|
POSTING DOCUMENTS
ONLINE
QUESTION:  My HOA does not post its CC&Rs, rules, meeting minutes, approved budget, etc. Our management company will not use an online portal because they said it opens us up to lawsuits because people with disabilities may not be able to access the portal. Can you please advise whether their statement is true? –Maia V.
ANSWER: No, it's not true. I suspect your manager is not licensed to practice law. The Americans with Disabilities Act does not apply to homeowner associations unless it makes its facilities and services open to the general public.
Some associations post their governing documents online where the general public can see them. Others post them in a password protected area of the website open to members only. I recommend password protected access. You want your documents available to your members only, not the general public.
REDUCED QUORUM
FOR ELECTIONS
QUESTION: If our 50% quorum is not achieved, is there a requirement that another vote take place but with a 20% quorum requirement? If so, how quickly does this need to take place? –Larry K.
ANSWER: No there is no requirement that your association vote again using the 20% quorum. It is optional for associations. If members want to take advantage of a reduced quorum, a simple majority of those members present at the meeting can adjourn to a later date. (Civ. Code § 5115(d)(2).) The date must be at least 20 days after the scheduled election. In addition, not less than 15 days prior to the reconvened meeting, the association must send out a notice of the meeting. For more information, see "Reduced Quorum--Adjournment."
Recommendation: To avoid quorum problems in director elections, amend your bylaws to drop quorum requirements altogether. We have done so for many associations, and it greatly simplifies their elections and eliminates the expense of adjourned meetings.
EMERGENCY ASSESSMENT
FOR INSURANCE
QUESTION: Can an association do an emergency special assessment for an insurance premium that is $83,000 over the anticipated budgeted amount for 2024? –Larry B.
ANSWER: Associations cannot operate without insurance. The exposure is too great and they are required by their governing documents to carry insurance. Boards can either impose an emergency special assessment or make a midyear budget adjustment to cover the higher premium.
NOTE: Even though insurance premiums don't directly fit under the Davis-Stirling definition of an emergency. it fits under the third defined emergency related to common area repairs. If the common areas suffer damage from floods or fires, they must be repaired. That is where insurance comes into play. (Civ. Code § 5610.)
CANDIDATE MUST ATTEND
ANNUAL MEETING?
QUESTION:  As an inspector of elections, I have an association that insists a candidate must be present at the election if their name is on the ballot. If they are not present, they forfeit the election. Is this legal? -Doug G.
ANSWER: No, it's not legal. It creates another qualification for election that violates the Davis-Stirling Act. The only qualification for election to the board is that the person be a member of the association. Associations are allowed to adopt a limited number of other qualifications involving (i) delinquencies, (ii) joint ownership, (iii) length of membership, (iv) criminal convictions, and (v) term limits. Presence at the election is not an allowable qualification for election to the board. For more information, see "Candidate Qualifications."
MORE BALCONY
INSPECTION QUESTIONS
Fire Escapes.  Does this law refer to fire escapes? My three-story San Francisco condo has metal ladder fire escapes that service 12 units. While the fire inspector calls the walkways a fire escape I've seen realtors and the property manager refer to it as a balcony. –Linda B.
RESPONSE: It does not matter what they are called or if they are made of metal. If they are more than six feet above ground and supported by wood products, they have to be inspected. (Civ. Code § 5551.) You don't want to have a fire in your building, step onto your fire escape, and have it collapse. Or be the next person in line who can't escape because the fire escape collapsed when the first person stepped on it.
A Few Balconies. Only a few units in our building have balconies. Is this still the association's responsibility to inspect and repair the balconies, or would that be the owner's responsibility? –Arbi Z.
RESPONSE. If your development is composed of condominiums and at least three the units have balconies, they must be inspected and repaired by the association. (Civ. Code § 5551.)
Replacing Railings. Per California Building Code Section 302.4, Existing Materials already in use in a building in compliance with requirements or approvals in effect at the time of their erection or installation shall be permitted to remain in use unless determined by the building official to be unsafe. -Adam R.
RESPONSE: I thought so. Thank you for the confirmation.
Country Club Balcony. I live in an HOA that has a country club. We have outdoor dining as an option, the balcony hangs over about 15' and is approximately 25' in the air. Would this qualify as a maintenance item that requires inspections? –Tomas H.
RESPONSE. The statute does not apply to your country club balcony. However, your board should authorize an inspection. If the balcony were to collapse and people were injured or killed, it is guaranteed your association would be sued. It is cheaper to inspect and repair than to litigate, inspect and repair.
Safety Report.  Inspections were completed and they indicated issues on 23 balconies. Can all owners see these reports? –Susie V.
RESPONSE: I favor releasing the report, other attorneys do not. I can understand why boards might not want inspection reports leave the community. But I see no reason why owners can't go to the management office and read the report. Your board should consult legal counsel to decide how best to handle the release of the report.
Flush with the Building. Our balconies are flush with the building facade. Does this inspection apply to us? –Jason H.
RESPONSE: No, it does not. See "Elevated Structure Inspections."
Informative. Thank you for all the informative info. –Sharon H.
Hawaii. I am 95 and have been a “loyal subject” of ADAMS|STIRLING for over 18 years, and love every issue!! THANK YOU for all your efforts!!!! Hawaii has always been about ten years behind the rest of the world and I live in a Condo in Kaneohe. How can I obtain a copy of California's law on inspecting balconies? This could be a life saver! Thank you personally for your good advice and Humor!!!!! Aloha! -Bob A.
RESPONSE: Thank you for being a loyal subject. I will knight you on my next trip to Hawaii. You can find the law here: Civil Code § 5551. For an explanation of the law, see "Exterior Elevated Elements." In the upper right-hand corner of each page is a print icon. If you click on it, you can print the pages.
Awesome. That was an awesome webinar. I'd be lost without DS.com and your YouTube channel. Thank you so much! –April P.
Great Summary. Thank for a great summary and explanation of the balcony inspection requirements. I appreciate your time and effort to help HOAs. –Ray D.
Hello! Hello! I love your newsletter. –Maia V.
Thank You. Thanks so much for all of the information in your newsletters. -Doug G.
|
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. |
|
|