Our HOA board has consistently said that they are having meetings to do emergency actions. I know that they talk on the telephone, decide what to say and never send out meeting minutes. They have decided to keep our gym closed. Can they close an amenity and keep it closed long past state and local authorities on the basis of under-educated people without medical consultation or proof? We already have an open swimming pool. We have had no cases of Covid-19 in our building.

R.C., San Diego

Dear R.C.:

Some HOA Boards are mistakenly applying the health emergency to override the Open Meeting Act. However, in the Open Meeting Act (part of the Davis-Stirling Act), the definition of “emergency” is found in Civil Code Section 4923. Per that statute, an “emergency board meeting” can be called “if there are circumstances that could not have been reasonably foreseen, which require immediate attention and possible action by the board” so that the normal 4-day notice to the members is “impracticable.” Many, if not most boards, have adapted their meetings to be all or partly virtual, using a variety of web-based software such as Zoom or Gotomeeting. Closing or reopening amenities may well be an emergency action, but should be disclosed in the next open board meeting. The decision to keep an amenity closed or reopen is correctly a board decision, which should consider the available health guidelines and the community’s desires.

Best regards, Kelly

Dear Kelly:

Would you opine on ability of a renter-of-condo to show up at a noticed board meeting to observe? Does it make a difference if issue involving that member is on the agenda?
[Another well-known] HOA law firm opines that renters can attend, even run for Board position, unless bylaws speak otherwise. When I asked about bylaws, nobody knows where they are. I think renters interested enough to attend a board meeting can add some input if asked and help improve the association.

M.S., Ocean Beach

Dear M.S.:

Only association members have a right to attend board meetings and speak in open forum, pursuant to Civil Code 4925. Some HOAs choose to permit tenants to attend meetings, but that can be problematic since tenants are not legally responsible for the home in which they reside and do not pay assessments. As to board eligibility, that other law firm is wrong – Civil Code Section 5105(b) states that the HOA “shall” disqualify any candidate who is not a member of the association at the time of nomination.

Thanks, Kelly

Mr. Richardson:

Can a homeowner member in the audience rise for point of order thus interrupting the board meeting? Thank you.

S.W., Bellingham, WA.

Dear S.W.:

For the purposes of parliamentary procedure, the “members” in a board meeting are the directors. The HOA members in attendance are in this context considered “guests” under parliamentary procedure and may not make motions or objections such as calling for a “point of order.” Under California’s Open Meeting Act, homeowners attend to observe the meeting, not to participate in it, except for the open forum right guaranteed by Civil Code Section 4925(b). In many associations non-directors want to participate in board deliberations, but the board’s role is to deliberate and decide.

Thanks, Kelly

 

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®.

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