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PANDEMIC
EMERGENCY ENDS
It's a little anticlimactic but Gov. Newsom announced the "State of Emergency" will end on February 28, 2023.
Physical Locations. It means boards who want to use video conferencing for their meetings must designate a physical location in their meeting notice so owners who want to attend in-person, can do so even though the meeting is being held virtually.
In addition, at least one director or a person designated by the board must be present at that location with a laptop or conference phone setup that allows members to hear the meeting and, during the Open Forum portion of the meeting, be heard by the board. (Civ. Code § 4090).
Hybrid Meetings. Boards can also hold hybrid meetings where directors meet in person with some or all members observing the meeting via Zoom. Hybrid meetings can be especially important for associations with seasonal residents, i.e., "snowbirds" who fly in for the winter and leave during the summer. It allows them to attend meetings. Hybrid meetings are also useful for presentations by vendors and consultants who might otherwise be unavailable to attend in-person. They can also be used to reduce legal fees. Having counsel attend an executive session by video conference eliminates drive-time charges.
 Easy Setup. The technology for hybrid meetings is relatively inexpensive and easy to set up.
 All you need is a laptop, a medium to large TV screen on a wall, a wide-angle webcam, and a conference speaker. I recommend a Bluetooth speaker with extension microphones to make it easy for everyone to hear and be heard.
There is a large selection of affordable equipment to choose from. A techie can help boards decide what is best for their meeting room, purchase the equipment, and setup everything. It pays to invest in good equipment. Doing so will give boards the flexibility and convenience to hold meaningful hybrid meetings.
Thank you to attorney Megan Hall for the above article.
REMOVING ASBESTOS
IN UNITS
QUESTION:  A member discovered his acoustic ceiling contains asbestos and insists the association remove it. Is the association obligated to remove asbestos in an owner's unit? -Edward H.
ANSWER: Unless your governing documents state otherwise, the association is not responsible for removing asbestos-containing ceiling material in owners' units.
Encapsulation. As long as the ceiling material is properly encapsulated and not disturbed, it will not shed asbestos fibers. Encapsulation means leaving the material in place but sealing it with a protective barrier to prevent fibers from becoming airborne.
Owner's Responsibility. If owners don't trust encapsulation, they can have the material professionally removed at their own expense. The reason this is the owner's responsibility is found in the definition of a condominium unit. A "unit" is normally defined as a cube of air bounded by unfinished floors, ceilings, and perimeter walls. The acoustical material on ceilings (like paint on the walls, carpet on the floors, light fixtures, plumbing fixtures, cabinets, and countertops) belongs to the owner and is the owner's responsibility to maintain, repair, and replace.
RECOMMENDATION: Since ownership and maintenance duties can vary from association to association, boards should have legal counsel review their governing documents and clearly delineate duties. It will help everyone know who is responsible for maintenance obligations in units, on balconies, and for exclusive use elements inside walls. For assistance, contact us.
CHANGE IN NOTICE
REQUIREMENTS
 Last year, the legislature passed Senate Bill 392, which significantly changed Civil Code § 4040. The changes modify how “individual notice” is provided to members. As of January 1, 2023, the statute will be replaced with a revised statute. (click on Civil Code § 4040 and scroll down to view the changes).
Change to Individual Notice. Currently, boards have discretion to deliver notices by mail or email (if email was consented to by the recipient). Effective January 1, 2023, documents and notices which are required by individual notice or individual delivery must be delivered in accordance with the preferred delivery method specified by members.
Administratively Difficult. Associations may find themselves in the administratively difficult position of delivering notices four different ways:
- Mail to some members (§ 4041(a)(1)(A));
- Email to other members (§ 4041(a)(1)(B));
- Mail plus email to a third group of members (§ 4041(a)(1)); and
- If a member does not provide a preferred delivery method, notices must be delivered by "first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier addressed to the recipient at the address last shown on the books of the association." (§ 4040(a)(2))
In addition,  associations must have a procedure in place to monitor email for bounce-backs or error notifications. If delivered to an invalid email address, the association must resend the notice to a snail mail address or another email address identified by the member. (Civ. Code § 4041(e).)
Annual Request for Information. Associations are required to annually solicit members’ preferred delivery method, current mailing address, their email address, and other information. In addition, they must enter members’ preferred method in their records at least 30 days before distributing their Annual Budget Report. (Civ. Code § 4041(b).)
Thank you to attorneys Allyson Calvird and Karen St. Onge for this update.
Links to the Statutes. I think you should list the actual Civil Code that results from Assembly and Senate bills, as those are only proposed laws which may or may not become approved and added to the Civil Code once the governor signs them. Why are you not doing this? –Kay S.
RESPONSE: When the Governor signs a bill, the new or changed statute does not becomes law until the date set for it to go into effect, normally January 1 the following year. That is why we link to the bill--there is nothing else to link to. Once the statute becomes effective and is posted on the State's website, we can update our website and provide new links.
First Amendment. In your newsletter you indicated Assembly Bill 1410 bill did three things, one was free speech. You said it was redundant considering the First Amendment to the US Constitution. First Amendment protections only apply to actions by governments, not private parties. –Stephen S.
RESPONSE: You are right. Thank you for the correction. I have a page on the website devoted to free speech that addresses this issue. It slipped right by me.
Cake Frosting. As a kid, I always saved the frosting on the cake for last. I think that’s why I always save the Adams Stirling Newsletter to read after I’ve weeded through all my other emails (plus it has no calories.) –Nancy H.
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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.
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