In the past few weeks, as the COVID-19 aka “coronavirus” proliferated globally, local, state, and some national governments have taken strong measures to ban groups from congregating and ordering non-essential businesses to close.
Here are some suggestions which may help associations through these unprecedented and difficult times.
BOARD MEETINGS. Boards are not banned from holding meetings, because most boards are less then 10 members. However, because board meetings are open to attendance by members, how does the board restrict the group of attendees from becoming too large? Furthermore, if a board honors the “stay at home” directive, does that mean the board must halt meetings? Fortunately, Civil Code Sections 4090 and 4925 specifically allow for video or telephonic board meetings. The requirement is that all directors and any attendees be able to hear the director deliberations. Careful consideration should be given to the various web-based platforms supporting on-line audio or video meetings, because they allow the organizer of the meeting to selectively mute attendees. This allows open forum to proceed, with members able to speak to the board, and then after open forum the attendees can be muted so they can hear but not participate in the board’s deliberations.
MEMBERSHIP MEETINGS. Although the Davis-Stirling Act does not provide for HOAs to conduct electronic membership meetings, membership meetings may be conducted electronically under Corporations Code 7510. However, HOAs are the only California corporations not permitted to use Corporations Code 20 and vote electronically (Civil Code 5115 still requires the double envelope secret paper ballot process) so the agenda could be pursued via conferencing services, but paper ballots would have to be received and counted in person. “Town Hall” meetings, in which the association convenes the members for a discussion but no decision, might be particularly appropriate in these times.
ASSESSMENT COLLECTION HALT? On March 16, the Governor issued Executive Order N-28-20, which, among other things, temporarily bans foreclosures. This does not mean that members may suspend paying their assessments – the HOA still must pay the community’s common expenses, and late charges and collection costs would still attach. Associations should consult legal counsel before initiating a non-judicial foreclosure or filing a judicial foreclosure action.
COMMUNICATION. Some HOA presidents I know are already doing an excellent job of providing increased regular updates via email to all owners who have provided their email addresses. Homeowners should provide their email addresses to the association. All HOAs should increase their communication to members, to keep members connected to the HOA and each other.
FACILITIES AND AMENITIES. Some counties have ordered playgrounds, swimming pools and gyms closed during the crisis (such as Santa Clara, Orange, and Los Angeles counties). Many associations are concerned about whether all their amenities should be closed. This decision should first involve a check with the county health department to see if a mandatory closure applies. If closure is optional, the board should seek advice from the health department or other appropriate source.
BROTHER’S KEEPER. In this crisis, governments and HOAs can only do so much. Each of us must be our brother’s keeper. Since World War II, the American people have not been asked to so dramatically sacrifice for a cause – and we can again defeat THIS enemy if we all work together.
Written by Kelly G. Richardson
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.