harmful, badly written and completely unnecessary. We fought hard to stop the bill. When it passed, we fought to have it vetoed. Over 5,000 emails and letters were sent. All to no avail. It's time citizens voted for new legislators.

Priceless! I love it when your information hits board members and HOA management companies in the head, to make them walk the center line. Priceless! -Ty W.

 

NorCal Counties. The following Counties have changed tiers: Humboldt (Orange Tier to Yellow); Inyo (Red Tier to Orange); Merced (Purple Tier to Red); Plumas (Orange Tier to Yellow); Santa Barbara (Purple to Red); Shasta (Orange Tier to Red); Siskiyou (Orange Tier to Yellow); Tehama (Red Tier to Purple); Trinity (Orange Tier to Yellow); Ventura (Purple Tier to Red); Yuba (Purple Tier to Red).

Alameda County has released information indicating that as of October 13, elementary schools can open if they complete a reopening plan; additionally, they are considering permitting middle and high school students to return to in-person education in phases: Alameda County Guidance re School Opening. The County indicated that indoor gym and fitness guidance is coming soon and that those inside the facility may not exceed 10% capacity.

Butte County issued a press release encouraging residents to get the flu vaccine by Halloween: Butte County Press Release dated 10/9/20 re flu vaccine.

Lake County issued a press release indicating that Lake County was going to remain in the red tier and would not be moving back to purple: Lake County Press Release dated 10/5/20 re Remaining in Red Tier. Lake County has a new Order clarifying guidelines for facial coverings by superseding prior facial covering Orders and replacing them with the State Guidelines: Lake County Order Clarifying Facial Covering Guidelines dated 10/8/20.

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

Monterey County has swimming pool guidance which has been added to the chart.

Napa County issued an official Rescission of the 4/25/20 Health Order Napa County Rescission of 4/24/20 Order.

Nevada County issued a press release re Halloween safety.

Sacramento County has updated pool guidance which has been added to the chart.

San Francisco has a new Health Directive dated 10/7/20 re Movie Theaters that allows reopening (without concessions and common areas) at 25% capacity.

San Joaquin County’s Order re schools has replaced the press release previously in the chart.

Santa Clara County revised their Risk Reduction Order on 10/5/20 that will go into effect when the County moves into the Orange Tier. The Order will allow additional activities and businesses to open, such as indoor dining and indoor gatherings, if the State allows.

Shasta County moved from the Orange Tier back to the Red Tier. Based on this change, Shasta County issued a release indicating the impact that this has on business and activity openings: Shasta County Press Release re Red Tier Business Closings.

Sonoma County has issued a press release on October 8, 2020 indicating the status of school waiver applications: Sonoma County Press Release dated 10/8/20 re School Waiver Update.

Sutter County has a new Order and revoked the prior Order and all Amendments thereto. This Order is intended to align local Orders with the State’s Order.

Tehama County has moved from the Red Tier back to the Purple Tier.

Yuba County has moved from Purple Tier to Red Tier. Yuba County has a new Health Order and revoked the prior Order and all Amendments thereto. This Order is intended to align local Orders with the State’s Order.


SoCal Counties. Los Angeles County amended its Health Order to allow indoor nail salons and indoor malls to reopen with capacity restrictions. It also removed restrictions on outdoor playgrounds. A further amendment permits non-restaurant breweries and wineries to operate outdoors with restrictions. On October 6, 2020, the city of Los Angeles amended its Order, removing cardrooms and wineries from exempt essential activities.

San Diego County provided Halloween guidelines, prohibiting in-person parties with non-household members; further, does not recommend door-to-door trick-or-treating or “trunk treating” or leaving bowls of candy for others to grab.

San Luis Obispo County provided guidance for a safer Halloween, prohibiting in-person parties with people not in your small social bubble; further, classifies door-to-door trick-or-treating as high risk. Also, since the county has been in the red-tier for two weeks, the County is allowing in-person schooling with modifications.

Ventura County issued an amendment to its July 13th health order that closed specified indoor activities and is now allowing gyms, fitness centers, worship services and personal care services to operate indoors with compliance with the State and County Health Orders.


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 10-8-20. The chart is also posted on our website.

Enlarging Text. If for some reason you do not have scrolling capability (my mouse died!), hold the "CTRL" button while you strike the key with the "+" [multiple times] to enlarge the text, and the "-" [multiple times] to shrink the text. These are the keys in the upper row, NOT the keys in the "numeric key-pad area" (right-hand side of the key board). –Hank J.

RESPONSE: Good information for readers without mice. I hope you gave yours a proper burial.


 
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 governing documents to comply with rent restrictions required by AB 3182.

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