Categoria: HOAs

Q: I had a hearing regarding a rules violation. I thought it was unfair and asked for an internal dispute resolution meeting. My punishment from the board was a suspension of privileges. At the IDR, the president (the one that pursued the violation against me) showed up with the member I asked for, to conduct the IDR. The president then added to the board’s discipline by adding a fine, ordering me not to attend board meetings and said all this would also apply to my wife! Is this legal? I feel that I was tried twice: once by the board and then by the president. — B.G., Palm Desert

A: If the president was the complaining party, then the president should not have participated in the disciplinary hearing or the IDR meeting due to the president’s personal conflict of interest on the matter.

As to the additional disciplinary measures, the president has no individual authority. Per Civil Code Section 5855, only the board can impose discipline after written notice and a hearing.

Also, many HOAs are erroneously suspending member voting rights as a disciplinary measure, but that is not allowed pursuant to Civil Code Section 5105(g)(1). Sorry B.G., but your board may need to remind the president that the board runs things, not the president.

Q: I spoke for my time in open forum inquiring about the status of some incomplete projects. The president screamed at me, calling me a liar and saying I was spreading misinformation to homeowners. Is this proper conduct for a president in Open Forum to scream at a homeowner? — D.S., Irvine.

A:  Open forum is the time for the board to listen, not argue or respond. The president’s response indicates a misunderstanding of the function of open forum.

Yelling in a board meeting should never be acceptable behavior, no matter how strongly someone might disagree. Remember, you’re all neighbors, and you have to live together in peace. How is that possible when if the HOA allows such behavior?

Meeting conduct rules would help your HOA, and such conduct rules should apply to all attendees – including the president. HOA leaders need to model a high level of civility, and it sounds like this is not occurring in your association. Best to you and your association, Kelly.

Q: Is it true that a homeowner who is accused of a violation cannot sue the HOA? My HOA is accusing me of something that I didn’t do, and they want to fine me. I need to take them to court if necessary. I will not be fined for something that I did not do. Is there a court remedy? — C.C., Redwood City

A: You can sue your HOA for declaratory relief if you disagree with a disciplinary decision. However, before you take such a drastic step, consider if it’s truly worth it. Pursuant to Civil Code Section 5975, the prevailing party in a dispute over enforcement of the governing documents is to be awarded their reasonable attorney fees. This could be a very expensive gamble. Consider the overall picture and decide whether the expense of your own attorney and the risk of an expensive adverse outcome, is worth it. Sincerely, Kelly.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association expertise. Submit column questions to Kelly@roattorneys.com.

Kelly G. Richardson | Contributing Columnist Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice.

Q: No one on our HOA board has been elected and they all remain on by default year after year. We never meet quorum. I suspect foul play and would like to have the property manager as well as the board members investigated. I was wondering if you had any ideas on how we can investigate them all. — C.M., Pomona

A: Low voter turnout in HOA elections could be caused by member discouragement, but it also could be caused by contentment and a lack of desire to have different people staff the board of directors. Either way, directors can sit on a board for years without ever being re-elected. There may be some hope on the horizon from Assembly Bill 1458, recently introduced in the California Legislature.

Assembly Bill 1458, by Member Ta of Westminster, would add a new subpart 2 to Civil Code Section 5115(d), allowing a member election that fails for lack of quorum to proceed within 5 to 30 days later, changing the quorum to be those members participating. It’s very early in the legislative session, so it is very difficult to predict if the bill has a chance.

Generally, I find that boards are staffed by well-intentioned people, and outright foul play is rare. However, boards can easily create the impression that they are hiding something when they become defensive in response to criticism and behave in a less transparent manner.

HOAs are little democracies – if you talk to enough neighbors who want a new board, you can elect a new board.

Q: An HOA that I am involved with is holding upcoming elections and is looking for a truly independent inspector of elections. I am wondering whether you know of any paralegals or junior associates who might be willing to perform that function for a modest fee or as pro bono work to enhance their resume. —C.S., Los Angeles

A: The HOA election reforms from 2005 and Senate Bill 61 dramatically changed the way HOA elections are conducted. One new requirement was that an “inspector of elections” be appointed to run the election and count and announce the vote. This created a small cottage industry of election inspector businesses. However, not all HOAs need professional inspectors.

The law allows the board to appoint a volunteer inspector, so long as they are not a director or candidate and are not related to a director or candidate (Civil Code Section 5110(b)). Management and legal counsel can assist the Inspector but cannot act as Inspector.

Q: Can a member waive their “secret ballot” vote and sign, date and return a ballot via e-mail? — D.K., Novato

A: No. California law, unfortunately, does not permit voting for directors, governing document amendments, or major assessments, by any other method than secret written ballots contained in sealed envelopes. The procedure, described in Civil Code Section 5115(c), does not allow for emailing or faxing of a ballot. Interestingly, California HOAs are still the only nonprofit corporations in California that are not allowed to use electronic voting.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association expertise. Submit column questions to Kelly@roattorneys.com.

Kelly G. Richardson | Contributing Columnist Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice.

The typical condominium project consists of three categories of property: the “separate interest” (normally called the “unit”), the “common area,” and a subset of the common area called “exclusive use common area.”

Misunderstandings regarding exclusive use areas lead to many avoidable disagreements. Simply put, exclusive use areas are not “your” property but are a portion of the common area set aside for one member’s use.

The unit is normally defined in the “notes” portion of the condominium plan, an important but often overlooked document.

While some developers have become more creative, the typical condominium unit configuration is a box of airspace surrounded by the unfinished surfaces of walls, ceilings and floors. Everything else is “common area.”

However there are many areas that are common areas but which clearly are intended for the use and enjoyment of a single unit owner, and these areas are called “exclusive use common areas.”

Exclusive use common areas are sometimes defined in the Condominium Plan or CC&Rs, but Civil Code 4145 provides a default definition if the governing documents do not fully cover the topic including: “shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes and hardware … screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest…”

Fixtures serving a single unit but existing outside of the unit boundaries may include water heaters or air conditioning equipment, for example.

Many condominiums are bought with the mistaken belief that the exclusive use area, such as a balcony, or patio, is “theirs” and so the HOA has nothing to say about it. Unfortunately, members often think that, because their use is exclusive, their control of the area is also exclusive and so the HOA has no say. That can lead to enforcement situations and disputes because associations can control how exclusive use areas are used and typically have various rules regulating their use.

Who maintains exclusive use common area? Who repairs it? Is the broken window or leaky water heater an association concern?

The inquiry usually starts by reviewing the governing documents regarding the area in question to determine if it is exclusive use common area, followed by analyzing who maintains it and who repairs it — and the two responsibilities might not be placed on the same party.

If governing documents do not answer the question, the Davis-Stirling Act fills in the blanks. Under Civil Code Section 4775, the association repairs, replaces and maintains common area and repairs and replaces exclusive use common area, and the member maintains the exclusive use common area unless the CC&Rs state otherwise.

Note that only association CC&Rs can allocate repair and maintenance responsibility differently than Civil Code 4775 – HOAs cannot do this in rules. Therefore, many association rules presently in place may be invalid to the extent they purport to allocate such responsibility.

Exclusive use areas are often misunderstood as the unit owner’s property, but such areas are still part of the common area and therefore jointly owned with all other owners and subject to association control.

“Use” is different than “control”, and maintenance responsibility may be allocated differently than repair responsibility. Exclusive use is a necessary complication of shared ownership, and better understanding will enhance enjoyment and reduce conflict.

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com.

Q: It seems our HOA is hiding behind an over-used Covid excuse to hold their meetings virtually. Is there currently a requirement for these meetings to be exclusively virtual? Has such a past law been repealed or expired so that we are back to in-person? — J.H., San Diego

Q: Until COVID-19, our monthly HOA board meetings were held near the community. Since early 2020, the board meetings have been held via Zoom only.  When I inquired about in-person meetings resuming, I was told that it was not something being considered by the board.  Based on one of your prior articles, it appears virtual-only meetings are illegal since the emergency conditions have passed.  Am I correct? — R.R., Rancho Santa Margarita.

A: In 2020, a number of counties banned meetings indoors of more than five unrelated persons. So, HOAs had to choose between violating the health orders or the Open Meeting Act. During those months, most HOAs chose to obey the health orders and began to have purely virtual meetings. Most if not all of those bans on indoor meetings ended in 2020, so it became no longer illegal to have in-person HOA board meetings. However, many HOAs continued to meet in violation of the Open Meeting Act by meeting completely virtually and not having a physical location where someone could attend in person with an HOA designee also present.

In 2021, Senate Bill 391 was passed and became law in September 2021, and many (including lawyers) have used the statute as a justification to continue with purely virtual meetings. Unfortunately, the new statute, Civil Code 5450, is being widely misapplied since it says that HOAs can meet purely virtually if a declared emergency renders it “unsafe or impossible” to meet. I am not aware of any jurisdiction in California that (in 2021, 2022, or presently) has banned indoor meetings (ask anybody who attends church, movies, restaurants, or indoor sporting events!). You can check http://www.covid19.ca.gov to confirm.

HOAs must comply with the Open Meeting Act and hold either hybrid or in-person open board meetings.

Q: Our HOA meetings have been 100% virtual since March 2020.  You wrote that an in-person option was required with “at least one director or HOA designee present.” Our board has no interest in holding in-person meetings and designated the management company’s office, 12 miles away, as the location for in-person meetings despite our clubhouse is within a 5-minute walking distance of all homeowners. Are there any guidelines or qualification requirements concerning the individual they designate as the “HOA designee” for the in-person location? — D.D, Huntington Beach.

A: Civil Code 4090(b) allows for virtual participation in HOA board meetings but requires that the board announce a physical location at which at least one director or someone else the board designates will be present, for persons who do not wish to call in or log in to the meeting. There is no further guidance in the statute about who can be designated, so it could be a director or anyone else the board designates. However, having the physical location 12 miles away instead of the on-site clubhouse might seem disrespectful to members who prefer personally attending.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association expertise. Submit column questions to Kelly@roattorneys.com.

Kelly G. Richardson | Contributing Columnist Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice.