|NOTE: The following articles were written by our newest addition to the firm, attorney Karen St. Onge, who is pictured on the right.
Many thanks to Karen who has been gracious enough to write articles while I work with clients on a number of litigation cases. -Adrian Adams
You can send questions and comments to Karen here.
QUESTION: Vegetable gardening has become very popular, and some association members submitted landscape plans with large, galvanized metal planting troughs (think horse watering troughs) for their front yards. What limitations, if any, can we impose on front yard plantings? We would like to avoid large troughs, tall tomato trellises, corn stalks, etc. –Nicolette M.
ANSWER: While there may be a few communities out there where a horse trough and rows of corn are harmonious additions and enhance the value of their homes, I assume Nicolette's is not one of them.
HOAs do not have to allow gardens of personal agriculture in front yards like they do in back yards. However, if a board is inclined to entertain limited front yard gardens, directors might want to first poll the membership about their thoughts on the gardens’ effect on the community and property values.
If they get a favorable response, the board can create an ad hoc committee to prepare guidelines that prohibit horse troughs, scarecrows, and other unsightly objects. Because the garden is in the front yard, boards can prohibit corn stalks an other inappropriate plants. If the garden is in the back yard, such restrictions would likely be unenforceable since associations cannot unreasonably restrict the use of a homeowner’s backyard for personal agriculture. (Civ. Code § 4750(b).)
RECOMMENDATION: Rules should be reviewed by legal counsel before they are adopted to ensure they are enforceable.
IS FILLING A VACANCY A
QUESTION: Is the selection of committee members or board members to fill a vacancy, considered a "personnel matter" for executive session? –Bruce E.
ANSWER: No, it's not. Committee members and board members are volunteers, not employees, so deliberations regarding their selection and appointment do not qualify as “personnel issues” that can be discussed in executive session.
If the board is simply appointing members, then it should take place in an open meeting. If, however, the board needs to discuss removing a committee member, censuring a board member or changing officers due to some alleged misconduct, the board should meet in executive session.
IN THE COMMON AREAS
QUESTION: I was not aware that my HOA had installed a security camera in the common area. As a result, I was filmed breastfeeding my son who would be naked a lot of the time (my son is almost 2). Shouldn't associations post signs so people know about the presence of cameras? -Lora S.
ANSWER: If you were breast feeding in the common areas where passers-by can see you, then the association’s security cameras do not violate any privacy rights because you do not have a reasonable expectation of privacy.
If you were in the association’s poolside changing room when you were recorded, that would be a different story. As for signage, although the HOA is not required to post signs, it is a good idea since they help deter bad behavior and lower the likelihood of a claim that a person had a reasonable expectation of privacy.
IN DIRECTOR ELECTIONS
Most association documents provide for cumulative voting. Next in our series of 2-Minute Videos, we describe how this unusual form of voting works. We also describe why it's in your documents, the problems associated with cumulative voting, and what you can do to get rid of it.
Watch: Cumulative Voting
Underfunded Reserves. I love your newsletters. Thank you! I'd like to see a newsletter topic regarding the topic of overfunded operating funds and underfunded reserves. -Michael J.
RESPONSE: We will cover it in our next newsletter.
Helping Volunteers. Many decades ago, I had the privilege as a young, new attorney to appear before Judge Stirling in the San Diego Superior Court. Now, some 40 years later, and retired from the practice, I have the honor of serving as the president of a community of 662 homes. I am still learning from Judge Stirling as I read your publication and counsel on a monthly basis. Thank you for all you do for us volunteers who continue our efforts to make our communities a better place to live and our associations improve. And my best regards and compliments to Judge Stirling who made a significant impression on a once young attorney. -Richard A.
RESPONSE: I will pass on the compliment. Judge Stirling is a remarkable man and a wonderful partner. We are honored to have him in our law firm.
More Love. LOVE your newsletter for many years. –H.P.
Balconies. If the balcony inspection requires us to replace/rebuild the balcony, must the finished result meet current building codes or would the replacement balcony be grandfathered in with codes that were in effect during original construction? An example, the distance between balusters 40 years did not have to be no more than 4 inches apart. Does this suggest a topic for an article for your periodic greatly appreciated newsletter? -Hank J.
RESPONSE: If the repairs require replacement of the railing, then "Yes" you should bring it to code. Safety is always a priority. Perhaps some of our contractor readers can provide insight on building code requirements.
EV Rebates. Great stuff, as always. Some of the EV charging station rebates are really good. A recent project had $200K worth of upgrades rebated to an HOA of 50 units. –Scott Clements
RESPONSE: More electric vehicles are sold each year. As a result, all condominium associations will eventually need to upgrade their electrical systems to accommodate EV charging stations. If rebates are available now, they should take advantage of them.
|DISCLAIMER. Our newsletter provides commentary, not legal advice. Boards need to retain an attorney to review all the facts and give a legal opinion on the issues they face. We serve as corporate counsel to California associations only. Request a proposal to represent your association.
PAST NEWSLETTERS. Readers can find current 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, however, is kept updated with current information which can be found via the "Index" or through our website's internal "Google Search" feature.