QUESTION: Our board voted to use 1/3 of our common area park for a fenced in dog park without a vote from residents. Shouldn’t this be voted on by the community as grants exclusive use for dog owners? A board member said he would pay for it after a survey of the community determined residents did not want to pay for a dog park. The board also voted to develop another 1/3 for a sports court/pickleball under the same conditions. This doesn’t seem fair to residents who should be voting on an issue of this magnitude. –Verity H.
ANSWER: I can't think of a single amenity that benefits all members all the time, whether it be swimming pools, tennis courts, gyms, or dog parks. Even so, they add value to the community. If the capital improvements you mentioned are being added at no cost to the membership, that's a plus. Also, the dog park is not exclusively for dog owners; members without pets can sit on the park's benches and enjoy watching the dogs play.
Many associations have added a pickleball court or converted an existing tennis court into one. The game is very popular, especially with older people who cannot endure the rigors of tennis. Boards are elected to manage the common areas. It sounds like yours is doing a good job. If your members do not approve the addition of free amenities, they can show up in board meetings en masse and vent their displeasure. They also have the option of removing the board by submitting a recall petition.
A SEAT VACANT
QUESTION: Can we declare a seat vacant if our bylaws require certain attendance rules? We have a director that has been absent for nine months and our bylaws allow for only three consecutive missed meetings. –Ellen V.
ANSWER: Yes, they can vacate the seat. The Corporations Code allows for vacating a seat if provided for in the bylaws. (Corp. Code § 7221(a).) A common bylaw provision is to vacate a director's seat when he/she misses three consecutive regular meetings or a total of four regular meetings in a 12-month period.
RECOMMENDATION: If an association's bylaws do not contain this provision, boards should consider adding it. It allows them to replace an unproductive director.
WITH NO BUDGET
QUESTION: Can the board conduct an annual meeting without presenting a budget? -Anonymous
ANSWER: Yes, annual meetings can be conducted without an approved budget and can also be conducted without a quorum of directors. To hold an annual meeting, all that's needed is a quorum of the membership.
The penalty for not timely producing a budget prior to the end of the fiscal year is that any increase in regular assessments approved by the board is void and the prior year's budget carries over. For more information, see "Preparing Budgets."
QUESTION: If a recall of the board is in progress, can past board members run or are they barred from running? –Silvie
ANSWER: Past directors as well as directors being recalled can run for seats that be vacated by the recall. The only restriction that might apply is if immediate past directors were required to step down due to term limits. If so, they may be need to wait one year before serving on the board again.
RECOMMENDATION: Associations should include recall procedures in their Election Rules.
With the 2023 legislative year wrapping up, Adrian Adams and Laurie Poole will review new laws approved by the Governor.
They will also discuss new cases and their impact on California's community associations.
Boards and managers will want to attend to hear interesting and relevant information presented by Adrian and Laurie as we head into 2024.
There is no costs to attend the webinar. It will be held Thursday, October 26, at noon. You can Register Here.
Emails. Hi. A great newsletter and very helpful. I have a question about board emails being discoverable. Does that mean a director's emails are not confidential and do not need a subpoena to be used on a legal case by another director? –Gregg
RESPONSE: Emails are discoverable in litigation. A plaintiff's attorney can make a discovery demand on directors who are parties to the litigation.
Open Meeting Act. Thank you for the work that you and your firm do, you provide great updated information. Question regarding serial email meetings. I understand this is talking about HOA boards, does the decision also apply to other boards i.e. city councils, board of supervisors, public retirement boards, etc.? -Chuck J.
RESPONSE: The ruling only applies to homeowner associations. City councils and other public entities are governed by the Brown Act.
Thank You. Thank you as always for your most interesting & informative & important NEWSLETTER!!! Kindly keep it up. Thank YOU!!! -Anne A.
Avid Reader. I am an avid reader of your newsletters and your website. You provide a tremendous service, particularly to the broad sector of small associations like mine, who are too small to hire legal counsel. -Chester C.
|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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