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MENTALLY ILL
TENANT
QUESTION: We have a renter in our complex with mental issues. He looks into windows and walks into open garages, getting up close and personal with others. He does this every day and evening. Lately, he started throwing rocks at windows. Sometimes, he is naked. The manager said it was not an HOA issue. Can the association get into trouble for not doing more to stop this behavior? -Ron Z.
ANSWER: These are the worst kinds of situations--dealing with mentally ill residents. The police should be called whenever he acts out. However, if he has his clothes on when they arrive and has not threatened anyone, they can't do anything. The lack of threats also makes it unlikely anyone could get a restraining order against him.
Call Health Services. The board could call the county's health services. Unfortunately, they lack police powers and generally require the person's cooperation to enter counseling, which is often not forthcoming. At best, they could put him in a 72-hour psychiatric hold. Once the hold is over, he is back in the community.
Put the Owner on Notice. Even if the board is not legally required to intervene, members will expect directors to do something. The best course of action is to put the owner on notice of his tenant's behavior, call him to a hearing, and levy fines.
Potential Legal Action. In addition, the board should demand the owner evict his tenant. Make it clear the association may have no choice but to sue the owner if he does not cooperate. Let him know he may be liable for any injuries or damage caused by his tenant. This approach is usually effective. Owners do not want to be in legal proceedings defending their tenant's behavior.
ARE BALCONY
INSPECTIONS LEGAL?
QUESTION:  Is it legal for the board to require inspection of a condo unit's private balcony? –Norman G.
ANSWER: It depends. Are they inspecting to see if you are keeping it clean? If so, it's dubious. If they are inspecting the waterproofing membrane, balcony railings, and structural elements, then yes. They are obligated to do so every three years to satisfy reserve study visual inspection requirements. (Civ. Code § 5550(a).) In addition, boards must comply with the 9-year SB 326 requirement to inspect elevated load-bearing structures supported by wood. (Civ. Code § 5551.)
Maintenance Obligations. Associations also have an obligation to maintain common areas and exclusive use common areas unless otherwise provided in the CC&Rs. (Civ. Code § 4775(a).) Failure to inspect and repair balconies can get an association blacklisted by Fannie Mae.
BOARD MEETING
AGENDAS
QUESTION:  A board member claims that items on a meeting agenda cannot be moved during meetings, and they cannot move the homeowner forum from the end of meetings to the beginning without the board putting it to a vote (and the proposal has to be on an agenda to even vote to move it for a following month). Is that true? –James C.
ANSWER: No, it's not true. The only things required by the Davis-Stirling Act are for associations to give notice of their meetings, which must include an agenda, and give notice by general delivery. (Civ. Code § 4920.) This can be done by posting the notice and agenda in a prominent location accessible to all members. (Civ. Code § 4045.)
Emergency Addition. The only other requirement is that boards not discuss or take action on any matter unless it was on the posted agenda. (Civ. Code § 4930(a).) There is an exception--an item can be added to the agenda if a majority of directors determine an emergency exists. (Civ. Code § 4930(d)(1).)
Board Meeting. Membership meetings are required to be conducted in accordance with a recognized system of parliamentary procedure (Civ. Code § 5000(a)), but board meetings are not. When it comes to the order of items on the agenda, there is no requirement that boards follow the order in the posted agenda. Even under the Robert's Rules of Order, agenda items can be taken out of order. RONR (12th ed.) 41:37.
FAILURE TO ENFORCE
SMOKING BAN
QUESTION:  Our CC&Rs and rules clearly state that no smoking is allowed anywhere on the property, including on balconies. In addition, a local ordinance prohibits smoking in multi-unit residential structures. Can we get into trouble if an owner smokes in his unit or on his balcony? –Kayla C.
ANSWER: Yes, the association has potential liability. Boards have a duty to enforce their governing documents.
Your board should notify the city of the ordinance violation. The city could order him to stop--but I wouldn't count on it. In addition, your board should give the owner a warning, call him to a hearing and fine him, and ultimately sue him if he continues to smoke in violation of the CC&Rs. If your board does not enforce the smoking ban, the association could be sued by residents impacted by the smoke, which is a known carcinogen.
Fire. In a worst case scenario, as happened in an association we represented, an owner fell asleep while smoking in bed. He died in the ensuing fire that destroyed his unit. Ironically, the fire did less damage to surrounding units than the smoke pouring out his unit and all the water from the fire department's hoses.
Litigation. When something like that happens, residents, especially if there were injuries or deaths, could sue the association and its board for breach of their fiduciary duties for not enforcing the smoking ban. But for the board's negligence, the fire would not have occurred, property would not have been destroyed, and injuries would not have occurred.
Insurance. In this tough insurance market, it's likely the association's insurance policy would be canceled. The board would be forced to seek replacement insurance that would likely have a higher deductible and lower coverage. It would also have significantly higher premiums, which could result in a special assessment. It's a lose-lose for everyone.
RECOMMENDATION: Enforce the smoking ban.
HIRING
EXPERIENCED ATTORNEYS
We are looking for experienced HOA attorneys for our offices in San Diego, Los Angeles and Northern California. Learn more about us here.
If you are interested, or know someone who may be a good candidate, you can contact Adrian Adams confidentially by email or by phone at (800) 464-2817.
Kudos. I just wanted to let you know how much I enjoy your newsletters and webinars. I met some of your staff at CAI functions and found them to be personable and knowledgeable. I also love the cool stuff you give away at your booth. I especially like how you are always looking for good attorneys to join your firm, and the new HOAs you keep adding. I think they are very lucky. -Betty R.
RESPONSE: Thank you Betty--you made my day.
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DISCLAIMER. Our newsletter provides commentary, not legal advice. Boards needing legal advice should have an attorney review the facts and law for their particular situation. We serve as corporate counsel to California associations.
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