« May 2006 | Main | July 2006 »
June 30, 2006
APATHY IN A BOARD ELECTION
A reader from the Guru site sent this recently:
"Explain something to me -
Our elections are coming up in a two weeks. Two Board positions are open. Only two people have put forth their desire - nominations - to be on the Board. The current Board solicited several times in mass mail to all the members and locally on site. Only two have stepped forward.
How does this effect the election process? There are only two. They MUST be elected or there is no Board.
Do we still go through the "send out the proxies, have everyone vote?"
This question comes up at least once a week. Apathy with a big "A" is a very big problem in HOAs, as I have said again and again, and written about again and again. (There is an article on the Guru site http://www.californiacondoguru.com all about Apathy, with some suggestions about generating interest, by-the-way.)
In answer to this reader's question, some professionals giving advice would say to keep trying until you get there (in the context of noticing meeting after meeting, or sending out ballot after ballot. However, many, I think, would say - document the efforts to get candidates and then declare the volunteers (by board action) to be put in the positions by "acclamation." This means without an election. This is something that is going to come up in the new elections law and the question is going to be: "Do we have to send out the double envelope ballot if we only have two willing candidates for two positions." I ask you - is that not a waste of good association money? Do Associations have to send out scads of paper and go to an expense just because bala specific ballot process is dicatated by statute? It's not really an election if directors are declared by acclamation. So the question really is whether the Board has to go through the motions of an election when the candidate pool is no larger than the board vacancy pool. Some associations will send out a ballot with a space for write-in candidates. The cleanup bill to the elections law says Boards may do that. However, if the Board has sent out mail solicitations and has taken other steps to try and find candidates and cannot, seeking write in candidates may not make any sense. Why allow for write in candidates when someone is not willing to come forward and have their name put on the ballot? That allows an owner who might think that their neighbor would be a candidate to write in their name without regard to whether they are even the least bit interested in serving. The result would be that that person could end up on the board, without even knowing he or she was nominated.
What about soliciting more nominations at the annual meeting? I certainly think this is a viable option. However, then a board has to arrange for owners to be able to vote at the meeting which calls for combining the double envelope mail ballot system with proxies and meeting attendance. It can be complicated. If this happens, then the process I think will work best is to make sure to let the owners know they can either mail their ballots in, or bring the whole package to the meeting where nominations will be solicited from the floor, or sign over their package by proxy to someone else to bring to the meeting and vote. The more types ofballots and proxies involved in any election, the more confusing the process for the Inspectors becomes.
Now, what if there are more candidates than positions, but the board cannot, after reasonable efforts, get a quorum? If the documents call for an annual meeting and adjourned meeting, those efforts can be made (and maybe should - although who am I to judge). The new elections law does not require a meeting. So if there is one pass through election and not a quorum, what is a Board to do?
Some experts would say try again, ... and again, ... and again .... .etc. until you get a quorum. I say - consider the expense of sending out ballot package after ballot package? Or the inconvenience of calling meeting after meeting after meeting and weigh your options accordingly.
Why not have the current board - that is normally considered to remain in place until their successors are elected - (ex the ones running for reelection, unless all are up for re-election) seat new board members by appointment - choosing the highest vote getters among those running. I am of that camp. Even if all of the Board members are up for re-election, and there are more candidates, good sense tells me that if the current Board appoints those top vote getters - any challenge to the appointment choices should fail.
Let's be practical. These processes are not invented now to deal with the new elections law; they have been practical solutions advised in the past to combat apathy and allow associations to move forward without exhausting all resources trying to get members to care what happens. The most intriguing new question is whether a ballot package under Civil Code Section 1363.03 must be sent to members when there are fewer candidates than positions open, or just enough to fill them, after a valiant effort to drag owners out to run. I think not, but only time will tell, as we have experience in actions taken and challenges made behind us.
I am comfortable enough with things to say that its a balancing act. If the Board feels it has made reasonable efforts to solicit candidates and sufficient efforts to achieve quorum and cannot get enough interest to do one or the other, then choose the practical solution, and document your efforts. You may have to convince a judge or small claims hearing officer that your efforts were enough. But judges can be reasonable people, ... am I right?
Posted by Beth Grimm at 10:35 PM
June 22, 2006
ASSESSMENT INCREASES - What are the Limits?
People write in all the time and ask what the limits are to assessment increases in HOAs in California. I think the best way to explain it is to include an excerpt from my book entitled: "The Davis Stirling Act in Plain English", in which I recite the law and then explain it. The statute is in regular text (paraphrased to some degree because hardly anyone can actually understand the statutory language), and the commentary is in italics:
1366. LEVY OF ASSESSMENTS; LIMITATIONS ON REGULAR ASSESSMENT INCREASES AND IMPOSITION OF SPECIAL ASSESSMENTS; DELINQUENT ASSESSMENTS; LATE FEES AND INTEREST.
(a) Except as to limits specified in (b), an association shall levy regular and special assessments sufficient to perform its obligations under the governing documents and the DS (Davis Stirling) Act. However, “annual increases in regular assessments for any fiscal year”, as authorized by (b), may not be imposed unless the board has sent out the information required by 1365(a) with for that fiscal year, or has obtained the approval of owners, constituting a quorum, casting a majority of the votes at a meeting or election of the association conducted in accordance with Corporations Code 7510 and 7613. For the purposes of this section, "quorum" means more than 50 percent of the owners of an association.
Comment: If the Board does not comply with 1365(a) in the time required (which requires sending out the budget and reserve information), the Board must seek approval of members for any increase in regular assessments for that year, and needs a majority of a quorum of the owners to approve. For this statutory requirement, that could conceivably be as few as 26% of all of the Owners since a "quorum" is more than 50 percent of the owners. Do not confuse the words “majority of a quorum” which is the approval requirement with “quorum” which is the number of votes that must be cast for the election for votes to be counted.
(b) Notwithstanding more restrictive limitations placed on the board by the governing documents, the board of directors may not impose a regular assessment that is more than 20 percent greater than the regular assessment for the association's preceding fiscal year or impose special assessments which in the aggregate exceed 5 percent of the budgeted gross expenses of the association for that fiscal year, without the approval of owners, constituting a quorum, casting a majority of the votes at a meeting or election (by written mail ballot). For the purposes of this section, quorum means more than 50 percent of the owners of an association. This section does not limit assessment increases necessary for emergency situations. For purposes of this section, an emergency situation is any one of the following:
(1) An extraordinary court-ordered expense;
(2) An extraordinary expense necessary to repair or maintain any part of the CID for which the association is responsible where a threat to personal safety is discovered;
(3) An extraordinary expense necessary to repair or maintain any part of the CID for which the association is responsible which could not have been foreseen by the board in preparing and distributing the pro forma budget under Section 1365 above. Prior to imposition of this emergency assessment, the board must pass a resolution reflecting written findings about the need for the assessment and why the expense could not reasonably be foreseen. The board must distribute the resolution to the owners with the notice of assessment.
(4) An extraordinary expense in making the first payment of the earthquake insurance surcharge pursuant to Section 5003 of the Insurance Code. [This is no longer applicable in practice because the insurance fund was repealed and the surcharge dropped.]
Comment: The intent of these sections of the assessment statutes is to assure that associations have adequate authority to impose assessments "sufficient to perform the obligations" imposed on the association. The rights and limitations to increases and imposition of assessments without a vote of the membership are the legislature's view of what's reasonable, no matter what appears in the governing documents. The statutory provisions control. As for understanding subsection (b), most HOA attorneys interpret this section (in its poorly worded condition) to mean that an association may increase regular assessments up to 20% of the regular assessment for the preceding year without a vote of the membership, even if the governing documents provide stricter limitations. Likewise, the association may impose a special assessment or special assessments that do not exceed 5% (in the aggregate) of the budgeted gross expenses for that fiscal year without a vote of the membership. If the association needs more money to pay expenses, approval of a majority of a quorum of the membership is required (a quorum being more than 50% of the owners) either at a meeting duly called, or a written ballot sent by mail that satisfies the written ballot requirements. “Emergency” needs are an exception, as described.
...
(d) The association shall provide notice by first-class mail to the owners of the separate interests of any increase in the regular or special assessments of the association, not less than 30 nor more than 60 days prior to the increased assessment becoming due.
Comment: Most associations send out notices of assessment increases and special assessments with the pro forma budgets, as the time frames coincide. However, there are times when the increases do not coincide with the fiscal year and the intent is to provide owners with sufficient notice to allow them to prepare for the new assessment amount.
...
1366.1. IMPOSITION OR COLLECTION OF ASSESSMENTS OR FEES; LIMIT ON AMOUNTS.
Associations may not impose or collect an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied.
Comment: This often overlooked but simply stated code section is important in consideration of assessments, fees for use of recreational facilities, document preparation and copying fees, transfer fees (although also covered under Section 1368 below). It furthers the persistent legislative intent to allow associations enough authority to collect monies necessary to adequately administer and manage the CID without providing unfettered authority to turn an association into a profitable venture or misuse an unanticipated overage or windfall. Right or wrong, this is commonly referred to as “zero-based” budgeting.
Posted by Beth Grimm at 11:03 AM
Update on Cleanup Legislation to Elections Reform Law
SB 1560 - This is the proposed cleanup legislation to the new elections reform law for HOAs in California. Finally I can say something nice. The bill has been massaged into something helpful. There are a number of concerns about the new elections law that are addressed in the proposed language changes. There are some that have not yet been addressed. However, I thought it about time to say something positive about the efforts of the legislator and his staff - they have been listening to those interested in improving this law. Kudos. And kudos also to the groups providing input to the legislator. This truly required a group effort because each different faction has its own interest and constituency to satisfy. And this set of laws affects everyone that works in this industry and lives in or owns property in an HOA in Caliornia. That includes millions of people.
Click on http://www.californiacondoguru.com/SB61.html to find the page with all the info. Look for a new link within the next few days containing a summary of the most recent proposed changes in SB 1560. That page will also direct you to other information about the new elections laws.
Posted by Beth Grimm at 10:54 AM
June 18, 2006
Audit or Not? That is the Question
Some HOAs are required to have a "review" done each financial year. Some documents require an audit. This is the legal standard in California:
"(b) A review of the financial statement of the association shall be prepared in accordance with generally accepted accounting principles by a licensee of the California State Board of Accountancy for any fiscal year in which the gross income of the association exceeds $75,000 and the review shall be distributed to the members within 120 days after the close of the fiscal year."
Here are some qiestions commonly asked about audits (a review is a lower standard than an audit):
Question: If I as a Board member or the Board as a whole would like to have an audit done instead of the standard year end financial review, how would we actually go about this?
Answer: The Board is usually authorized to approve having an audit instead of a review. One board member could not make that decision on their own. The decision would be made through a approval of a motion or approval of a resolution. If there was a provision in the governing documents that getting an audit done would require approval of the members, then the Board could not make the decision on its own.
Question: Do we simply ask the Manager to request the CPA to expand the review to an audit?
Answer: A Board could do that by authorizing the manager to authorize the CPA to do the auidit.
Question: Do we ask the CPA ourselves and not go through the Manager?
Answer: A Board could make the arrangements without involving the manager or authorize one Board Member to engage the services.
Question: Do we hire someone outside of the loop?
Answer: The CPA engaged should not have a financial connection to the Board or manager. The CPA ethical codes in California require the CPA that does the review or audit to be independent of the Board and management.
Question: Should I as a signatory Board member simply contact the financial institutions and verify balances myself? (I was an internal auditor prior to retiring and am comfortable with this approach. And still hold an inactive Certified Internal Auditor Certificate.
Answer: The CPA will guide the process and tell you what he or she needs and what items she or she will independently verify.
Posted by Beth Grimm at 9:24 PM
June 17, 2006
Can the President Handpick Committees?
Several visitors of the guru site are frustrated about committee service. The following are combined questions asked by readers: "Can one board member single-handedly pick members to form a commitee?...I finally got the Board to appoint a ________ committee. Then another board member said the president asked her to ask me if I wanted to be on this committee. I agreed but wondered why the secrecy surrounding this-usually the board announces a committee is forming and all interested members may respond. ... I was invited by one board member to serve on one committee and then "uninvited" by another who used the excuse that I am so busy with another committee I am on, that I should stick to that committee. Then the board member picked 2 board members to be on the _______________ committee and 3 other committees as well. Is this legal?? ... Can one member hand pick a committee? ... Can a board member serve as Chair of another committee? ... Can a board member prevent a homeowner from joining a committee?"
Sounds like a lot of baloney and politics goes on to me. A properly seated committee is usually one appointed by the Board. Many Bylaws and California Corporations laws provide that the Board may appoint committees. However, in the real world, associations do all kinds of things (as the questions illustrate) and documents may say other things about how committees are appointed or established. The Board might delegate the power to one board member, or the President might be able to appoint committees, depending on what the documents allow or prohibit. The "right" way to to appoint committees depends on the existence of authority on appointing committees in the governing documents, or any resolutions duly adopted bhy the Board, and and the written provisions say specifically.
In some cases, there are not enough willing volunteers to seat full committees so the Board might serve as the committee or some of the board members might serve. Some associations make sure that each committee has a chaiperson that is a board member. Some HOA boards want completely independent committees and do not allow board members on them. In California, one thing an association has to be aware of is that if a majority of board members is present at a committee meeting and is discussing association business (which is likely), it may run afoul of the open meeting laws which require notice to owners in HOAs of board meetings. Meetings are defined as times when a majority or more of the Board meets to discuss business before the Association (paraphrased). There are exceptions for emergency meetings and executive sessions. The law is found at Civil Code Section 1363.05. And after January 1, 2007, HOA committees that have decision making authority may have to begin keeping minutes as these are one of the items subject to inspection and copying by members, due to AB 1098, a bill relating to records inspection that becomes operative on July 1, 2007.
Posted by Beth Grimm at 10:36 PM
June 10, 2006
STATE OMBUDSMAN OR ENFORCER?
SB 551- Lowenthal - recently amended (see www.ca.sen.gov - put in the bill number and pull up the text) ... Watch it. Read it. Send your opinions on it - here are mine. This bill is going to be heard soon in Assembly Housing Committee. You are welcome to your opinion. The legislators need to hear it.
I am dismayed to see that the proposal for a state oversight agency in this bill is moving from an educational, data collection, and ombudsman program as recommended by the California Law Revision Commission after several hearings on the possibility of an oversight agency, to a bureau, including enforcement, citations and fines, before any viable effort has been made by the State of California to assist volunteer board members by providing educational resources, an internet resource and help line.
Education is the key to success in homeowner associations - whether voluntarily sought or imposed. The concept of enhancing educational opportunities and providing resources, and even initiating an ombudsman program, were and are laudable goals.
Here are some factors that have influenced my decision to write to the legislature opposing this bill, and to encourage others to do the same, much as I would prefer to show support for the educational, data collection, and dispute resolution components:
1. The legislature passed a bill that was signed into law more than 3 years ago that required HOAs to register and pay an annual fee.
“1363.6. ASSISTANCE WITH IDENTIFICATION OF COMMON INTEREST DEVELOPMENTS; SUBMISSION OF INFORMATION BY EACH ASSOCIATION; TIME; NOTICE OF CHANGE OF ADDRESS; PENALTY FOR VIOLATION OF FILING REQUIREMENTS; AVAILABILITY OF INFORMATION.
(a) To assist with the identification of common interest developments, each association, whether incorporated or unincorporated, shall submit to the Secretary of State, on a form and for a fee not to exceed thirty dollars ($30) that the Secretary of State shall prescribe, the following information concerning the association and the development that it manages: ... (e) The Secretary of State shall make the information submitted pursuant to paragraph (4) of subdivision (a) available only for governmental purposes and only to members of the Legislature and the Business, Transportation and Housing Agency, upon written request. All other information submitted pursuant to this section shall be subject to public inspection pursuant to the California Public Records Act, Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code. The information submitted pursuant to this section shall be made available for governmental or public inspection, as the case may be, on or before July 1, 2004, and thereafter.”
The “law” was sold as a process for identifying HOAs in the state so that they could be located ... and so that the state could reach the HOAs and send educational materials. The money was to be used for a database that would be public information. In speaking with persons that sought the database to reach associations and offer valuable services, I learned that the database has not been refined to incorporate the information provided by HOAs. Here is an example of money being collected that is not being used for the purpose intended. I believe this is quite telling about the State’s use of funds collected to assist HOAs.
2. Last year, a law was passed that suggested the State would move toward offering educational materials.
“1363.001. ON-LINE EDUCATION COURSE REGARDING ROLE, DUTIES, LAWS AND RESPONSIBILITIES OF BOARD MEMBERS AND PROSPECTIVE BOARD MEMBERS AND NONJUDICIAL FORECLOSURE PROCESS.
To the extent existing funds are available, the Department of Consumer Affairs and the Department of Real Estate shall develop an on-line education course for the board of directors of an association regarding the role, duties, laws, and responsibilities of board members and prospective board members, and the nonjudicial foreclosure process.”
To date, it appears that nothing has been done to find funds to follow through with this.
3. There is nothing in the proposed statute providing for mandatory educational or training programs or counseling such as are often ordered when a Department of Fair Housing complaint results in a finding of a violation. These training sessions are also often mandated as a part of conciliated agreements. Mandatory education is a better place to start than punishment.
4. The California legislature has passed bills that have been signed into law in the past two years requiring Boards to meet with owners in internal dispute resolution processes and alternative dispute resolution processes, payment plan meetings and duly noticed disciplinary meetings, setting forth detailed schemes for these and in all cases requiring Association participation if an Owner makes the request, and in most cases making the Association pay the costs or part of the costs. But it has not given these programs time to work.
5. The California legislature has passed bills that allow small claims court judges and referees to fine associations and board members for failure to satisfy complicated procedures relating to records inspection requests and elections processes, but has not given these statutes time to work.
6. The bill proposes collection of a fee that is and cannot be fully protected from usurpation of the legislative budget process - and that could at any time reach the level of $20 per household collected biennially.
Please be aware that there is a parallel bill - AB 770 - that still reflects an ombudsman program emphasizing the educational processes and the ombudsman program. However, there is ongoing pressure in Sacramento to satisfy influential groups that are demanding an enforcement arm and it is my belief that the provisions of AB 770 could be amended at any time to include enforcement aspects. Changes happen in committee meetings all the time. The truth is that at any time we could be focusing on one of these bills while the other slips through absorbing the provisions opposed in the other bill, or the less inocuous bill could be dropped.
We have seen a similar occurrence with Elections Reform. And it is important to understand that bills like that one and this one relating to oversight, while touted as a consumer protection bills, can in fact end up costing the consumer a lot of money in compliance costs.
I have HOA and homeowner clients and I see the injustices flowing from each side of the table. I also see the daily struggles of HOA board members trying to absorb the complicated technical requirements for the various legally required processes. I am a trained mediator and mediate many disputes. I have a website that offers an abundance of free information geared to help board members, homeowners, realtors, managers and potential buyers in HOAs. I have written two books and provide a subscription newsletter on a bimonthly basis which serves as a Plain English explanation of the laws and practical problems (and solutions) for common HOA problems. I run a blog answering questions submitted through the website in an attempt to educate. In short, I do something the State should be doing to assist HOA Boards and Owners with their legal rights and requirements. I see the State’s failure to focus on education before enacting laws meting out punishment of board members as a disturbing threat to the HOA model which requires volunteer service.
Why? Soliciting candidates for Director positions in HOAs is a serious, growing problem. Given studies done by industry-involved information gatherers, and my own personal experience with hundreds of clients, I think it fair to opine that the vast majority of Associations in the state struggle to find willing volunteers to serve as things are now. The shift of focus from an “ombudsman program” to an enforcement bureau is disturbing, at best.
I have witnessed what I consider to be “rabid” dislike by some legislators for HOAs and feel that many harbor grudges for HOAs basing their concern on what have been presented to them as the worst examples if homeowner association leadership, without regard to the realities and the bigger picture, and without regard to the difficulties Boards face in trying to do a very difficult, technically legally complicated and thankless job.
And as happens, I sometimes end up eating my words - in more ways than one. For years, I opined that if there was a state agency to handle and investigate CID complaints, then maybe there would not be so much knee jerk legislation coming down. Legislators would have somewhere to send complainers and at least there would be a look at both sides of the issues complained of (or so I assumed), rather than the one-sided view given a legislator by a caller. I supported Attorney Jim LIngl's draft of a CID oversight bill (AB1250 I think, proposed some 10 or so years ago). In that day, though, I had more hope of a balanced agency and some state assistance, rather than envisioning Associations paying for their own demise.
I am all grown up now, having years and years of HOA and HO representation and assistance, hundreds of articles written and courses taught and learned, and work on probably 50-75 HOA bills under my belt. And the picture is changing. HOAs are blasted in the news. Board members are condemned in print and even sometimes in legislative history, and one time Associations even got dissed in a bill preamble. It seems like every coworker, sibling, friend or friend-of-a-friend has a complaint about their homeowners association. There are organized groups that condemn organized groups. There are groups that single out individuals solely based on their membership in industry groups. Negativity seems to be closing in on the model from the public's perspective.
The idea of oversight is a popular one, coming from the owner community, until they decide they might want to get involved in leadership in their association. If the job of board members gets any harder, which is certain to occur with each new piece of detailed, complicated legislation, the day will come when the norm is to ask the question: "Why the heck would anyone want to serve?"
Am I saying board members who do not follow the law do not need to be punished? No. What I am saying is that education needs to come first. Institution of processes such as dispute resolution and small claims remedies written into the law in recent years need to be given a chance to work. As homeowners and Board members learn of these (of course, through limited educational opportunities available at the time), that will provide "incentive" to learn more, to do the right thing instead of the wrong thing. Boards all over the state are inheriting problems that began to fester years prior, and having to deal with angry and frustrated homeowners who did not understand what they were buying into in a "CID".
The biggest problems in this state for HOAs are a lack of guidance for the volunteers who are willing to step up and serve and a shortage of willing volunteers. So I am concerned about the trends toward punishment of innocent volunteers who have been willing to step up to the plate. They could practice "preventive" law if there was somewhere to go - a hotline perhaps - to get answers to questions about how to do something. Should they be expected to read the Davis Stirling Act and understand it? I challenge anyone to try it. Should they be required to read 20 year old documents and rely on them in today's world? Again, I challenge anyone to read and interpret the documents with the law. It is clearly impossible for the average person to read association governing documents, and the law, and decide which controls in any given situation! Even the documents written in the past year or two cannot keep up with the changes in the law, and besides that, new laws on elections make it harder than ever to conduct a voting campaign to update governing documents to reflect new laws.
It is not even easy for knowledgeable HOA attorneys to read governing documents and come up with black and white standards of duty and responsibility in all aspects. The latest elections laws are again a perfect example illustrating the difficulty of deciding how to resolve conflicts. And an example of a law needing cleanup to make sense, and an example of how hard it is to update documents when the law is in a state of flux. Take a look at the issues surrounding the new elections laws on my website http://www.californiacondoguru.com (click on the link to SB 61 -Election materials and you can see for yourself).
State legislators hear only from owners who have a complaint with their board. Many of those calls likely reflect a lack of understanding of the limitations the extra layer of "rules and regulations" carried in HOAs, to protect property values and provide safeguards against unreasonable behaviors in close, densely populated housing developments. I believe the legislators and aides tend to by sympathetic, either because of a lack of understanding of the importance of protecting the integrity of the CC&Rs and rules, or else just because they are hearing from constituent.
The legislators need to hear from Board members that are frustrated about their roles and want meaningful guidance. They need to hear about how hard it is to be a board member (who wants to understand their legal obligations) and how hard it is to recruit board members. It's up to you to save yourselves, and this bill - SB 551 - is the place to start. Express your opposition. I can lead you to the well, but .......
And homeowners - be careful what you wish for. You will be the ones "taxed" to pay the costs for this new agency (or bureaucracy) if it comes to fruition. Don't be mislead when you see that a fee is to be paid by a homeowners' association; you are the association. By now, if your association is moving into the times and keeping up with the new laws, you are probably feeling the crunch of added compliance costs. If not yet, wait until you have a year of the new elections law under your belt.
The pendulum needs a push in the direction away from being forced to "walk the plank" without first offering a lifevest. And the benefits and drawbacks of a costly State oversight agency have to be examined very carefully.
Posted by Beth Grimm at 10:53 PM
June 7, 2006
Dogs - Big and Little - Leash Laws Rule!
I did not know whether to put this blog under Owner frustration or Board member frustration. In any event, living in a close, densely populated development with pets is not easy - especially for your neighbors.
For the dog owner, what are they to do? They live in an area where there is nowhere to take the dog to run or poop in the morning ... no way to get in and out quickly. With big dogs, this is especially frustrating. The pet needs to get exercise and to do that they need to stretch their legs. I am a dog lover. I understand.
However, ... what about the neighbors? The issue is particularly close to home right now as my daughter and her husband live in a very densely populated region, in a townhouse where there is no common area other than the pool and clubhouse, a bit of green in the sidewalks leading to the doors where the only way to go is up once you are inside, and runways between the garages barely wide enough to make the turn to get into the tandem garages. This young couple has a two year old and a baby and my daughter takes them out every day for a walk. On a regular basis they are accosted by a big dog running loose. The dog owner is present, but not kind enough to keep the dog on a leash (even though the CC&Rs and the local animal ordinances, and state law, require it!). "He's friendly" the owner always shouts as the dog runs up to greet the children and dances around them. So what!! The problem is that the two year old is smaller than the dog and has been traumatized by its conduct. Viewing things from the eyes of a two year old full of wonder but not free of all fears, this is a serious affront - one that can be easily avoided. My daughter has talked to the owner of the dog several times, explained the child's fears and politely asked the owner to keep the dog on the leash when in the complex. The owner's response: politely listen ... and ignore.
Get it people! The dog is not the problem. The owner is the problem, and unfortunately, is among many who do not have a courteous nature and good manners, and should not be living in a close, densely populated townhouse with a big dog.
Leash laws are passed for a reason. I go through this discussion with every board that is in the process of dealing with dog issues or amending governing documents. In many cases, the directors are either trying to be overly friendly, neighborly, or self-indulgent because they have their own "baby" who would never cause anyone any trouble off leash. Dogs need to be on a leash and under control of the person walking them when in the common areas. Big fines for failure to follow the rules are justified.
What can happen if people do not comply?
--Children, elderly people and people with animal fears can be traumatized, even by the friendliest dogs.
--Other dogs can yank their owners off their feet if they are on leashes and go after the dog running free (this has actually happened and resulted in a lawsuit by injured owner following the rules).
--Dogs can accidentally (or on purpose) bite children who are holding food or toys and try to protect them when the big dog wants to play, or who reach for the dog toy being carried around by the dog (yes, this has happened too and resulted in a lawsuit).
--Dogs can get into bushes and do business in places where it is not convenient to clean up, but is a mess for the gardners.
--Dogs can unexpectedly attack other dogs, chase (and traumatize) resident squirrels and birds even when friendly to people.
--Dogs can run up to people dressed for work and slobber on their clothes (yes, this has happened also).
Other problems with dogs in close places:
--Barking and yapping is cruel and unusual punishment for neighbors who like to enjoy a quiet environment in their homes.
--Dogs that are found uninsurable by some insurance companies can be very unpredictable and turn on humans without warning.
--Associations are a target for legal claims, a deep pocket easily tapped when a dog causes harm or damage to residents, and owners, including the dog owners, suffer when the Association is sued.
-Big dogs make big piles, little dogs can get ornry and yap, and lonely dogs tend to whine all day.
Think about it. Find a home for the dog that needs to room to roam.
Posted by Beth Grimm at 9:26 AM
June 6, 2006
THE NEW ELECTIONS LAW
SB 61 takes effect July 1, 2006. A surprising number of persons have remarked that luckily their annual meeting is in June and so they can wait a year to adopt election rules under the new law. It seems many think the new law relates only to Board elections. Not so. It also regulates elections on assessments, amendments to the governing documents, and transfer of common area for exclusive use to members. Of course, if there are no plans for any of these actions, an association can wait, but don't wait too long. And there is one more thing - SB 1560 as currently written extends the new election rules to all elections. It may or may not be signed into law, the point being, waiting is not a problem, unless it becomes a problem..
Posted by Beth Grimm at 11:16 PM
CONDO CONVERSIONS - $$$$ DRIVES !@#$%&!@#
I receive questions, complaints and requests for assisting with condo conversions issues every other day. Its the rage - convert apartments or houses to condos. Make a bunch of money. Flip properties. But guess what? Conversions seem to breed problems.
Today the message was from siblings who bought condos converted from apartments and had just learned that the pipes in all the units were shot. The solution - complete repiping of a 30 year old building. The cost - sky high! They were facing a huge mess and wanted to know their rights to sue the developer. - Heading for a nightmare.
Two days ago it was from an owner who converted his house to three condos, and sold two units to a person who bought one to live in and one as an investment - to rent out. The original owner no doubt enjoyed the windfall gained from the sales, but was wondering what happens when there are two owners who cannot agree on anything. He was upset at having no control over choosing a renter, and also had no comprehension of the CC&Rs he had paid to have drafted that gave one vote to each unit, meaning the person who bought the two units would always hold the majority in all voting matters. (And some people wonder why I collect the fee up front!)
Last week it was an owner who wanted to convert a 4 unit building, and asked me to draft CC&Rs. When I sent a questionnaire asking many questions about what the owner wanted, on all aspects from the financials, the maintenance and use provisions, signs, pets, parking places, modifications etc., the feedback I received was that he had not thought about any of thoses things. He needed more time to ponder.
And on a regular basis - I am asked to step in and help resolve noise issues stemming from a too-close-living environment ... often involving converted apartments. The walls, floors and ceilings always fall short of sound-proofing expectations.This would be noise related to hard surface and laminate floors, doors slamming, cupboards opening and closing, washers and dryers vibrating the floors, music speakers booming, loud nightime intimacy, clickety clacking shoes, barking dogs, and children involved in running, dancing, singing and shouting.
Therein lies the problem. A too-closwe-living environment. Shortness of forethought. Lack of understanding of recorded land use restrictions. Love of $$$. Unwillingness to share. Unwillingness to seriously compromise. Struggles over power and control. Buildings that are built as apartments and residences with little regard to separation of facilities allowing for individualized maintenance. Failure of building condition and much needed upgrades leading to surprise assessments.
What is the solution? Inspections. Paying attention. Reasonable compromises. Thinking things through. Imagining best and worst case scenarios. Meaningful financial planning for shared expenses. Respecting other party's interests, comfort and privacy. And most of all: willingness to negotiate, conciliate, mediate and meditate ... yes - I said meditate.
Posted by Beth Grimm at 10:34 PM