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December 6, 2005
QUESTIONS ABOUT OWNERS RIGHTS
Here are some questions from a homeowner about meetings and homeowner rights.
Question: Do HOA boards in general have problems with open meetings?
Answer: Some HOAs have problems with meetings. Those that know and honor the legal requirements would tend to have fewer problems than those without any structure or design.
Question: When did §1363.05, the Open Meeting Act, become effective, and who is the author? Any background regarding this legislation is appreciated.
Answer: The law came into play several years ago, in part to respond to a general misconception that The Brown Act applies to HOAs and in part because of anecdotal complaints to legislators about HOA meetings. (PS -The Brown Act does not apply to HOA meetings; it relates to public government meetings.)
Question: Executive session meeting considerations are specific. However, there are no witnesses at these meetings. Homeowners aren't present to know what is being discussed or how decisions are being made. Is there a procedure that can be recommended regarding executive session abuse prevention and/or resolution?
Answer: The executive sessions are legally protected because the purposes are to allow the Board a forum to discuss matters in private that may have legal ramifications, such as strategy in a lawsuit, delicate personnel matters, competitive bidding issues and negotiations, and private disciplinary items.
Question: Executive sessions are to discuss litigation and formation of third party contracts. Yet the appropriation of homeowner funds are being discussed. Litigation and third party contracts are relevant to homewners.
Answer: True, However, there are legal limitations (protections) on use of the funds collected by the Association to cover expenses and fiduciary responsibility for contracts executed by the Board.
Question: With existing legislation, when and how is disclosure to homeowners authorized?
Answer: As to executive sessions, the Board must announce at and the minutes of the next open board meeting must reflect that an executive session was held and the purpose must be stated. (This assures that owners can see what the meeting was about, and whether it fits into a category of executive session privileged purposes.)
Question: Can attorney-client privilege extend to homeowners who are the paying clients being represented by a board of directors?
Answer: It is possible that the privilege could be ex tended to homeowners if there was a good reason to do so. But more often, and more likely, there is not a reason, and protecting the privilege so that the Association does not end up at a disadvantage in a lawsuit or other matter that requires legal strategy for success becomes of utmost importance. So it is not often extended beyond the Board and management.
Question: May Association contracts be made available to homeowners after their formation?
Answer: After July 1 of 2006, some contracts will have to be made available for review, upon a proper written request. There are exceptions as well. Watch the website www.clac.org for the specifics on AB 1098.
Questions, Questions, Questions, this reader had many!
Posted by Beth Grimm at December 6, 2005 8:44 PM