Surfside Condominium Collapse
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  California's Leader in Community Association Law July 6, 2021
SURFSIDE CONDOMINIUM
COLLAPSE

The collapse of the 12-story condominium tower in Surfside, Florida captured the nation's attention because it was so sudden and deadly. Things like this are not supposed to happen.

Perfect Storm. It appears a number of factors contributed to the tragedy. Among them were construction defects, environmental factors, poor code enforcement, poor maintenance, and a refusal to impose special assessments to make needed repairs.

Resignations. In 2019, five members of the seven-member condo board resigned in frustration over endless debate concerning the scope of work and its cost. They had been issued dire warnings, but members balked at paying the estimated $15 million to make repairs.

In the president's letter of resignation, she pointed out that the prior president was undermined repeatedly and couldn't get anything done. The sniping continued against the new president. She complained of "ego battles, undermining the roles of fellow board members, circulation of gossip and mistruths."

Consequences. Rogue directors who blocked repairs had deadly consequences. It led to the deaths of over 150 members. Lawsuits have already been filed against the association, with more on the way. The association is now in court-ordered receivership.

RECOMMENDATION: If a condominium project is less than ten years old, it is important for boards to talk to legal counsel to determine if defects exist. They should have the property inspected and a report prepared, and then take appropriate action.

Maintenance and Safety. For projects older than ten years, boards must fulfill their primary duties — maintenance of the common areas and ensuring sufficient funds are available to do so. That means properly funding their reserves and then spending those monies to keep building components in good condition. When directors receive a report warning of imminent harm, they should move quickly with an emergency special assessment, if needed, to address the danger.

 
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Interim Meetings. Our board is having an interim meeting between regular board meetings every month. We have motions, votes, and executive meetings during these meetings. Is it legal to do this and call it an interim meeting? –Diane M.

ANSWER: It's legal if the board gives the membership four days' notice and posts an agenda. Whenever a quorum of directors gets together to "hear, discuss, or deliberate upon any item of business," it's a board meeting, no matter what they call it. (Civ. Code §4090.)


Taxes on ADUs. Will building an ADU increase property taxes on the land owner? -S.D.

ANSWER: That’s a good question. I suspect the answer is yes. Local governments are always looking for more tax revenue. Building an Accessory Dwelling Unit (ADU) in one's backyard is no different than adding onto your house, which triggers a reassessment and increased taxes. Converting a garage into a JADU doesn't add square footage, but it's an improvement which increases taxable value. Maybe some of our readers have experience with this and can report on it.

Continue Masking? I'm vaccinated but immuno-compromised due to medication for rheumatoid arthritis. Can I ask my HOA to continue to require masking and social distancing (for everyone) in our laundry room as a provision of the Americans with Disabilities Act? -Lora

ANSWER: You can ask but I don't believe the association is required to accommodate your request. Requiring everyone in the complex to wear a mask to protect you when you have alternatives may be a bridge too far. In Davis v. Echo Valley Condominium Association, Davis suffered from asthma and claimed the association's refusal to ban smoking discriminated against her because of her health issues and was in violation of the federal Fair Housing Act (FHA). The court determined that a smoking ban would amount to a fundamental alteration of the association's policies and would intrude on the rights of other residents to smoke within their units. The court ruled that a smoking ban is not a reasonable accommodation.

 

Suspend Cable TV. As part of the dues, our association covers cable TV for all owners. If a homeowner is behind in their dues and has rebuffed all payment plans, can their cable be shut off until they are paid in full? –Kevin H.

ANSWER: Yes, you can suspend their cable TV. It's a service, not an entitlement. If they fail/refuse to pay for the service, it can be turned off. Before suspending the service, you should hold a hearing and give the person an opportunity to pay the monies owed or enter into a payment plan.


ADUs in Front Yards. You mentioned that ADUs can be in a garage or back yard. Placer County is interpreting the law to mean they can be in the front yard also. They are even granting variances to front setbacks to allow them to be built between the existing home and the street. If there is another interpretation or court ruling that restricts ADUs to the back yard or garage, please write about it and let us know ASAP! Also, it is my understanding that an attached ADU could also be built thereby allowing 3 ADUs per lot! -Netti J.

ANSWER: I am not aware of anything at this point limiting the proliferation of ADUs. The Governor and Legislature are putting band-aids on the housing crisis. Robbing communities of the right to control their own zoning, breaking up stable single-family home neighborhoods, adding more cars to streets, and overloading facilities is not the solution. A new Governor and Legislature may be the solution.


Changing Management Companies. We are in the throes of changing management companies. Our intention is to overlap services for the sake of a "smoother" transition (2-weeks' worth). Is there a statute that prohibits such an overlap of management companies? –Marshall D.
 
ANSWER: There is nothing illegal or improper in overlapping management services to help ensure a smooth hand-off.
 
HOA BUDGET
REQUIREMENTS

The next in our series of 2-Minute Videos describes budgets.

It addresses Davis-Stirling requirements on HOA boards of directors, their notice obligations, approval requirements, disclosures, and increase limitations.

  Watch: HOA Budget Requirements


 

Marjorie Murray. Does anyone know a good investigative journalist who can dig into her present and past activities? -Sharon F.

RESPONSE: It would be nice to shed some light on what motivates Ms. Murray. Does she live in an association? Was she ever on a board of directors? Was she recalled by the membership? Something happened to trigger her hostility. There were repeated warnings by others and me that her election bill was a train wreck. She refused to listen and plowed ahead. She called the legislation her "baby." Instead, it's a dumpster fire.

Thank you for today's newsletter. The information is just the best. -Jones A.

Your Newsletter is great! An oasis in a condo desertscape. Totally worth the time and effort. -Nancy H.


 
Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC
DISCLAIMER. Our newsletter provides commentary only, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion. We serve as corporate counsel to California associations only. Request a proposal to represent your association.

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