Storing Old Records
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  California's Leader in Community Association Law June 14, 2020
STORING
OLD RECORDS

QUESTION. We have been storing boxes of records for 50 years. It's time to clean house. What type of storage media is acceptable for records that need to be kept forever? -Ron H.

RESPONSE: For long-term records storage, there is no perfect solution.

Data Degradation. All data storage media degrades over time. It is a fundamental law of the universe that disorder increases over time (entropy). That means everything grows old, breaks down and dies. Paper becomes brittle and crumbles over time and is subject to damage/destruction from insects, water and fire. Magnetic tape storage loses data as it loses its magnetic charge. The tape itself also deteriorates. Flash memory loses data as electrical charges slowly leak away. Optical media, such as CDs and DVDs lose data as discs break down.

Media Lifespans. Estimated lifespans of media vary significantly. Magnetic storage 10-20 years; Flash storage 5-10 years. Optical storage up to 100 years (under less than ideal conditions, 30 years or less). Human brains, up to 120 years (very rare).

Changing Technology. Even if media is properly stored, there is the problem of changing technology. What is widely available today may disappear over time as software coding and machines become obsolete. Assuming their memories are still intact, readers in our 55+ communities will recognize most on this list of evolving data storage.
78 rpm records (1901)
Vinyl LP records (1948)
7-inch 45 rpm records (1949)
Open reel tapes (1949)
Compact cassette tapes (1963)
8-Track tapes (1964)
Floppy computer disks (1971)
VCRs (1972)
Betamax (1975)

LaserDisc (1978)

Compact discs (1982)

3.25-inch computer disks (1983)
Digital Audio Tapes (DAT) (1987)
Compact Discs-Recordable (CD-R) (1992)
DVD-R (1997)
Secure Digital (SD) (1999)
USB flash drives (2000)
All data storage media need devices to read them. Most for the above list can no longer be found, except in museums.

RECOMMENDATION:
Develop a written document retention policy. Run it by your CPA and legal counsel for their stamp of approval. Then, shred documents you don't need (unless you have a litigation hold) and digitize the rest. You should use the PDF/A format which is specialized for archiving and long-term preservation of electronic documents.

In the grand scheme of things, associations will have a relatively small amount of data to store, but it needs to be readily accessible. Associations can use cloud backup, such as Carbonite, or a storage site that manages data security (not Amazon Web Services, which expects you to do it yourself). The small monthly storage fee to store data in the cloud pales in comparison to the cost of the real estate needed to store paper.

GOVERNING DOCUMENT
UPDATE

Minimal Rules. Our board will be updating our antiquated CC&Rs and bylaws but wants to create a set of documents that have minimal rules which still meet legal requirements. Is there such a thing as minimum documents required by regulations? -Dean

RESPONSE: Yes, restrictions in CC&Rs and rules can be minimized. There are basic legal requirements that must be met, but that can be done fairly easily. Election requirements in bylaws and election rules are the problem. SB 323 greatly complicated elections. The bill's negative impact can be blunted by eliminating quorum requirements for the election of directors; eliminating cumulative voting, proxies, write-in nominations and nominations from the floor; and providing for uncontested elections.

Registering Bylaws. Doesn't California require changes to bylaws be registered with state agencies? -George B.

RESPONSE: No, not bylaws. CC&Rs and their amendments must be recorded with the County Recorder because they restrict the use of real property. Articles of incorporation must be filed with the Secretary of State. Bylaws and rules, however, are not recorded nor are they filed with any governmental agencies.

Health Directive Priorities. Do State public health orders take precedence over a County's health orders? California's Department of Public Health is allowing HOA pools to reopen provided guidelines are followed, while our County wants it to remain closed forever, not even for lap swimming, which is neither rational nor reasonable. -Bette L.

RESPONSE:
Between the County and the State, the more restrictive orders prevail. For example, California does not require face coverings in public. Orange County's Health Officer chose not to follow the state's lead and issued an order mandating face coverings in public. Her order controlled over the State's more permissive recommendation. However, there was such a backlash that she resigned from her post. The interim director promptly retracted the order so that face coverings are now recommended, but not mandated, in Orange County.

Hot Tub Minimum Age. Is there a regulation in California about the minimum age of children in spas and swimming pools for HOAs? We are updating our rules. -Vernon C.

RESPONSE: No, there is no minimum age by statute. However, hot tub manufacturers have recommended age restrictions. Adult supervision can be required for children under 14. Make sure you have legal counsel review your rules to make sure they don't violate any laws against discrimination.


NorCal Counties. Fresno County opened gyms, fitness centers, parks and outdoor recreation (including pools). Lake County opened outdoor recreation (including pools) and fitness facilities (gyms), as did Mendocino County.

Monterey County rescinded their short-term lodging order. Sacramento County allowed a large number of sectors to open, including gyms, fitness studios and facilities, and pools. San Francisco opened outdoor dining.

San Joaquin County opened outdoor recreation including pools, but gyms remain closed. Santa Cruz County opened outdoor recreation, gyms and fitness centers. Sonoma County opened wineries and tasting rooms. Tulare County opened gyms and pools. Tuolumne County opened outdoor recreation (including pools) and fitness facilities (gyms).


SoCal Counties. Los Angeles County posted their health order with protocols for reopening for fitness facilities, campgrounds and RV parks. See what’s open in Los Angeles.

Orange County changed their health order for facial coverings in public from required to strong recommendation. Riverside County issued a health order cancelling the Temecula Valley Balloon and Wine Festival for 2020.

Ventura County issued a new health order adopting the State guidelines for the reopening places of worship, campgrounds and RV parks, and fitness facilities.


Updated Chart. For a list of county restrictions and links to health department orders, see County Chart 6-13-20. The chart is also posted on our website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.



Hot Tub Proximity. In regards to opening hot tubs, it’s not about the water, it’s about the air and the close proximity of users. Masks would be more of a requirement than swimsuits. -Peggy H.

RESPONSE: Refusing to open hot tubs makes no sense. There is no threat of spreading the virus between members of the same household — no masks or bathing suits are required, and they are still perfectly safe.

Legal Advice. Adrian, I got a chuckle from your newsletter this morning. Legal advice from a manager?! Never. Contact your retained legal counsel. Just emailed a board member that right before seeing your newsletter. -Russ H.

Adrian, well said on the advice to managers. -Roy H.

I like the part of “Value of Managers.” I think this says it all. Managers should not be making this decision or giving advice, they should recommend that the board consult with legal counsel. Now, if only we can convince them of it. LOL! -Paula C.

Manager's Attorney. You wrote an excellent write-up about managers practicing law. Can HOAs take legal advice or get answers to legal issues from the manager's attorney?? -Linda L.

RESPONSE: Boards should avoid management companies that offer "free legal" if you hire them to manage your association. It is a conflict of interest for an attorney to represent an association and the management company at the same time. Under State Bar Ethics Rules, dual representation requires informed written consent. Reputable management companies are careful not to offer legal services as part of their management package.

Balcony Inspections. I enjoy reading your newsletter and it helps me as a board member. Your answer about the balcony inspections is incomplete. These are cantilevered balconies only. This is clearly stated in the law. There is no need to inspect non-cantilevered balconies under the law although it is always good to inspect. -Nick M.

RESPONSE: The statute covers more than just cantilevered balconies. (Civ. Code §5551.) Those with wooden supports are also vulnerable to dry rot and termite damage that can lead to collapse. See "Balcony Inspections & Repairs."

Reserves. Thank you for your continued support of reserve studies. Neither updating governing documents nor reserve study fees are a reserve expense. They do not meet the criteria outlined in the CAI or APRA Standards of Practice, nor the California Civil Code. And, as you noted, reserve study expenditures are annual, with an anticipated higher fee every three years for the engagement involving a site visit. We are aware of the argument that other secondary costs are considered reserve expenses, such as architectural or engineering plans or reviews, municipal permit fees, and multi-year testing/inspection of elevators or fire suppression systems. The difference is these expenses are directly related to specific physical elements of the property. -Scott Clements, Reserve Studies Inc.



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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