Spending on Wildfire Safety
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  California's Leader in Community Association Law March 14, 2021
SPENDING UNBUDGETED MONEY
ON WILDFIRE SAFETY

QUESTION: We want to pay for wildfire fuel reduction on non-HOA property contiguous to our common areas and homeowners' property lines. This would provide an additional buffer against wildfires. Is such an expenditure permissible? Is it an operating expense or reserve expenditure? –Philip H.

ANSWER: Assuming you have permission from the adjoining property owner, assessments can be used to clear brush to protect your association from potential wildfires.

Court Case. In Finley v. Superior Court, a homeowners association used association funds to fight the conversion of a nearby military base into a commercial airport. Members of the association sued claiming the board exceeded its authority and misused association funds. The court ruled that political contributions were not illegal and boards can take actions they believe are in the best interests of the association, even if members disagree. That means your board can authorize funds to clear brush to protect the association.

Operating Expense. The project does not qualify as a reserve expense since it does not involve maintenance of the common areas. That means it should come out of operations. If the expense was not budgeted, it is unlikely there will be sufficient funds in operations to cover it. In that case, the board can borrow from reserves and then repay it, or special assess the membership up to 5% of the current budget without a vote of the membership.

RECOMMENDATION. If the board decides to clear excess brush every few years, it could qualify as a reserve item much like periodic trimming of common area trees. Boards should consult with their reserve study provider and legal counsel about how best to handle it.

 
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Emergency Rules. Last year we addressed COVID issues at our pool with emergency rules. We have now started planning for our pool opening this year, and we're wondering if we can still use emergency rules to address the ever-changing COVID scene? -Kristi H.

ANSWER: I believe you can. Technically, emergency rules can only last 120 days and cannot be readopted. (Civ. Code §4360(d).) Unfortunately, the pandemic is now one year old, with new directives constantly handed down by health officials. Accordingly, I believe boards can continue to adopt emergency rules. The pandemic has already upset the apple cart on holding in-person meetings. In my opinion, the 120-day limitation can be temporarily suspended.


Limiting Pets. I was told California HOAs are not allowed to limit the number of pets a person can have, is this true? –Erica

ANSWER: No, it's not true. Associations can limit the number of pets a member keeps. What they can't do is ban them altogether. Members are allowed to have at least one domesticated bird, cat, dog, or aquatic animal. (Civil Code §4715.)


Secret Ballots. One of our residents said they believe the state is now requiring secret ballots for things like budgets and assessments. Is this factual? -Dan L.

ANSWER: No, it's not factual. Budgets are approved by the board and mailed to the membership not less than 30 nor more than 90 days prior to the end of the fiscal year. For more information, see our Budget Menu. Emergency assessments and special assessments up to 5% of the budget and regular assessment increases can be approved by the board without a vote of the membership. See our Assessments Menu.


Write-In Cumulative Voting. I was told that when cumulative voting is allowed, it's only for the names printed on the ballots, not write-candidates. I've never heard this before. Is this true? -Doug G.

ANSWER: No, it's not true. The Davis-Stirling Act requires cumulative voting if permitted in an association's governing documents. (Civ. Code §5115(e).) The statute does not make an exception for write-in candidates.

 
FOUR KINDS OF
DAVIS-STIRLING ASSOCIATIONS

The sixth in our series of 2-Minute Videos describes the four kinds of common interest developments covered by the Davis-Stirling Act.

We take a look at the differences between condominiums, planned developments, stock cooperatives and community apartment projects.

  Watch: Four Kinds of Common Interest Developments


 

Videos. Congratulations on another great video. These are really well done with just the right level of information and easy to absorb. -Leland B.

Posting Videos. Thank you for the service you provide to HOAs! Your 2-minute video is just the tool we need to explain executive sessions to our owners. Can we post your 2-minute videos on our association's website? We feel it would benefit the entire community. –Sharon R.

RESPONSE: Yes, feel free to post our videos. Our goal is to help homeowners and board members alike understand how their HOAs work.

Love the Videos. Love, love these videos. Short and to the point. As a manager it helps me answer homeowner questions regarding these topics. Thank you. –Sway R.

Destructive Testing. In one of your videos you mention destructive testing, which I feel is incorrect for the building will not be destroyed during the test. The correct description would be non-destructive testing, where the building is not destroyed. –Adam S.

RESPONSE: Destructive testing and invasive testing are both terms that seem to be used interchangeably in our industry. It means destroying or invading a portion of the balcony by removing stucco or other material to see inside the balcony.

Marjorie Murray. I agree with your assessment of Marjorie Murray, who has created a host of tangled problems for homeowners’ associations. Of course, it also raises questions about the intelligence of legislators in general, sorry to say, when such bills are passed year after year. Thank you for your newsletters; it is always reassuring to read clearly written explanations! –Elaine J.

Paid Board Members? What happens when an insufficient number of people run for the board? Some insist we are required to pay someone to fill that position. –Peggy G.

RESPONSE: As long as you have a quorum of directors, you can continue to operate as an association. If your bylaws call for a 5-member board, you only need three to operate. If you drop below that number, you have a problem. It's unfortunate Marjorie Murray's organization reduced your pool of volunteers by prohibiting spouses not on title from serving. The good news is that her organization made it possible for violent felons and members suing their associations to serve on HOA boards. For more information, read An HOA without Directors.

Vaccination Policy. Don't you mean restricting facilities to those who have been vaccinated adds a layer of protection for people who get vaccinated, not for those who refuse to be vaccinated? –Jeff R.

RESPONSE: No, I meant those who are not vaccinated. Members who receive vaccinations are already protected. It's the unvaccinated who are at risk of catching the virus.
If they are refused entry to HOA facilities, they are theoretically protected from catching the virus. Boards should follow health guidelines for pool reopenings. If your association's legal counsel tells your board they can require proof of vaccination to use the facilities, you should follow their advice. As noted in last week's newsletter, I'm not in that camp. Some people have legitimate reasons for not getting vaccinated, such as strongly-held religious beliefs, or severe allergic reactions leading to life-threatening anaphylactic shock. I believe excluding them from association facilities exposes the board to litigation.

Orange County. Your newsletters continue to be an invaluable resource. Thank You. Thank You. Thank You. I noticed that Orange County is conspicuously lacking from your COVID updates. -Mike H.

RESPONSE: We only report when there are updates. Some counties are more active than others. The less active ones are letting the State provide guidance rather than offering their own. Orange County’s last update was in December 2020.
Some counties are even less active. Kern County hasn’t had an update to its health orders since April 2020. Counties such as Los Angeles are compulsive about publishing updates almost daily, on topics such as pickleball courts, pools, playgrounds, etc.

NEWSLETTERS. Readers can find current year and prior year newsletters posted here. Older newsletters are not posted, since the information they contain can change over time with new statutes and case law. The website itself is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature. You can find the search line in the upper right corner of the website under our ADAMS|STIRLING logo.
 

Federal Update. CDC updated its guidelines for vaccine considerations for people with disabilities.

Statewide Update. The following Counties changed Tiers: Alameda (Purple Tier to Red); Alpine (Orange Tier to Yellow); Amador (Purple Tier to Red); Butte (Purple Tier to Red); Calaveras (Purple Tier to Red); Colusa (Purple Tier to Red); Contra Costa (Purple Tier to Red); Imperial (Purple Tier to Red); Los Angeles (Purple Tier to Red); Mariposa (Red Tier to Orange); Mendocino (Purple Tier to Red); Mono (Purple Tier to Red); Orange (Purple Tier to Red); Placer (Purple Tier to Red); Plumas (Red Tier to Orange); San Benito (Purple Tier to Red); San Bernardino (Purple Tier to Red); Santa Cruz (Purple Tier to Red); Siskiyou (Purple Tier to Red); Solano (Purple Tier to Red); Sonoma (Purple Tier to Red); Tuolumne (Purple Tier to Red).

The State issued a 3/11/21 Press Release re: Update to Blueprint which indicates how additional activities like bars, breweries, wineries, distilleries and sleep-away camps can resume.

Northern California. Alameda County has changed to the Red Tier and issued a 3/9/21 Press Release re: Move to Red Tier.

Butte County has moved to the Red Tier and issued a 3/9/21 Press Release re: Move to Red Tier. The County issued a 3/8/21 Press Release re: New COVID-19 Variant Found In County.

Calaveras County has moved to the Red Tier. The County issued a 3/8/21 Press Release re: Transition to My Turn Platform for Vaccinations.

Contra Costa County has moved to the Red Tier and issued a 3/12/21 Press Release re: Move to Red Tier. The County issued a 3/10/21 Press Release re: Repeal of 11/4/20 and 11/13/20 Orders.

Lake County issued a 3/12/21 Press Release re: Case Rate Improving.

Mendocino County moved to the Red Tier.

Mono County moved to the Red Tier and issued a 3/12/21 Press Release re: Move to Red Tier. The County issued a 3/9/21 Press Release re: Town of Mammoth Lakes Rescinding Short-Term Lodging Order.

Nevada County issued a 3/12/21 Press Release re: Vaccination of Grocery Store Employees. The County issued a 3/12/21 Press Release re: Expansion of Vaccine Eligibility.

Placer County moved to the Red Tier.

Sacramento County issued an updated Health Order to align with the changes to the State’s Blueprint.

San Francisco issued a 3/12/21 Press Release re: Vaccination Expansion Effective March 15.

Santa Clara County issued a 3/12/21 Press Release re: All K-12 Educators and School Employees Have Been Offered Vaccines.

Santa Cruz moved to the Red Tier and issued a 3/9/21 Press Release re: Move to Red Tier.

Solano County moved to the Red Tier and issued a 3/9/21 Press Release re: Move to Red Tier.

Sonoma County moved to the Red Tier and issued a 3/12/21 Press Release re: Move to Red Tier.

Sutter and Yuba Counties issued an 3/11/21 Updated Activity and Business Tier Chart.  

Tuolumne County moved to the Red Tier.

Southern California. Imperial County issued a Press Release and an amended health order to align with County’s movement to the Tier 2 (Red). 

Los Angeles County updated its Health Order to include the CDC’s guidance for fully vaccinated people regarding visits or small gatherings.

Orange County Health Care Agency has a chart of vaccine safety & effectiveness.

Riverside County issued a Press Release that outdoor entertainment and sports with spectators may resume April 1, 2021 in Riverside County, with exceptions depending on the Tier the County is in.

San Bernardino County announced in its publication that food and agricultural workers are now eligible for vaccination, including grocery store and restaurant workers.

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 8-5-21. 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 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. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

See our summary of new laws and cases.

I join Adrian in inviting you to contact us for your association's legal needs.

Hon. Lawrence W. Stirling, Senior Partner and author of the Davis-Stirling Act
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