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July 28, 2006
FEES FOR KEYS
I often get questions about the reasonableness of fees charged by associations. This is a recent inquiry: " The management company has a policy to charge $75 for a copy of the hoa common area keys. Is this legal?"
Usually costs for items provided by the Association are tied to actual costs to reproduce but in the case of keys, there is some recordkeeping when keys are lost, so one can generally expect a fee that is more than just the cost of the keys. I do not know what it costs the Assn to replace keys and change the records - it would vary depending on whether real keys or key cards are used. Possibly, there are records involving an owner and a tenant involved. A $75 charge for key replacement indicates to me a possibility that the association set the price high because of a history of too many people losing keys, or too many past residents using the keys to use the facilities. Sometimes the locks have to be replaced and everyone has to have a new key - and that can get expensive. A $75 cost to replace keys discourages losing them.
Posted by Beth Grimm at 11:26 PM
Do Owners Have Unfettered Rights to Fly the American Flag?
At the National level, the bill HR 42 has been signed into law. This bill has already been characterized by the press as banning homeowner associations from prohibiting displays by owners of the American flag.
The legislation prohibits an association from adopting or enforcing a policy or agreement that “would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use”. This means the owner can fly the flag on his or her Lot in a planned development in California, or on their balcony or patio area in a condo association, but it seems the Board can set some reasonable restrictions. The bill also provides the following limitations:
1. Flags must be displayed consistent with the provisions of the Federal Flag Code, or any rule or custom pertaining to the proper display or use of the American flag; and
2. Community associations may place reasonable restrictions pertaining to the time, place, or manner of displaying the American flag necessary to “protect a substantial interest” of the community association.
This bill is not entirely inconsistent with California law on flag flying. That law defines displays that are not allowed and you can find information on the California law on my website at http://www.californiacondoguru.com. You will see that from my point of view, associations are encouraged to supply owners with reasonable opportunities to fly flags. I am in favor of allowing patriotism to flow freely. In fact, I was visiting some family back in the midwest over the 4th and one of the greatest displays I have ever seen was around the oldest cemetery in Iowa City - more than 3000 small flags on wooden spikes lined the boundaries of the cemetery. The heartfelt story was that a local school teacher and his children got up early every 4th and set this up, leaving the display up for the week. This man was following the tradition established by his father. It was touching.
On the other hand, clanking chains, display of deteriorated flags, bright colored lights, large flags flapping loudly in high wind, and "talking" flags can offend your neighbors. Drilling holes in the buildings without regard to water intrusion issues or mounting brackets or displays on common roofs under warranty (until breached) should not be allowed.
As in every facet of community association life, there has to be some thoughtful balance.
Posted by Beth Grimm at 11:02 PM
July 14, 2006
My Board is Unresponsive - What Do I Do?
This is a followup to an earlier blog that pointed out a number of resources that are available for owners or board members that want to be educated in California homeowner association legal requirements. I am beginning a series on how to deal with difficult Boards (to help owners) and how to deal with difficult owners (to help Boards). This needs to be a continuing saga because there is no shortage of either in California (or across the nation for that matter). Although I am an attorney practicing only in California, much of what I lay out here is pertinent to any situation where a Board or owner is unresponsive or unwilling to follow the law or requirements set forth in the governing documents of a homeowners association.
For resources in addition to those set forth in the earlier blog, check out the resource page at the Guru website (http://www.californiacondoguru.com).
For guidance on actions, stay tuned and follow the blogs, starting here.
Here goes as to strategy- remember this reader question?
"I am a homeowner in a __ unit association. Our board is unresponsive to questions, requests, etc. I feel helpless in my own home. What recourse do I have or what escalation point is there for me. "
There are many reasons a board could be seen as unresponsive. Let's take the most obvious one first. The Board is simply ignorant of the answers. Silence is less risky than looking ignorant or saying something that is incorrect. Maybe the Board has not developed any skills or means of communicating with owners. Especially in a self-managed association, there may be a tendency for boards to "shut down" if all the directors are hearing from the ranks are complaints or questions they do not know how to answer.
There is the possibility that the demands that are being made are unreasonable or offensive, or continuing, or that they have been put on a the agenda for the next meeting and no one wants to address them until then. Perhaps the Board is waiting for an upcoming meeting and it only seems like the board members are unresponsive. Believe it or not, there are cases where owners are demanding and want answers right away, and directors feel there is safety in numbers, and it makes more sense to have the questions addressed by the entire board. Of course, there are boards that put off owner complaints and demands for months on end just because they don't want to deal with them. However, in my experience, the demands do not go away - they tend to "escalate" and how they escalate depends on how the owners tend to approach things.
Owners, there is a pragmatic approach that does not involve shouting, meeting disruptions, threats, or retaliation. The place to start is organization of thoughts, and preparing a reasonable presentation. It may be face-to-face - it may be pen and paper (or in these days, "word" and email or fax). No one waits for a letter anymore. And this is where you come in, armed with the education you received from doing your homework. You may even have recitations of law or passages or articles from the research you did to offer the Board - so you can "help them help you."
The best way to approach the Board with demands is either to attend the meetings, listen and learn and show interest, and speak directly to the Board at the legally required opportunity (in California) which most informed boards call the "homeowner forum time" California law requires boards to allow owners to address the board at meetings; however, the Board can set reasonable limitations on time, which can mean a specific time period before, during or after the meeting or the actual time allowed to speak. If you are overbearing, demanding or pushy in your approach, you may trigger the natural human response which is to withdraw, and that will diminish your message considerably, so avoid it.
Owners may also provide their questions, concerns or demands in writing, which I believe to be the method most likely to engender a response and deserved accountability, especially with a Board that does not appear to be responsive. A writing serves several valuable purposes:
(1) Provides More Thoughtful Approach. A writing tends to force a a person to think things through in terms of organization, structure and message, which often presents a more cohesive and understandable demand, question or concern.
(2) Assures Delivery of Correct Message. A writing gives the recipient of the messsage the opportunity to deliver it as stated by the writer to all parties that need to see it, which is much more likely to be accurate than the "telephone game" which leads to paraphrasing and reparaphrasing which often leads to an incorrect message, and which also often gets sprinkled with personal "flavor" as it is passed along.
(3 Avoids Idiocy in Delivery. A writing tends to (although not always the case) be presented in a less offensive manner than a personal affront or confrontation involving "demands", because it tends to temper the emotion somewhat. When you are trying to make a point, you need a process that will allow you to think clearly. Often when people start speaking from a level of frustration, they feed off of it and the message gets skewed. Who wants to look bad on paper? Spouting epithets or threats on paper or otherwise is not advisable under any circumstances, but on paper, they cannot be retracted. You can count that as a strike against yourself if your demands erupt into uncohesive rants or something more. The Board will give the message less credibility - the directors may not even finish reading it. And if the matter escalates to where someone else will become involved in judging who is the more reasonable party and what is the more reasonable position, you are sunk.
(4) Creation of a Paper Trail. A writing creates a "record" that is hard to ignore and that tends to invite a response, even if just to avoid appearing unresponsive.
(5) Credibility. If it comes down to needing credible evidence either to share with other owners whom you might want to enlist, an attorney with whom you might want to consult, or seeking objective review of a demand, a writing creates a "record" that speaks louder than "he said, she said" types of testimony.
Hearing officers even in small claims court, should matters "escalate" to this step, will often ask the party with the demands if they have been presented to the other side - in writing, - before coming to court. Some small claims judges will not hear a matter if that approach was not taken before filing. A party can say "I called them 10 times and demanded that ...." - which is less compelling (since there is no record of what was said other than testimony) than a well constructed written "demand" providing clearly what it is you want, what the authority is that entitles you to it, and how urgent it is that you have it including what losses you have incurred because you did not get it.
Then, If the Board is truly avoiding responding or ignoring the request, it may be time to take action. Look for suggestions in an upcoming blog.
Posted by Beth Grimm at 10:05 PM
July 12, 2006
My Association is Out of Control ... What do I do?
I receive a number of calls each week asking this question, in some form or another: "My Association Board is breaking the law, what can I do?" Sometimes the call is legit. Sometimes it's not.
When it "is" is when the Board is not following the Davis Stirling Act or the Association governing documents. When it "is not" is when the caller thinks the Board is "discriminating" against him or her or "harrassing" him or her and in fact the Board is attempting to follow the Davis Stirling Act or the Association governing documents by enforcing rules and regulations relating to parking, pets and the pool (3 infamous "p"s in the realm of enforcement questions) or collecting assessments.
Usually, one side or the other is somewhat to very familiar with the Davis Stirling Act and the other is completely ignorant of it (or "unenlightened" as I like to say).
When it is the owner, tenant, family member of one of those, or a sibling lawyer to one of those who is "unenlightened" sometimes the problem can be resolved by pointing to specific provisions in the Davis Stirling Act or the governing documents and warning them that failure to understand the regulations or Board's authority can end up in a costly battle.
When it is the Board that is "unenlightened" it can be more difficult. Board members are volunteers and not always motivated to add to their burdens the necessity of seeking a legal education. It is quite difficult to find answers and get smart about the Davis Stirling Act. It takes time, energy and a willingness to work at it. And even then, the answers do not come easy. And Board members often are also under the gun about finances, and hesitant to pay an attorney to get involved or help.
So what is a person who cares to do?
Whether you are looking at this from the Board's perspective or the Owner/Tenant etc, perspective, the first thing to do is seek out helpful information on the subject(s) that is "in your face". Here are some suggestions on that:
1. Go to www.ca.gov and navigate the state's website to get to government, and California Codes. The Davis Stirling Act is found at Civil Code Sections 1350-1378. Copy the code sections into a file, and then use the "find " function in the word program you have to seek out specifics on certain subjects like "flags", "pets", "signs", "collections" or "assessments" or the like.
I could say read all the statutes in the Davis Stirling Act but even if the average person can read the language of the statutes, they cannot understand them. Sometimes its easier to focus on what you need, for starters.
2. Pull out the governing documents and look to the Bylaws for provisions relating to elections, and the organizational structure of the Association, Board duties and responsibilities, etc. Look to the CC&Rs (also known as the Declaration) for the property rights and obligations, and the owners' rights and obligations. This is just the way it should be, not a promise that the documents will be structured as they should.
3. Go to the local law library (County law libraries let anyone in, law school libraries are more selective). Check out the CID (common interest development) texts by CEB (California Continuing Education of the Bar), by authors including Katherine Rosenberry and Curtis Sproul, Jeffrey Wagner, and John Hanna. There are various books by these authors advising HOAs, providing forms, etc.
4. Go to Amazon.com and plug in condos, homeowner associations, etc., and you will find interesting texts - I can recommend - "Questions and Answers" by Jan Hickenbottom.
5. Review my website at http://www.californiacondoguru.com and purchase books like "Finding the Key to Your Castle" and "The Davis Stirling Act in Plain English." Sign up for the Legal Digest, and read all of the free articles, FYIs, FAQs, and blurbs on various subjects.
6. Surf the web and find other sites - just be careful that the sites are related to California law or if they are not, understand that California legal requirements are different from other states. I highly recommend spending some time at www.communityassociations.net. It is an interesting site full of news from all states including specific links to California sites. In addition, the CAI website (http://www.cai-online.org) can be a good resource and the list of publications for different states is quite comprehensive.
Once you are armed with information, look for the next blog that will offer specific suggestions as to how to approach and "educate" others in a way that will provide them with "incentive" to listen. I will provide some guidance on what I often refer to as figuring out how to "push the right buttons", whether you need the attention of an owner who is out of control or resists following the law or regulations in the documents, or a board that refuses to follow the law or prefers burying its head in the sand.
Posted by Beth Grimm at 10:10 PM