Where There’s Smoke, There May Be Unhappy Neighbors

Where There’s Smoke, There May Be Unhappy Neighbors

Dear Kelly, My tenants are extremely allergic to smoke – the tenants next door smoke around the clock. I have been working with our board and management, and still the situation has not improved. Our CC&R’s call for “no noxious odors”. I may be losing my tenants. Any suggestions? Thank you, D.M., Costa Mesa Dear Mr. Richardson, I live in a gated community of single family homes on small lots. I’m wondering if there are any restrictions for cigarettes, cigars or pipes. One owner is asthmatic and lives next to a chain smoker that smokes only outside. Another dislikes the smell and must close windows when the neighbor smokes. Thank you in advance, T.G., Simi Valley Hi Kelly, The HOA Board made a rule a few years ago to make our complex a “non-smoking community.” This was done without any information to home owners or requested feedback. I recently learned that smoking is even prohibited inside units! I resent being told what I can or cannot do in my own home. What’s next? All lights out by 11:00? I smoke only in my living room and use a large air cleaner, with all windows closed. Regardless, my neighbor frequently complains smoke is coming in their unit. There is nothing in the CC&R’s about this. Can a board impose this rule on me? LM., San Diego Dear D.M., T.G, and L.M., Our society is smoking less. Adult tobacco smoking declined by 51% between 1988 and 2016 (California Department of Public Health statistics) and public acceptance of the habit also is clearly declining. Many California cities have various smoking bans in place. Can smoking inside...
We Don’t Like Non-Resident Directors, or Pot Farms, in Our HOA

We Don’t Like Non-Resident Directors, or Pot Farms, in Our HOA

Dear Kelly, Are board members required have to own and live on site to become a board member? I am not finding any information on this in my CC&Rs or rules and regulations, and was wondering if you could shed some light on this question for me. Thank you in advance, K.Y., Downey Dear K.Y., Board eligibility standards under the Corporations Code are minimal – a director cannot be a felon and cannot be declared legally incompetent by a court. HOA eligibility standards are usually found in bylaws but can also be found sometimes in the election rules. The Friars Village v. Hansing case from 2013 confirmed that eligibility standards can be placed in election rules, so long as they do not conflict with the bylaws or CC&Rs. Some associations amend their bylaws or rules to bar directors from running for the board or serving as director if they are non-residents, have missed several meetings, are suing the HOA, or have a spouse or co-owner already serving on the board, to give some examples. However, a bill pending in Sacramento may change all that. Senate Bill 1265, authored by Senator Wieckowski, would overturn the Friars Village v. Hansing decision. If SB 1265 becomes law, the only disqualifications for board service will be if the person is not a member, has committed a felony involving financial dishonesty, or is confirmed delinquent after an internal dispute resolution process. If the bill becomes law, all other bylaw provisions regarding board eligibility will be voided, basically amending all bylaws. SB 1265 passed the Senate on May 30 by 25 to 12, and is...

New Year’s Resolutions [Part 2] – The HOA Member

I, the HOA member, resolve to: Number one: Follow the Golden Rule: treat others as you would like to be treated. My attitude: Not refer to the HOA or board as “they,” since it is all “us.” The directors are also members who pay assessments and give their time to benefit us all. Be neighborly, because shared ownership fails without cooperation. Assume our directors are doing their best as volunteers, and give them the benefit of the doubt. Not first assume the board is incompetent or dishonest when I believe it is overspending. Avoid the “my home, my castle” attitude. We share the benefits of common interest ownership, which means we also agree to share the control of our property. Ask questions before making statements, criticizing, or even accusing. Acknowledge the board may have more information than me. This doesn’t mean the board is right, but it does mean my opinion might not be fully informed. Take the long view of our association property, supporting growth of our capital reserves fund and maintaining our buildings. Be knowledgeable: Read the information the HOA sends to me. Be familiar with the CC&R’s, bylaws, and rules. I will reduce confusion and disputes by understanding the use restrictions and rules. Read the association budget and reserve study. I will ask informed questions, particularly about deviations from budget. If I ask to review financial documents, I will not ask for “everything,” and request only documents which I really need, acknowledging my manager is not a librarian. Help board meetings: Insist the board follow the Open Meeting Act, and only handle in closed session the...
11 Sure-Fire Ways to Frustrate HOA Elections

11 Sure-Fire Ways to Frustrate HOA Elections

Most associations have member voting at least annually, and the process required by statute applies to all HOAs, whether 2 units in Redondo Beach or 3,000 units in Oakland. Avoid these mistakes which can doom HOA elections. 1. Ignore the procedure Civil Code Sections 5100-5135 provide a process which must be followed on member votes regarding major assessments, governing document amendments, grants of exclusive use rights, and board elections. Many smaller HOAs either intentionally or ignorantly do not follow the process, leaving their elections open to challenge. 2. Don’t have election rules Civil Code 5105 requires HOAs have written election rules in place. These rules help answer questions in advance, making for more organized and fairer elections. 3. Forget to appoint an inspector of elections When setting an election, associations occasionally fail to appoint or hire an inspector to conduct the process. This appointment must occur in an open board meeting. Inspectors may be paid professional vendors or may be homeowner volunteers. 4. Allow proxies Most developer-supplied original HOA bylaws allow for the use of proxies, by which members give to another member the right to vote on their behalf. California statutes provide little guidance as to what is a valid proxy, and proxy disputes (and sometimes chicanery) are a common problem in HOA elections. Proxies are unnecessary, since on most important HOA votes members receive ballots 30 days ahead of the election. HOAs are better served by, through member vote, amending governing documents to ban proxies except for the narrow purpose of achieving quorum. 5. Skip vote counting in uncontested elections It may make no sense to go...

Don’t Make Them Guess: Is Your HOA Architectural Application Process Complete?

A fundamental HOA purpose is to preserve the association’s architectural theme, typically protected by rules administered by an architectural committee or the board. If a homeowner wants to change the entry door color, the style of windows, or install a skylight, how does the owner know if the request is worth the effort, and how do they know what is the HOA’s application process? Well-run associations should have reasonable architectural standards and a reasonable application process, all set forth in written HOA rules. Consider some of the following subjects which can be included in those rules. Licensing and insurance If the proposed work requires a licensed contractor, the work should be performed by a licensed contractor who has proof of liability insurance and workers compensation insurance. Permits If the proposed work requires a city building permit, the applicant should provide proof of permits as a condition of approval. Hours of work To protect neighbors, work should not begin too early, or continue into evening hours when adjacent homeowners are beginning to rest. Common area alterations The owner should be required to take all responsibility for approved modifications to common area, so future repair and maintenance of the alteration will be by the owner, not the HOA. The owner should also be required to accept responsibility for future problems created by the common area alteration. One way of securing such promises is to make the permission conditional on the owner signing a written agreement relieving the HOA from such responsibility. I call those “common area alteration agreements,” which are best recorded on the title of the residence, so future owners...