Reader Questions – They Aren’t Enforcing The Rules!

Reader Questions – They Aren’t Enforcing The Rules!

Kelly: Residents in our HOA are encouraged to report rule violations. I and others have reported violations directly to the manager, primarily because the phone numbers and email addresses for any of the board members are not public for the residents.  How do we follow up on reports of violations and/or obtain statuses? Some of these reported violations have not been taken care of in over a year.  When I asked our manager and our president, they each said they could not divulge this information.  What can we do? E.R., Chula Vista Dear Kelly: I live in a small HOA and each homeowner is responsible for home exterior maintenance.  The current board will not enforce any of the community rules because they do not want to offend any of the residents with violation letters. What are my options since our neighborhood is beginning to look shabby? Thank you, J.M., Newport Beach Dear Mr. Richardson: Our board members do not adhere, follow, or enforce any of the HOA policies.  What can we do about them not fulfilling their obligation? J.D., Yorba Linda Dear E.R., J.M., and J.D.: Enforcement of association operating rules is a basic function of the board. Per Civil Code Section 5975(b), only the association can enforce rules. Homeowners can enforce CC&Rs against their neighbors, but not rules. It can be frustrating when it appears the association is not acting against violators. Associations should keep their disciplinary actions confidential. So, once a complaint is received of a CC&R or rule violation, the complaining party needs to trust that the HOA is handling it appropriately. Typically, if there is...
Reader Questions – Meetings During A Pandemic

Reader Questions – Meetings During A Pandemic

Dear Kelly: Our association cancelled the March meeting and then April’s meeting was held by a teleconference with just the board members. Is this legal? We have not received any information about what was discussed in this meeting. Thank you, S.V., Portola Hill Dear S.V.: Associations are finding that virtual web-based platforms work well for board meetings. Civil Code Section 4090 allows for telephone or video meetings so long as all persons can hear and/or see the open session deliberations. The problem is that the statute also requires a physical location to be established where members can physically attend. During the “stay at home” orders, HOAs are unable to accommodate a meeting of many persons in one place, so under unprecedented circumstances that requirement cannot be met. Boards should learn to conduct proper virtual or telephonic board meetings. Also, minutes of that April meeting should have been made available within 30 days of the meeting, per Civil Code 4950. The Open Meeting Act is still in effect, even during the pandemic. Sincerely, Kelly Good Evening Kelly: I read in a recent column that an officer can be replaced without reason at any time by a board majority. Can a board also fire, by majority vote, a board member without cause?  Our governing documents are silent on this and we have a divided and feuding board split on every decision. Thanks for the public service you perform. Best, J.W., Huntington Beach Dear J.W.: Normally, HOA bylaws provide that officers serve at the pleasure of the board and can be replaced in an open meeting (after agenda notice) for any reason....
Reader Questions – Are Our Reserves Being Handled Properly?

Reader Questions – Are Our Reserves Being Handled Properly?

Mr. Richardson, hello: Is there a formula for the reserve funds that are necessary, or at least advisable, for a HOA? Also, can an assessment be collected from each homeowner and put in reserve and then returned to them after a reasonable time if it’s not needed? Respectfully, B.K., San Diego Dear B.K.: HOAs in California are required by Civil Code Section 5550 to obtain a reserve study every three years and to review it annually. That reserve study informs the HOA as to how much money needs to be set aside each year to offset the ongoing deterioration of the common area elements included in the reserve study. There are many fine companies specializing in preparing reserve studies for HOAs. Without a good reserve study, the HOA has no roadmap for its financial security. As to assessing for money beyond that prescribed by the budget and reserve study, Civil Code Section 6600 requires that associations only assess for actual anticipated expenses. Assessing for a “rainy day fund” is not allowed. Best regards, Kelly Dear Kelly, Our board has not raised assessments for four years. The reserve budget is less than 7%. If the board raised assessments as recommended by the reserve study and the management company, it ought to be higher this year. Can I pursue the board for failing in their fiduciary capacity? E.Y., Pacoima Dear E.Y.: Budgets should follow the HOA’s projected actual expenses and the reserve fund contribution prescribed by the HOA’s reserve study. Budgets should reflect reality, not wishes. Some boards err by refusing to adopt realistic budgets which allow for the normal increases...
Reader Questions – Pandemic Questions Continue

Reader Questions – Pandemic Questions Continue

Kelly, I am on the board and we are having our first HOA virtual meeting next week because of Covid-19. Do we need to have a quorum for that meeting? I appreciate your help and enjoy your HOA Homefront each week. R.S., Garden Grove Dear R.S.: The declared state of emergency in California does not mean the Open Meeting Act or your bylaws have been suspended. Many HOA boards are mistakenly thinking that everything now is an emergency, and thereby dispense with the required transparency under the law. Quorum, notice to members, and openness are still the requirements, even during this emergency. Civil Code Section 4923 defines “emergency” as “circumstances that could not have been reasonably foreseen” requiring immediate action. There are few topics which cannot wait four days for proper notice to members. Also, meetings can still be in the open. Telephonic or electronic meetings are permitted by Civil Code 4090(b) and 4925(a) – so there is no reason to hold improper closed or emergency meetings. Even in times such as these, proper association governance is not suspended – there is no “HOA martial law” in effect. Best regards, Kelly Dear Mr. Richardson: Our residents are concerned about cases of Covid-19 in our HOA. Our manager told us that legal counsel said because of HIPAA rules they are not obligated to report if there are or have been any active Covid-19 cases. We are not asking for names, just a knowledge of whether there are or have been Covid-19 cases. What is our HOA responsibility in this matter? E.K., Oceanside Dear. E.K.: I have had many association clients...
Reader Questions – Are HOA Board Term Limits Allowed?

Reader Questions – Are HOA Board Term Limits Allowed?

Mr. Richardson: I appreciate your column in the [paper]. Many of your topics are extremely helpful. According to our election rules and bylaws, no director shall serve more than two consecutive terms. The president now claims that SB323 has done away with term limits and she can run again and continue to serve on the Board for a third consecutive term. She also claims our attorney said there are no longer term limits, however, no board member has been allowed to see that correspondence. Please, would you help to clarify this? I’m hoping you can provide some direction. L.K., Westchester Dear Kelly: First I’d like to thank you for all the great articles I read in the [paper]. Our HOA does not have term limits for board members. There are plenty of us that would like to have term limits and I’m shocked that when the HOA was created that this was excluded. Thanks, A.T., Beaumont Dear L.K. and A.T.: Many HOAs find term limits useful to ensure a healthy turnover of the board and have bylaws which limit consecutive terms of service. On the other hand, HOAs having difficulty in filling their board seats may find term limits to be undesirable. The key is for each association to adopt a system which works for its community. However, a change in the law this year may take that option away from California common interest developments. The new law now in force from last year’s SB323 appears to have eliminated term limits from HOAs in California. Civil Code Section 5105(b) lists one mandatory disqualification for board candidacy – non-membership –...
Harassment and Handicapped Parking Questions

Harassment and Handicapped Parking Questions

Hi Kelly, Perhaps you have an answer to the following case. A homeowner in our HOA (he might have a form of mental illness) is said to have harassed a new homeowner couple based on his objection to their interracial marriage.Some homeowners are asking the board to take action against the harassment, they claim cases like this have been ruled to be a HOA responsibility. I am looking at it as a dispute between two homeowners, a case for the police to settle or by dispute resolution. K.N., Santa Barbara Dear K.N.: HOAs must do what they can to respond to harassment of residents because of their membership in a protected class. This has been part of the regulations issued by the U.S. Department of Housing and Urban Development since the Fall of 2016. As of January 2020, it is also a requirement under California’s Fair Housing Regulations. Associations, their boards, and their managers may not stand idly by as residents are harassed because of their having one of the many of the characteristics protected by law. The law requires associations to investigate the allegation, try to determine what happened, and to do what they have the power to do to try to stop the harassment. The failure to properly respond to discriminatory harassment could subject the HOA, its board and its manager to enforcement action as well as a civil lawsuit and request for damages by the aggrieved resident. All residents in homeowner associations deserve to live their lives free of the fear that someone may abuse them solely because of their skin, language, gender, or other characteristic...
Reader Questions – Board Contacts, Discussions, and Elections

Reader Questions – Board Contacts, Discussions, and Elections

Kelly: Is the HOA required to supply the state a current list of the board members? Is the list available for public view? I am not a member of the HOA. G.O., Agoura Hills Dear G.O.: If you are not a member of the HOA, the only public information available is on the Secretary of State’s website – www.businesssearch.sos.ca.gov. This site will give you the correct legal name of the corporation (if the HOA is a corporation) and is updated at least every 2 years. It will also provide you the names and contact information for the CEO/President, Secretary and CFO/Treasurer (but often the management company lists its own address for each of the officers). Thanks for your question, Kelly. Mr. Richardson, I read your column each week in the [paper] and have learned many great tips. I have a question about board members talking to each other about issues outside of the meeting sessions. I prefer to make sure the association is always protected and indemnified with all contracts and work orders. In order to do so, I want to develop an agreement that would protect the association but would like to get input from my other board members. Does the Davis-Stirling act preclude any conversation, or interaction prior to a meeting to develop documents and reviews that would be brought to the open session board meeting for discussion and or approvals? Thanks, D.G., Orange. Dear D.G.: If a quorum of the board is discussing an HOA topic at the same time or in email, it violates the Open Meeting Act. Civil Code 4090 says if a quorum...
Reader Questions – The HOA Is Not Handling Our Common Area!

Reader Questions – The HOA Is Not Handling Our Common Area!

Dear Mr. Richardson: Our deck, which is the HOA’s responsibility, has been rotted and deemed dangerous to walk on for over two years. The association claims they are fixing the decks one by one as they get the money. We are finding it hard to rent the unit because of the unavailability of the deck. Does the association have to levy a special assessment, or do we just have to wait? Thank you, C.B., Dana Point Dear C.B.: The obligation to maintain common area normally arises from the CC&Rs and Civil Code 4775. The statute does not allow for a financial hardship exception. Associations should pursue common area repairs with reasonable diligence, and that sometimes can require a special assessment or bank loan. Under Civil Code 5551, new in 2020, HOAs are required to inspect a sampling of “exterior elevated elements” every nine years, with the first inspection completed by 2025. The statute also does not contain a financial hardship excuse. A safe building is a paramount concern. If someone is hurt by a known unsafe condition, it may not be a sufficiently strong defense to say “but we didn’t have the money for repairs.” Hoping things improve, Kelly Dear Kelly – Question: When I moved into my home during many years ago, the CC&Rs stated that if a neighbor’s trees were growing above the roofline we should send a letter to our association and they in turn would send a letter to the offending homeowner requesting the trees be trimmed. I sent a letter to my association asking that they notify my neighbor as to the trees that...
Reader Questions – Is HOA Making Solar Installations Too Difficult?

Reader Questions – Is HOA Making Solar Installations Too Difficult?

Hi Kelly, Good morning. My HOA is requiring me to install “critter guards” as part of my solar installation, but this will cost me over $1,000. Can the HOA force me to undergo this expense? Your valuable advice is highly appreciated. Thank you very much for your help. With Best Regards, C.J., San Jose Dear C.J.: Civil Code sections 714, 714.1, and 4746 establish a strong legal preference for solar energy installations in California HOAs. Although a restriction which is “reasonable” is allowed, a restriction which either adds $1,000 or 10% to the cost (whichever is less) is not reasonable and is specifically not allowed. If there is no reasonable way to meet the “critter guard” requirement without a cost of over $1,000, you may want to bring that information to your board, along with a copy of the statute, (and perhaps this column also). Associations that make the wrong choice on this subject are exposed to not only damages and attorney fees, but also a civil penalty. However, don’t rush to court – show your board this information and help to educate them. Most HOA disputes begin with a disparity of information, followed quickly by assumptions of ill will by each side. This is something that should be quickly worked out as neighbors, once everybody has the same information. Thanks for your question. Sincerely, Kelly Dear Mr. Richardson: The problem with Civil Code 714.1 and its permission of “reasonable standards” for installation of solar panels is that many HOAs are proposing egregious indemnification agreements that go far beyond the maintenance and repair requirements such a system might develop....
Reader Questions – Can They Take Away My Sunshine (Energy) Away?

Reader Questions – Can They Take Away My Sunshine (Energy) Away?

Hi Kelly, I read your column about HOA’s regularly, and I enjoy it. Can a HOA prevent us from placing solar panels on the roof of our condominium townhome? If we agree to be responsible for the repairs needed due to our solar panels, do we have the right to place solar panels on our roof? M.F., Carmel Valley Dear Mr. Richardson: Can my HOA deny me from installing solar panels on my roof? M.H., Rancho Santa Fe Dear Kelly: I was told we could not install solar because it would void our roof warranties. Can our management company ban installation of solar because of that reason? D.D., Cypress Dear M.F., M.H., and D.D.: So long as you comply with reasonable restrictions (those are stated in Civil Code 714.1 and 4746), no, the HOA cannot arbitrarily deny homeowners seeking to install solar energy systems. As per Civil Code 714(b), the policy of the state is “to promote and encourage the use of solar energy systems and to remove obstacles thereto.” Civil Code 714 proceeds to implement that policy by protecting solar systems and making it illegal for HOAs to ban them. Under this statute, “effectively” prohibiting or restricting solar systems is illegal. Reasonable restrictions are allowed, and those are defined as something which does not increase the cost by $1,000 or 10% (whichever is less) or does not reduce the efficiency by more than 10%. HOAs which willfully violate this law could be liable for damages, a $1,000 civil penalty, and attorney fees. Hoping this helps to shed some light, Kelly Dear Mr. Richardson, I submitted a formal application...