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RATTING OUT
NEIGHBORS
QUESTION:  Is it legal for an HOA to rat out members who file complaints about their neighbors? For example, a member complains to management about a neighbor's clutter and the manager then tells the violator who reported them. It's a horribly nasty thing to do, but I wonder if it's a violation of law (I hope it is!). -Jay S.
ANSWER: It isn't illegal. Even so, it is not a good practice. It unnecessarily creates tension between neighbors. Rules enforcement can be done without "ratting out" the person who reported the violation.
The Davis-Stirling Act requires due process when imposing penalties on members who violate rules. That means (i) giving accused persons notice of alleged violations; (ii) providing a reasonable opportunity for them to defend themselves; and (iii) giving them an opportunity to examine the evidence. (Civ. Code § 5855; Civ. Code § 4935(b).)
A neighbor who reports a violation can remain anonymous if the violation can be verified independently. If there is evidence of the violation in the form of a security camera recording, a staff member's first-hand report, a board member seeing the violation, etc. With verification of the violation, there is no need to mention who initially reported the violation.
If the alleged violation cannot be verified, the board cannot proceed with a hearing unless the neighbor is willing to testify at the hearing to what they witnessed.
RECOMMENDATION: So everyone (homeowners, board members, and management) understands the procedure for handling rules violations, boards should adopt written "Rules Enforcement" guidelines and publish them to the membership. Contact us if you need assistance.
BALCONY INSPECTION
REVISIONS?
QUESTION:  Thanks for your newsletter, especially the humor! We refer to it and your website quite frequently. Do you know of any significant legal challenges on the balcony inspection law? Our small 21-unit complex is getting bids to inspect our balconies in the $20,000 range! That doesn’t even include the cost to repair damage revealed by the tests. -Minda R.
ANSWER: I asked around and learned that CAI's California Legislative Action Committee (CLAC) has a subcommittee exploring possible revisions to Civil Code § 5551 (inspections of elevated structures).
Deadline. Because the deadline for inspecting elevated structures is right around the corner (December 31, 2024), one possible change is to extend the deadline for the inspections. Boards should not count on that happening. As we get closer to the deadline, more associations will be rushing to get the work done. As demand increases, two things happen: (1) there will be delays as inspectors grapple with the demand, and (2) costs will go up.
Statistical Confidence. Some would like to see a change to the statistically significant sampling. The statute requires 95% confidence that the results from the sample are reflective of the whole. To reach that level, some inspectors want to inspect every single elevated structure. Because the requirement is so high, it drives up inspection costs. Some would like to see it changed to a percentage of the elevated structures instead of confidence levels.
Concrete Balconies. Another suggestion involves concrete balconies. Currently, inspections are only required for elevated structures supported by wood. Although concrete balconies last substantially longer, they can still fail if not properly maintained (as evidenced by the collapse of Champlain Towers).
RECOMMENDATION: If you have recommendations you wish to make to the subcommittee, send your comments to [email protected]. If your association has not yet inspected its elevated structures, it should do so sooner rather than later. You can find a list of inspectors on our website.
NORCAL LEGAL FORUM
SPEAKERS
 Partners Melissa Ward and Nathan McGuire along with attorney Karen St. Onge will be speaking at the 2022 CAI Legal Forum event on September 8-9, at the Oakland Marriott City Center.
Karen will discuss the future of our industry--affordable housing, deferred maintenance, rising insurance costs, Fannie/Freddie lender forms, and manager retention. Nathan will cover how to handle nuisance issues such as noise, smoke (including cannabis smoke), odors, tree roots, and water intrusion. Melissa will discuss director and manager conflicts of interest, fiduciary duties, disclosures, and recusal requirements in policy decisions, contract negotiations, and other board decisions.
Keynote Speakers for the event will be Dawn Bauman, Senior VP, Government & Public Affairs, CAI National, and Louie Brown, CAI-CLAC Advocate.
CLICK HERE for registration information.
Congrats to Melissa on your latest honor, a fellow in an exclusive professional association working with HOAs. -John M.
Congratulations! Onward and Upward! -Mike B.
Congratulations from an HOA member, retired federal prosecutor. It always pleases me, as one who graduated from law school in 1967, to see women advance as you have. And an additional thank you to your law firm for recognizing talent and hiring in response to that factor. This is my impression of the firm over the years. -Nancy S.
As a board member, if you think it’s hard enough to get owners to update their contact info annually, our management company charges owners $5.00 to update their contact information! Post that under “how to make sure owners don’t update!” -Linda T.
Great newsletter! Regarding the balcony balusters being 4 or more inches apart, even if there is some grandfathering regarding the building codes, the insurance for the association will likely require that modifications be made. The reason behind this is because of the danger of things (potted plants, pets, etc.) and tiny humans falling through wider gaps. It is a potential safety issue that should be addressed. If they don’t want to get a non-renewal letter or a dramatic increase in premium, or worse–a liability claim, I recommend making the modifications. –Terri Guest (Berg Insurance)
Thank you so much. More HOA Board Members should pay attention to your free publications. -Rita D.
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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.
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. |
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