California Condo & HOA Law

August 20, 2010

City Smoking Ordinances - Do They Apply to HOAs?

Smoking ordinances are in the news a lot as more and more cities in California are passing strict smoking ordinances. More and more associations are asking about passing rules and looking at CC&R amendments to limit or prohibit smoking in the common area, and some are even placing reasonable restrictions on smoking in condo units.

Here is a question from a reader:

"I am wondering if you could point me to information on your site, or another site, about local smoking ordinances. My question is this: if my city passes a smoking ordianance that covers multi-housing units does this also apply to my co-housing community. One of our board members says no it does not because we are goverened by our CCRs."

My answer: The city ordinance probably does apply, but one would have to read it to see if there are any exclusions and how it applies. HOAs are not immune from city ordinances. The HOA rules or CC&Rs can be more restrictive than city ordinances, but the ordinances would still usually apply as a minimum standard if there are not more restrictive conditions in the governing documents.

Where some confusion reigns is when the ordinance enforcement contingent of some cities will decline to enforce the ordinances within the HOAs or Condo associations using the excuse that the developments are private and there is a board to enforce restrictions. It is not really fair since everyone pays the costs of local government - even Condo and HOA owners pay city and county taxes just like everyone else, but sometimes the associations get the short shrift on municipal services.

But Associations do have more options than other non-HOA residents. The Boards have rule making authority and through the board powers as defined in the governing documents can usually align rules with or even adopt the city ordinances as part of the association rules (after going through proper procedures). In fact, having the objective standard of comparable local ordinances is helpful - but then the question arises as to whether the city is justified in refusing enforcement because the board can enforce the same rules.

It can get confusing or convoluted but most ordinances written for multihousing would apply not only to apartments but also condos and townhouses whether a corresponding rule was adopted or not.

If you want to see some more thoughts and machinations on smoking rights, see my concurrent blog at the Condolawguru blogsite with a question from a reader who believes trying to limit smoking in units is unfair.

Posted by Beth Grimm at 9:26 PM

July 27, 2010

What Can You Do When the HOA Board Does Not Enforce the Rules?

This is a hot topic. The question sent to me is:

""What can I do about a board that does not enforce the rules? They won’t do anything about people disobeying the rules because they are afraid of retaliation. As a 20 year homeowner, what can I do and where do I start?"

There are many ways to attack this problem. But first, understand that board members are volunteers, they have their hands full these days just trying to keep their HOA or Condo Association "afloat", and they can use help.

So, first, get educated about rules. There are 5 "Enforcement" Primers available on my website for $25 each that will tell you everything you ever wanted to know about rules and enforcing them. And forms to boot! These Primers are intended to assist boards in setting rules and policies that are reasonable, and they being able to enforce them!

Second, run for the board! If you want to help, get your hands in the pot. If you want to know what the board responsibilities are there are two Primers on the website relating to Board Basics (responsibilities) - I (basic) and II (intermediate). There is also an Operations Primer and an Ops forms Primer to assist with operations.

Chronic complainers (about rules enforcement) can become part of the problem. Become part of the solution! Get involved in the leadership in your association. If you are not willing to do that, then at least keep your corner "clean".

Posted by Beth Grimm at 11:42 AM

June 22, 2010

Screaming Babies - Can You Sue Them For Nuisance?

The following is a very difficult set of facts. Some situations are just not conducive to litigation or punishment until it can be established that the parties are not making any compromises or working to find a mutual solution.

Kid noise is the source of many disputes in condominiums and townhomes. It can be a problem in apartments too, but it is easier for a party that is a renter to leave an apartment and find another place to live. And keep in mind that "it takes two to tango" as they say.

Here are the facts as presented to me:

"We are renting a condominium from a friend and have a 1 1/2 year old toddler. On occasion, he has a tendency to scream quite loud, whether it is because he is upset or just wanting to let out steam. To our knowledge, his screaming has never occurred before 9 am. Our neighbors have complained to us about the "noise" coming from our unit since the day we moved in and have now taken the issue up with the HOA.

We got a visit from one of the HOA members yesterday who wants to find a solution before involving the landlord and deciding disciplinary action against them.

We do not understand our rights as renters and what we are supposed to do in this situation. We do not encourage our son to scream, but at his age we do not know what recourse we have. We are doing our best to re-direct his energy into different activities, but we also believe it is a normal phase toddlers go through at his age. We have been in our unit for less than 5 months and have been bothered with this issue on three different occasions.

Do you have any advice? And does the HOA have any legal recourse against us?"

First of all, let me say "kudos" to the board member for seeking some kind of resolution before meting out punishment on the landlord or anyone else.

Let's say that you are the decision maker in this situation having to mete out the punishment, if there is to be any. Who do you think should "win" if a legal battle ensues? Do you think anyone should be punished in this situation?

If you have kids or grandkids that are hyperactive, easily excitable, colicky or just plain heavy footed or noisy, you will sympathize with the tenants who have the child screamer.

If you are single or a couple without children or with perfect children, work at home, work nights and sleep days, are a senior citizen who has "paid his or her dues" and are looking for a peaceful place to live, or are disturbed by loud and unpleasant noises, you will most certainly side with the complaining neighbor.

If you are an HOA lawyer without compassion you might say that any loud noises of this magnitude are a disturbance and should be punishable by the full extent of the authority of the governing documents. Or you might be inclined just the opposite to say this is not the board's problem, that it is a neighbor to neighbor dispute and the board should not get involved.

As for legal rights, the board could impose discipline on the owner of the property including fines, suspension of some of the rights of owners (and tenants by delegation) and the like, according to what the governing documents allow, for each incident. And the board could likewise probably opt out of the dispute and refer the parties to a local mediation service. If taking action against the owner for the screaming baby noise, the board would want to be careful to avoid any action that could be perceived as discriminatory, meaning a violation of the constitutional protections for families with children.

So who is right? Everyone? ... No One? Here are some things I would recommend that the parties consider:

The Renters With the Screaming Child

Move: If you can move to a new place with better insulation or a home without party walls, life will be simpler. Of course, this may not be possible for financial or other reasons.

Check with a medical doctor, psychologist or behaviorist that works with toddlers to see if there is anything that can be done to help the child cope or help you (the parents) deal with the screaming in a manner that minimizes it.Perhaps there is some solution involving a distraction, supplement, food, medication, or something else that can be used to assist in the situation. It would make sense to keep a log of incidents, times, and circumstances surrounding the screaming incidents both for your own use, for informational purposes for any provider, and/or for a documented record in case there are allegations made of noise when it is not your child.

If You Are The Complainer

Remember, every time the child is screaming the parents have a front row seat and so it is at least as disturbing to the parent, and actually doubly so since they have to endure the baby noise, and the neighbors' wrath. Be glad you are not the parent having to cope with complaints about a condition that seems unresolvable related to children noise.

Get some noise cancelling headphones and be glad that the noise is not caused by a stereo with extra high def base on and surround sound speakers placed on a hardwood, laminate or tile floor.

Get surround sound and when the screaming starts turn on a movie about a car race, something like Thunder Road or a musical, or turn on the stereo and listen to some lively music (not so loud it disturbs the neighbors).

Indicate to the neighbor a willingness to talk about the situation and see if there is something you can do to work things out.

And for 3 times in 5 months, have a heart.

Posted by Beth Grimm at 9:46 PM

May 27, 2010

What Can A Small Claims Court Judge Do?

A common question is how much teeth does the law have? In otherwords, what can an owner do if he or she thinks that a board is not following the law? Here's the specific question for today that was sent by a reader:

"I discovered some of your excellent Internet material today and have a question about cases in
Small Claims Court involving damages for violations of law by homeowner associations when
the statutes do not seem to specify any damages. For example, if an association deliberately
violates a board member's right to be present at a board meeting, would the judge conclude
that that is very interesting, but no financial damages will be ordered by the court (I realize
that there may be some non-financial consequences such as a decision that the board
meeting may be void)."

A small claims court judge or referree would likely ask the owner why they are in court, and what they want. There are no monetary loss type of damages specified as a consequence of violating the requirement of allowing owners to attend open meetings or address the board at such a meeting. For this particular question though there are potential consequences in the form of a $500 fine that the judge may impose for any violation of the Open Meetings Act at Civil Code Section 1363.05. The remedies for violation of the Article that encompasses this statute are in Civil Code Section 1363.09. They may not seem clearly stated to a layperson but a judge should understand them.

There is of course, the story of the "other side" to consider and the Judge will want to hear it. Maybe there is a good reason for ousting an owner from meetings.

It is not as easy to find a remedy for something like a board's avoidance of the law requiring it to send out an IDR-ADR or insurance summary or being rude to owners at meetings as one cannot generally show any monetary loss for that.

The small claims judges were given additional authority though, last year by some new law that justifies "injunction" relief if the underlying law that is violated allows for it. It is a somewhat complicated get around but if a person (or board) is trying to enforce a CC&R restriction and takes it to small claims court looking for the judge to order someone to do or stop doing something, and the judge reviews the CC&Rs and sees that owners or the board can get "equitable relief" for the violation (which is an order to do or not do something), a judge or referee might take it upon themselves to make this connection and render an order.

Are you confused yet?

I have done earlier blogs on small claims court remedies, and am considering doing an E-Newsletter in the coming months on the topic. So sign up for the free E-News at the condoguru site if you want to stay on top of things.

As for a simple answer to the general subject of small claims, there are a number of monetary remedies now in the Davis Stirling Act embedded in some of the laws, which were put there by legislators to promote consequences. One has to look for them, and getting good legal advice (I emphasize good - never hurts).

Posted by Beth Grimm at 11:18 AM

May 4, 2010

Public Flogging - What is the Worst That Can Happen?

I receive a lot of emails from all over the country about goings on. I know that people get seriously angry when things happen that they think are unfair. Many come to lawyers wanting to sue. Some, when they find out the cost of a lawsuit (which seems to be a mentality that is hard to shake), turn to things they CAN DO cheaply. But choosing the easier path doesn't always turn out to be the cheapest form of blowing off steam.

Here is one story that you won't want to ignore, which is taken from a Press Release issued by the owner of the property.

"PRESS RELEASE - FOR IMMEDIATE RELEASE

Gatlinburg, Tennessee Home Owners Association Files $1 Million Lawsuit
Against Blog Author and Property Owner

A Tennessee Home Owners Association has filed a $1 million lawsuit against one of its property owners for defamation, libel, slander, and false light invasion of privacy. The property owner, Robert Goodman, has operated a blog that has heavily criticized the actions of the HOA’s general manager and board of directors for alleged violations of both its own HOA controlling documents and Tennessee state law. The HOA board has filed the lawsuit in an attempt to force virtually all content to be removed from the blog and prevent any new entries."

The blog is at www.DeerRidgeOwners.com. I provide this information and not because I have any specific information take on which side is right or wrong, but merely as straight up information of a possible "worst case scenario" to consider illustrating what can happen when an owner speaks out in a derogatory way publicly about his or her association or board, especially in a way that can reach millions of people. Use of the internet communication systems as a mean of lambasting any party can escalate any differences and damages in any lawsuit that might occur.

I have not visited the blog, but it seems it might serve as a model of what-not-to-do if you don't want to get sued. This type of situation could happen in the reverse as well if a board defames an owner (the only defense to defamation is the truth but as you can imagine, there are other potential issues like violating rights of privacy, etc, when negative information about a party is sent distributed publicly). And, even when there is a viable defense, litigation is painful and costly in many ways.

In California there are many ways for an unhappy owner to approach your board or for the board to approach owners about association issues short of public flogging (by either side).

Posted by Beth Grimm at 10:38 AM

May 3, 2010

Must a Board Give An Owner A Chance to "Cure" Before Fining?

In a recent email message a reader writes:

"Beth, is it required for the HOA to send a Notice and give the condo owner a chance to remedy the issue before a fine is issued ?"

The answer in California law is that it is necessary to give a hearing notice before fining, but the law does not require that the board give an owner a chance to cure. Whether it is fair or not really it depends on the circumstances. For example, If someone has done something or failed to do something that can be reversed or fixed by the owner, I believe the board should give the owner the opportunity to fix the problem before a fine will be considered. But if the problem cannot be fixed, or the owner has been warned on prior occasions, or the situation if left unattended might invite others to do the same thing, the board might be justified in fixing it right away without further warning.

Posted by Beth Grimm at 9:19 PM

February 5, 2010

There's No Such Thing As A "Slam Dunk"! A True Story

This is a lesson for both HOAs and Owners who want to consider litigation. It is an experience I had when doing litigation years ago.

The Association contacted me for assistance. An owner (we will call them Owner A) was complaining about a neighbor's (we will call them Owner B) use of a basketball standard in their back yard. This was a “zero lot line” community meaning the lot line for one unit was an exterior wall of a neighboring unit. The owner that complained was a day sleeper who worked nights. The “neighbor” was the husband in a young family with two children. He also was a “wannabe” semi pro basketball player and loved the BB standard. He brought his daughters out every day to play some B’ball. The “backboard” for loose balls was Owner A’s bedroom wall.

You can imagine the situation. Owner A was not getting sleep. Owner B was determined he had a right to play BB in his back yard. The Association’s CC&Rs banned basketball standards in the development. The Owners complained to and about each other and to the Association Board of directors. Tempers flared. Owner A claimed Owner B played B’ball more than ever, all day long and at times simply bounced the ball against the wall for hours on end. Owner B claimed Owner A tried to run him and his kids down when they were walking to the mailbox. Yes, it was bad.

Entrance: me. Through my assistance, the board tried letters, fining, threats, and everything else. We even had a “mediation” of sorts and tried to get Owner B to move the BBall standard from one side of their home to the other. That side of the yard backed up to the back yard of the realtor who sold the home to Owner B (and who was singlehandedly responsible for the entire situation). If balls went astray they would pound that fence or go into that yard. This would be poetic justice I felt. The details would make this blog too long but are covered in my condolawguru.com blog called “Is Eight Years Too Long?” Owner B would not budge. He was adamant about his rights.

The Association sued. They were in the right but that did not mean it would be a painless process. The courts were clogged enough already, and a law had just been passed that required courts to get to trial within one year of filing, so many cases were pushed up. Getting a courtroom was a nightmare. After going back to court 4 times, meaning the board members had to take time off of work 4 times (and I had to rearrange my schedule 4 times), we got into court! Yay! (One would think.)

The other attorney and I went into the judge’s chambers to talk about pretrial motions. The judge was being very resistant to my client’s case. It seemed he wanted the HOA to back down. I cited a now famous case which had just come down from the California Supreme Court upholding the integrity of HOA CC&Rs which should have been taken in my client’s favor (Nahrstedt v. Lakeside Village Condominium Association). The judge’s response was that the 30 days to appeal had not passed and he would not consider the case.

Okay, that first day of trial was rough. It really seemed the judge was being very difficult. That evening, the manager of the HOA called me and said he remembered where he had seen the judge. He lived in one of the manager’s HOAs and had been called to a hearing on a basketball standard matter. His problem was he refused to paint the basketball standard the same color as the garage, which was the association rule. The association had threatened to fine him and he had threatened to sue the association.

Great! The next day of trial I and the other attorney went into chambers and I asked the judge to recuse himself because of this situation. He said that he could be fair, but did recuse because the same management company represented his association as this one in court.

So we were back to square one. We got another judge, went back to court, and this time, the trial went fast, was over by about 2, and the judge did not even want closing arguments. He ruled right away, in favor of the association. Owner B stomped out of court and fired his attorney on the way (a little late I would say).

And the judge ultimately granted about 90% of the association’s attorney’s fees be reimbursed, discounting all of the fees charged for coming to trial on days when there was no trial. He said that was not the client’s fault. (It was not my client’s fault either, but so be it.)

It took about 3 times of hitting Owner B’s bank account on payday to recover the fees. Of course, he did not pay them willingly. And the board members of course did not recover any time lost from work or anything for the incredible inconvenience to them. It was an excruciating process for what should have been a simple “slam dunk” case.

The moral of the story is: THERE IS NO SLAM DUNK!!! Don’t think court will be painless, even when you “win”

Sometimes there is strange “justice” though. I heard several months later that the first judge went back to his HOA and agreed to paint his house the same color as his basketball standard! I hope it’s true. If so, then one more judge got “educated”.

Posted by Beth Grimm at 8:07 PM

February 1, 2010

COOKING SMELLS, IS THERE RELIEF IN AN HOA OR CONDO?

I get all sorts of emails about problems in HOAs and Condos. Here is a difficult one:

"My problem is two-fold: 1. Hours upon hours of curry cooking by my upstairs neighbors. 2. When the downstairs unit turns on their kitchen exhaust fan the smell is concentrated inside the walls around the kitchen exhaust vent piping, which then enters my unit through my kitchen, laundry room and hall bathroom. (all these rooms share common walls around the ducting)

Is there any law that would help?"

This person believed there was a crack in the venting that is causing the smell to escape the pipes between the walls. The smell is very pervasive. The writer says: "My eyes burn, and the smell is linguring on my belongings, etc. To me this is air pollution and a nuisence. I can't open up the windows, because the outside air around my end unit is thick with the smell of curry. "

The writer believes that the heavy curry and grease combination is a fire hazard. The writer says that it is very difficult to get the smell out of the walls and rugs, or do anything about the cooking itself. (I wonder if they have tried to talk to the neighbor.)

The writer believes there is a need for a company that specializes in running a probe that detects leaks up through downstairs units kitchen vent piping and says that it would would probably mean going though the walls the unit to repair. A difficult problem and not that uncommon. It is similar to a smoking issue except that there are not studies that find second hand curry to be hazardous to the health. Some of the remedies would be similar, and there are websites that suggest how to block smells between units when there is a problem with cigarette smoke. You might search for smoking smell solutions or similar terms. The same measures might work for curry smells. There are companies that specialize in this sort of thing, right down to insulating outlets.

It is similar to noise issues but the remedies are different. Dealing with the issue with the neighbors is similar though, and communications might lead to some relief, if the people cooking with the curry are willing to talk. There are various ways to approach the neighbors and deal with the issues discussed in a Primer available on my website - the Enforcement Advanced E-4 Primer that deals with neighbor to neighbor issues. (See the webstore - $25.)

And it sounds like in this case that the association might get involved. The writer says that the association says if it finds nothing wrong with the venting system, it will charge the owner the costs of any investigation. That may not sound especially fair; however, the HOA may have taken that position feeling that the owner's claim that they believe there is a problem with the common area venting system is just an attempt to "pass the buck" to someone else to deal with this difficult situation.

If the owner cannot get resolution through taking reasonable measures to block the invading smells, he or she might have some luck pursuing a nuisance claim in small claims court. One can file for money damages for a nuisance. No guarantees though. The writer would have to convince the judge hearing the case that the curry use is overboard and a real nuisance. The most likely success would come if the owner can prove that the excessive cooking with curry is a danger (quoting studies or believable articles that the writer says are available), or is adversely affecting his or her health (such as the burning sensation in the eyes, note from the doctor, etc.). If the writer had sensitiviities or allergies, there might be some basis to file a claim based on adverse health issues. I would not start there, but one might end up there if the affect is really adverse to the health.

It sounds like there might be a problem with the venting system if it does not absorb the cooking smell to some degree. Maybe this is something the curry cookers might look into, if they were willing, i.e., a better stove exhaust system.

It's a tough one. I do not have an easy answer, but in the Primer I do discuss how to deal with difficult neighbor to neighbor issues. And how to determine when the Association should (or should not) get involved.

Anyone out there have any solutions or suggestions? Send me an email.

Posted by Beth Grimm at 9:57 PM

November 12, 2009

DAVIS STIRLING or Davis Stirling, What is Fair in Hearings in HOAs and Condos?

I continue to get questions relating to hearings, due process, notice, opportunity to confront witnesses, continuous fining, etc. and I will share some of these with you, and then will give my comments. Since this is such a pressing matter, I will post this information on both of my blogs, California HOA & Condo Law Blog and Condolawguru.blog. Here is a conglomeration of 3 emails I received:

“First of all, I enjoy reading your blogs on line and look forward to reading more in the future. I have read your article dated June 15, 2009 relating to the rights of homeowners to confront witnesses in disciplinary hearings. I am an owner in a condo development that has restrictions on [vehicles being parked in the driveway/garbage cans being left out too long/stored items in the garage]. There are some exceptions to the rules made; apparently some people are given more leeway than others. Sometimes the rule is enforced, and sometimes it is not. To complicate things, I have a renter and the renter denies violating any of the rules related to the [thing complained of].

The Notice of Hearing has summoned me to appear before the Board ON ____________ and to “state my position at the Hearing”. Since the notice I received does not provide any details of the alleged violation other than a cursory reference to the Rule allegedly violated, I don’t know how I can “state a case” or get a fair hearing. I do not even know what dates to ask my tenant about or tell him that he was cited. Here are my concerns:

The Notice does not state the date and time when the alleged violations occurred. The Notice does not provide details as to the make, model, color, or license number of vehicles involved in the alleged violations. The Notice does not state that the Board investigated the alleged violations and confirmed the validity of the allegations. Should the Board not provide me with some sort of “evidence” to prove beyond a reasonable doubt that the alleged violations did in fact occur? Isn’t the burden of proof upon the management company and the Board to provide evidence that violations did actually occur and were performed by people for whom I am responsible?

How can I or anyone receiving a Notice of this nature be expected to have a meaningful discussion with my tenant, or to answer the alleged charges of violation without having any information? I would appreciate receiving your comments.”

Here are my comments.

I believe that notices relating to violations should refer to specific violations, giving the date, the time and the violation, and in the matter of parking violations, vehicles should be identified.

Why? Because it is only reasonable to identify the problem so that the owner knows what to respond to at the hearing. I had personal experience with a situation 3 times in a condo where I had a tenant and violations were reported. All 3 times the HOA had received information on the WRONG UNIT. The violator was in the unit next door.

I believe that owners have the right to know how the information was reported – a written complaint, a log presented by the manager or person in charge of inspections, etc. It is my belief that no complaint should be addressed unless it is presented in writing to the board, or personally verified by management or a board appointed representative.

Why? Because in my vast experience in handling violations, I OFTEN FIND that people complain because they don’t like the neighbors, that they tend to exaggerate when that is the case, that they often change their stories when they are asked exactly what occurred and when, and that boards are often too lax in the way they document problems, and it often comes back to bite them.

I don’t believe that boards must send out continuous or re-occurring hearing notices for continuing or re-occuring violations IF THE BOARD HAS SET UP THE PROCESS SO THAT THE OWNER CLEARLY KNOWS WHAT TO EXPECT IF THE SAME VIOLATIONS CONTINUE TO OCCUR but I do believe that Boards must have a process whereby the owner is notified each time after the first time (the first time does require a hearing) that a fine is imposed, and why (meaning notice of the date, time, description of the violation, etc.). This is the only way that an owner has a reasonable chance of addressing the action that was taken in a meaningful way (if there is a meaningful excuse or extenuating circumstances that might apply).

I do not believe that owners need the opportunity to CONFRONT witnesses. I am not against having everyone in the same room to talk about what is happening and in many cases, it helps to do so and many boards and owners are fine with this. However, many boards lack the skills to handle a situation where the confrontation becomes uncomfortable. And besides, a picture is worth a 1000 words so boards, why not require a dated picture of the violation whenever possible. With digital cameras, it’s quite easy to eliminate the need for an argument.

That’s my story, and I’m stickin’ to it, yes, I know someone is going to tell me next that “Davis Stirling” says that boards cannot impose recurring fines without a hearing for each violation and that “Davis Stirling” says owners should be able to confront witnesses. I think they are talking about “Davis Stirling” the website (which is a bunch of lawyers, just like me, with a different take on the law) because THE DAVIS STIRLING ACT – THE LAW - does not get that specific.

Posted by Beth Grimm at 8:58 PM

October 11, 2009

Undesirable Neighbors in Condo or HOA - What Can 'Ya Do About It?

Someone next door is bringing in the homeless - is that a problem with a solution? I get many questions about neighborhood issues. The rights of owners in a Condo or HOA are different than those in a subdivision without a homeowners association. There are more options in an HOA or Condo than the regular old subdivision - so there ... there are some good things about being in an association! (Some people wonder because there is a disturbing amount of "bad press" out there.)

Here's the email I received about homeless trouble makers. It's not a crime or necessarily a bad thing if you want to take in a homeless person to help them out, but it can create problems. Read on.

"We live in [city eliminated to protect the writer], CA in a [medium sized - less than 100 unit] complex.We have a neighbor that has been disturbing the peace and quiet as well as bringing "friends" that are homeless .One of the neighbors saw him destroying property from common area. He has a record with the police who seem to be unable to do anything. Cars have been vandalized, property from porches has been stolen but no proof can be gathered.The only thing we can pin him for is disturbing the peace and quiet. Is there something the HOA can do ?"

I am not sure how the "homeless" contingent fits in here - maybe it's the homeless person's unfortunate luck to be associated with a "trouble maker" but to make sure I cover the question to best I can (addressing troublemakers and homeless hanging around HOAs), I will keep both topics in mind.

For people who violate rules, check the association documents for all the rights and remedies. Boards usually can consider disciplinary action (which could include fines, penalties, reimbursement assessments, suspension of rights, etc.) upon the owner of a unit for actions of any of the residents or guests allowed in the unit (whether the homeless, their friends on probation, the problem child, the senile great aunt, etc.) if they have "enough" proof, which may even include only "circumstantial evidence". The law requires various forms of "due process" including notice of the problem and a hearing, circulation of (fine) penalty schedules to the members and the like. Some attorneys even say that there has to be a witness and the accused must have the opportunity to "cross examine" the witness.

I don't go that far. If there are a number of problems surrounding a unit that begin when new residents move into the neighborhood, suspicion about those residents and their "guests" or visitors might be justified and so additional "investigative" measures might be smart. Calling them to a hearing might elicit further information - in fact - many "guilty" parties cannot wait to tell the Board why they have a right to do what they are doing or why the Board can't do anything about it. Who needs a witness for that?

For people who are homeless and "hang around" - the police can be called and yes, people in HOAs and Condos have the same right to police protection as those who do not live in the HOA or Condo, as we all pay taxes for police protection and anyone who hangs around who does not belong on the property is trespassing.

So what is better about being in an HOA or Condo? (1) There are usually specific rules, (2) there is an association that has enforcement powers, (3) the Board usually can do something to address a nuisance, and, last but not least, (4) owners can also enforce the rules!

Yes, cities can do code enforcement in a subdivision; however, the (1) rules and boundaries are not generally as clear between code violations and CC&Rs (as the recorded regulations are called in California) and rules, (2) there may not be enough teeth in codes regarding nuisance situations, and (3) many municipalities lack the resources to address code violations.

So there you have it. In an HOA or Condo you have two possible layers of enforcement, i.e., code ordinance by municipality (yes, code ordinance enforcement applies in HOAs too), and board or neighbor for neighbor nuisance situations.

Posted by Beth Grimm at 11:55 AM

August 31, 2009

How Do You Negotiate A Payment Plan For Your HOA Debt?

The topic of the day for HOAs and Condo Associations is assessments, imposition, payment and collection and I may as well say distrust, frustration, anger, hopelessness, financial devastation, and eventual polarization of the parties.

People in California are trying to walk away from the delinquencies, and getting the surprise of their lives when they find out the HOA or Condo Association is coming after them personally for the debt. I have written about this before, many times. And the collection costs attached to the debt by this time can be quite staggering.

And so many times, the parties get polarized.

But before that happens, if I have reached you in time, I can point you to a good blog about negotiating resolution of the debt - written by a long time pal who has been a community association manager for many years, someone I used to teach management classes with, years ago (before industry organizations got busy and started offering education to managers).

Check it out, visit the blogsite of Gayle Hasley.

If I did not reach you in time, and since I like the really hard questions, here is an all-to-common scenario: the owner realizes that the debt will not go away (sometimes this happens in the midst of a short sale situation) and responds (not always in a congenial frame of mind).

After months of ignoring the association communications, the owner contacts the association and says they cannot pay or they ask to meet with the Board and/or commonly asks for the Board to forgive all or part of the debt.

Owners do have the right to ask for a meeting about a payment plan, if the association offers payment plans (many do) but there are timing limits in the law - within 15 days after the lien notice. And Boards are loathe to (and in jeopardy of being accused of breach of their duty to collect assessments) write down the debt. As for the meetings, some boards waive the timelines and are willing to meet with the owners. However, often the arguments and fights ensue over :

The Board's resistance to payment plans the owner thinks are reasonable.
The Board's policy of appointing fewer than all of the board members to handle the meetings.
The seeming battle over convenience of time for meeting.
The unwillingness of Boards to even discuss writing down the debt.
The owner's arguments that the costs are unreasonable.
AND
Games, power battles, misunderstandings, egos, and frustrations over the economic stressors on both sides, sometimes health issues, and the seeming unresolvable issue of mounting collection costs. If an owner hires an attorney, the HOA or CONDO Association often also hires and attorney and .... well. ... talk about mounting costs! ... Once the attorneys get to arguing ... need I say more?

If the assessments are legally imposed, and the owner's attorney does not understand the rights of the HOA, it becomes a nightmare ... for both sides.

So how do you get it back? .... the ability to negotiate I mean after the stressful and damaging interchange? After the true facts and realities are understood, and something has to give? How can the parties save face (usually it is the owner that needs to do the face saving unless the Board has made some big gaff)?

The obvious answer is "eat crow". Acknowledge the frustrations, the misunderstandings, and the realities, and ... apologize. And as for offering up a payment plan, there is strategy involved -the best course is to propose some lump sum good faith payment, along with a payment plan geared to paydown the delinquency, and keep up the ongoing regular assessments. As a rule of thumb, years ago when I did collections, my guidelines were that for a small delinquency - in the neighborhood of $1000 or $2000 somewhere, a payment plan geared to payoff the delinquency and costs within 6 months (counting the "down" money) would be considered. For a larger delinquency, catching up or paying off the delinquency within a year would usually be considered.

Today, many associations are hurting just like owners in them are hurting, and Boards have to be more careful because in many cases the delinquency rates are higher and the money is slower to come in to cover the bills. So Boards in the various associations have their own standards and requirements if payment plans are offered ... but know this: a bird in the hand is welcome in many cases and so a proposed payment plan coupled with the offer of a portion of the debt to be paid up front (I would suggest at least 10% or more), can be a big carrot.

Posted by Beth Grimm at 9:22 PM

August 29, 2009

To Foreclose or Not to Foreclose an HOA Property - That is the Question

To foreclose or not to foreclose, that is the burning question these days for HOA and Condo Association boards. Moving in the direction of foreclosure used to be the way to get owners to pay delinquent assessments. I say "used to be" because people used to have equity in their homes, and the threat of foreclosure was a real threat.

To pay or not to pay the delinquent assessment is the burning question these days for owners. It used to be a no-brainer. If the HOA or Condo Association could foreclose and force the sale of your home, or take it back for unpaid assessments, the best answer of course was to make arrangements to pay the assessments, whether in a lump sum or on a payment plan (assuming the HOA or Condo board allowed a payment plan).

It used to be - should I say in the "olden days" - pre "recession", that boards could accept payment plans because a small percentage of the owners were delinquent.

It used to be that boards would move toward foreclosure in all but a few situations to collect assessments. That was "pre-recession". Now many HOA and Condo boards are looking at ways to pursue the debt of delinquent assessments against the individual owner(s) during whose ownership the delinquency accrued (yes, that is usually an option available to HOAs, but many, many people do not know that!).

Boy, the "olden days" are gone. The "steel hammer" in the threat of an HOA foreclosure is all but turned to a weak rubber mallet. The desire to stay current with delinquent assessments has all but turned into the sands of time, slipping through the grasp of the average American. Owners who think they are "in the clear" for a delinquency when the bank forecloses are getting unwelcome surprises when served with a subpena for a personal debt action. Short sales are falling apart at the last minute because the parties (seller, buyer and lender) are ignoring the HOA and the accrued assessment debt until it can no longer be ignored - which is the case when a valid HOA lien shows up on the title search.

The collection of delinquent assessments has become an elusive effort in futility in many cases. And for that reason, many HOA and Condo Association boards have stopped offering payment plans. The reality is that the association bills need to be paid ... and in many cases, the income from assessments has dropped dramatically. Associations that used to run with 1% or less in deliqencies are in many cases running with 10% or more today!

What is the answer?

Pray for better times and an economic upturn.
Pray for an improvement in the housing market to where it makes sense to keep one's property.
Pray for help in balancing a precarious budget.
Pray for the well-being of everyone .. And I do mean everyone ... The better off everyone is, the more likely the economy is to start a serious upturn.

And if you are not a religious person, then GET EDUCATED about the facts, options and solutions.

You can find many answers and get help in working out solutions in the various 5 Assessment Primers that are available on my website. Since each is about 20 pages long, and detailed to the max about the specific subject matter, it would be absurd to try and summarize the information in one blog or one article. The information is there for the taking, for a very small price ($25 each). Get educated and whether you are on an association board, in hot water over your own finances, or trying to help out a relative, it pays to have the information needed to make wise decisions. Here are the topics: (California law incorporated)

Basic Assessments A-1 - How To Determine How Much Should be Charged
Assessments A-2 - All About HOA Foreclosure
Assessments A-3 - All About Bankruptcy in HOAs
Assessments A-4 - Coping With the Big Special Assessment
Assessments A-5 - Collections in Hard Times
Assessments A-F - Forms Used in Collections and Satisfaction of Disclosure Requirements

Visit the CaliforniaCondoGuru - See the Publications Page and the Webstore

Posted by Beth Grimm at 3:29 PM

August 12, 2009

I HAVE FREE SPEECH RIGHTS - The Saga of Bullies-Harassment-Embarrassment in HOAs and Condos

There has been a lot in the news lately about the difficulties of "town hall" meetings set up to inform constituents about pending legislative issues. A "town hall" meeting can be a great forum to discuss issues and collect gems that help to discover problems, and solutions.

Or the meeting can be a melee, out of control, where people get hurt and nothing gets accomplished. (Maybe you have seen "Parks and Recreation" ion TV with Amy Poeler, very funny and sad at the same time - although she tries hard and keeps a stiff upper lip, it's challenging to put yourself out there in front of a crowd that is less than satisfied with local government.)

Concurrently with all the news about town hall meetings out of control, there has been a thread of hits on the web about how outrageous conduct of owners or board members at HOA or Condo Association meetings should be handled. One way is ejection from a meeting (but of course, that can lead to other problems). One is to consider the conduct a nuisance or harassment (if there is ill intent involved) and consider fines, possibly, and if its eggregious, consider a ban from meetings where the disruptions have been occurring. All disciplinary action requires a hearing of course, at least so in California. And what the documents say about disciplinary matters is important.

One person responded in a thread about fines for harassment or nuisance behavior by saying:

"BULLSHIT -- SO-CALLED "anti-harassment" resolutions violate both the statutory and constitutional rights of the homeowner. EVEN if the homeowner uses yelling and profanity, it is protected speech."

Those who wish to engage in public displays of bad temper and childish behavior, swearing and the like, often claim that they have a "Free Speech Right" that allows them to behave badly. Not so. Yes, Americans have a right to free speech, however, even the Constitution allows some controls over time, place and manner. There are many cases about this.

The cite where this thread took place (DavisStirling.com) noted that Robert's Rules of Order for meetings, 10th Edition, p. 627-629 allows for ejecting someone from a meeting if they engage in displays of profanity or yell at people during a meeting that is subject to open session, such as an open session of Congress or a city council meeting. The same holds true for decorum in a court room, as they noted.

Besides the impropriety of this kind of behavior, it tends to mark people as crazy, fanatical, extreme, mad, or wild (where do you think the oft-coined tag "disgruntled" homeowner came from)?

The truth is that the rationale people of the world that want change tend to make a difference. Sometimes the radicals do to, but in a homeowners association setting, when I speak with owners who are angry and want change, I often find that they have to take a step back, and become rational, gather the right kind of information, and engage others in the discussion through rational communications, because what tends to happen if they remain "out there" is they attract other radicals who hurt their cause and at the same time, put off the rational people who might also like to see some changes.

These loud and offensive people may claim they are just passionate, while at the same time acting like an idiot. I heard on TV news this am a woman Senator from Missouri say "Just because they yell does not mean they are right."

Touche!
**

I am working on my E-news (free by the way by signing up through the condo guru site http://www.californiacondoguru.com for September 2009. This edition will be about bullies, and meetings, and how to make the best of the situation, and how to get through business when there is disruptive comment.

If you send me a tweet to Califcondoguru on twitter, maybe we can get a discussion going.

Posted by Beth Grimm at 10:37 AM

August 8, 2009

That HOA or CONDO Attorney (Manager, Board Member, Neighbor, etc.) is a Rat!

In the condo and HOA setting, I often hear something like this:

That other attorney (person, board member, neighbor, etc.) is a rat. There is no way this is going to settle without a lawsuit. Are you an attorney that will "attack"?

First of all, I will say that I am an attorney that will try and figure out the best way to resolve a legal (or practical, if that comes before me) problem for a client, and a lawsuit is never the "best" way. The "best" way is one that is time and cost efficient, and that gets the client a very good, or in cases where the client has done something along the way that complicates things, a reasonable outcome.

If you go to an attorney and they discuss no other options than suing the other side, you are not getting the full gamut of options. It is different if you are named the defending party in a lawsuit because in that case you cannot avoid working within the lawsuit parameters, which mean that timelines and procedural requirements must be met, even if settlement discussions are occurring. But even if you are on the defense side, any attorney should be discussing all options, not just those within the lawsuit.

So what are the other options? They might include simply complying, walking away, or giving in; talking with the "other side", negotiation, conciliation, seeking agreement to consider an outside expert's opinion on the situation, mediation, (and maybe even "meditation" because although this is not a recognized means to a remedy, you can think better with a clear head), and/or arbitration. People just simply do not comprehend well what a lawsuit means in the big picture. Here is a somewhat accurate analysis, money, stress, possibly adverse rulings, more stress, time away from home or work, more stress, more money, rules, rules, rules, and big egos, [in many cases] attorney strutting and positioning, more stress and more money. Of course, I do not want to belittle the process if there is a lot at stake, and you are "right on" with the legal side of things. Sometimes matters reach the point where litigation is the "only way left" and that, my friends, is the only time that I believe it should be Attorneys should promote litigation.

Now, to address the complaints and name calling of the people on the "other side" of a legal dispute:

First, attorneys: Yes, I will say there are some "rats" out there. However, any attorney has to take the information of their clients at face value, at least in the beginning, until more "comes out", and sometimes then, with more ethical attorneys, as they find out that they did not get the full picture, or all of the facts, or that their client is actually "the problem", there should be a recognizable shift toward consideration of looking for a solution other than court or a trial. So don't go to sleep at the wheel once a legal demand is made. Instead, "enlighten" if there is counter information you don't think the attorney knows.

Boards: Even boards who do things wrong intentionally can do a turn-around if they have an attorney who provides them a reality check and tries to get them to set things right, so keep the name calling and posturing and ill-assumptions out of the room and the door open to re-assessing the situation.

Neighbors and other persons: Individuals often act out of "the passion of the moment" and may do things that deserve criticism, sometimes very strong criticism. Sometimes they do very sorry things and are sorry afterward, but do not know how to get out of the corner they painted themselves into.

But, if you can overlook their mood, and resist reacting in kind or calling them names, at some point, they may turn. I have seen it many many many times.

Most people just want peace in their homes, condos and HOAs. And most, once they realize there are rules, guidelines, and boundaries, and that they are not 100% right about everything, will evolve from what seems to be a rat ... into a hamster (notice I did not say "silk purse") which is more tolerable to most people.

Posted by Beth Grimm at 11:37 AM

August 4, 2009

NOW LET'S BE FAIR - HOA AND CONDO BOARDS CAN BE IMPOSSIBLE TOO!

You know what? Boards can be as difficult as owners! Sometimes an HOA board member will ask me, sometimes with an impatient or antagonistic tone: "So, you represent owners too, what's up with that?"

What's up is that some Boards are as difficult, obnoxious, stubborn, and unreasonable as some owners. And when someone is purposely stonewalling or ignoring the law or is set on making someone's life miserable, then I think that the victim of this behavior deserves good legal advice as to how to deal with the problem.

If more knowledgeable HOA attorneys were to offer services without locking themselves into one side of the "board table" or the other, there would not be such a void of good legal advice for owners.

That's my story and I'm stickin' to it!

Posted by Beth Grimm at 3:26 PM

July 27, 2009

Landscape Noise in HOAs and Condos - Is It Negotiable?

II have written alot about noise issues in condos and HOAs. Most involve hard surface floors, children, dogs and such. Here is a new one!

From a reader: "I''m emailing now to mention a situation of my own that I've not seen you address, in case the topic is of interest to you or your readers. Given all your terrific material on neighbor-neighbor noise issues, I'm surprised this problem hasn't come up more often: landscaping noise! I know leaf-blowers are intensely controversial in other settings, but I'm not sure how often people are bothered by their use, or the use of other heavy machinery (in my case, the leaf-blowers are actually the least of it!) in landscaping operations performed by the
HOA and its agents.

I work at home, and I'm being driven slowly batty by this. When the machines descend outside my unit (literally *right* outside -- I hear them bumping against my front door from time to time!), they're here for sometimes as long as an hour, and meanwhile, there's no place inside where I can work, read, take phone calls, or even just sit and relax. It's physically and psychologically miserable! Our manager has indicated that exploring quieter landscaping alternatives is out of the question, as these machines are the "most efficient" ..., and also rejected my request for advance notice of the days when they'll be around my unit (so that I can arrange to be away, or at least to have a car on hand for a quick escape), indicating that while there is a regular schedule, last-minute changes are often "necessary." ... If this were an issue between neighbors, and the noise were of this magnitude, I'd expect the other person to work with me to find a solution ... However, the HOA's position is 100% unyielding, and it's not clear to me whether I have any recourse beyond my lone ballot in the next Board election. So what I'm wondering is whether ... HOAs ... have unlimited powers to interfere with individual "quiet use and enjoyment." Or, do they have any of the same courtesy obligations to residents that neighbors have to one another?"

Answer: These are good questions. It looks like this owner has reasonably tried to find out the kind of information needed so that he/she can find a resolution to the problem. If an HOA or manager wanted to minimize this kind of issue, he or she might include in the HOA or Condo newsletter or a note posted somewhere in the common area a schedule for the days the landscapers would be working around the buildings. It is certainly okay to add a cavaet that the schedule is subject to change if the landscapers or board needs to alter it or schedule emergency work.

This situation does not only bother people who work at home, but also can be very disruptive to naptime for children, or relaxation time for seniors, TV soap time for "addicts" (like my grandmother) and others. I remember one time I was traveling with my children and grandchildren in Santa Fe, New Mexico and we were staying in a townhome. I offered to babysit my granddaughter while my daughter and son in law took a walk downtown. The baby was about 1 1/2. She went down for a nap and it promised to be an easy and relaxing afternoon ... until the landscapers went to work. It seemed like they were beating at the door with the machines, and standing outside the baby's window with the blower for an eternity. The baby woke up terrified and it took about an hour to calm her down. It was very upsetting, to me and to her.

There is a lot of room for improvement in this situation. If the manager can at least let this owner know what the usual schedule is, the owner can try and plan for it, maybe saving up errands to be run when the offensive machines begin their cacaphony. As for the owner, the purchase of sound deadening or noise reduction earphones might help. Try a sporting goods store or gun shop, or maybe a radio shack - to purchase the noise reduction earphones and some nice pleasant music.

This kind of situation might benefit from a "mediation" but the expense is really not necessary. The work has to be done, the question is when, and how difficult it would be to ask the landscapers to try to keep to a particular schedule around the building involved to accomodate a person who is a "work at home".

This is not rocket science. All it takes is a little common sense and compassion for a fellow human being.

Posted by Beth Grimm at 9:11 PM

June 25, 2009

HOA and CONDO Board Meetings-May Members Participate?

Ctd. from an earlier blog ... Pt II

Alot of people have questions about HOA and Condo meetings, what is required, how can owners participate, is an agenda a requirement, how much power should management have, etc. I am tackling some of the questions I have received recently about meetings in this and some companion blogs. Given the facts and background, a lot of feedback is needed and the topics are wide-ranging, so look for the companion blogs based on the following background including more on the management's role and responsibilities.

Background Information Provided: Our Management Company interprets the new Agenda Law, as to when and how members can approach the board, to mean that Members can only address the Board during the homeowner forum. The problems we are experiencing are as follows: Even after informing the Board about the new Agenda Law, it continues to mail Agendas with unclear topics as well as the use of the generic language "Old Business" and "New Business"." [See the companion blog response on Agendas.] Hence, when attempting to ask for clarifications when the topic is being discussed by the Board, the inquiring Member(s) is/are told by the Board's President, with the support of the Management Company, to wait to speak/ask questions/clarifications until the "Open Forum" period of the Board Meeting. The problem with that is that by then the Board has already made their decision(s) about (a) certain topic(s). The "Open Forum" portion is at the end of the Board Meeting....not at the beginning. Not that it matters in our situation as our Board refused to submit clear Agenda Topics."

Comment: I agree wholeheartedly that this situation could frustrate inquiring homeowners no end. Boards have many "motives" for setting a specific time for homeowner forum. Some are very reasonable reasons and others are not. And sometimes a board does things to minimize time spent with what they consider "difficult owners". Although, the "difficult owner" may also have very good motives, or very bad ones. In any case, I think it fair to acknowledge that most owners that are considered "difficult" earned that badge by expressing frustration with the association and board. Now, we could go on for hours about where that frustration came from (and have in other blogs), but the purpose of this blog is to cover why boards limit forum time at meetings and why they choose a particular time for the forum. This is a common practice that owners would not generally fully understand, unless they asked. As such, it commonly becomes a source of frustration for certain owners who want to comment about association business and feel stifled.

One acceptable reason for seeking "containment" of the time for the homeowner forum is that it helps move the board business meetings along and the board members are volunteers who commonly (1) do not like interruptions at every subject brought up and (2) want to get home at a decent hour as most board meetings take place in the evenings and people are already tired and spent. One "bad motive" is that the board wants to discourage members from participating either because the forum is held early enough that computer owners are not home in time to attend during the forum time, or that owners in attendance will lose interest by the end of the meeting and leave before the forum time. A plausible reason for having the forum at the beginning or end of the meeting is that it can save the HOA or Condo money if the manager does not have to be there, and minutes do not have to include the homeowner comment ("forum") period. Most management contracts have some limitations on meeting time without going into "extra compensation time", which answers the next question/statement posed by the owner who wrote in to me which is addressed in the third companion blog - asking about the manager's role.

All that said, there are many boards that allow comment upon topics discussed in the board meeting, because they feel that if owners are willing to come to the meetings, they ought to be able to "weigh in". Likewise, there are many situations where owners come to the board meetings and try to direct the board to their way of thinking by disrupting the process of doing business. Some of these owners are not willing to serve, but are certainly willing to tell the board how to do its job, and some get belligerent and abusive.

So, the important thing is to strike a balance, and that balance could be found by publishing a realistic informative Agenda which lists the topics that are going to be discussed, and thus allow owners who are interested in coming the opportunity to "weigh in" on the topic, whether before it is discussed or during. Making them wait to "weigh in" after the action is taken does not make a lot of sense. However, the law on homeowner participation was enacted to give owners the opportunity to address the board directly, not to usurp the business portion of the meeting, so keep that in mind too.

For much much more on meetings issues, visit www.californiacondoguru.com and look through the publications. Look specifically for the Primers on Operations (I and II) and the Operations Forms primer which sets forth forms related to meetings, including a sample agenda and discussion about it.

Posted by Beth Grimm at 9:39 AM

May 31, 2009

HOA and CONDO Disciplinary Hearings - Which is Best? Open or Closed Sessions?

While we are on the subject of enforcement (did you see the last post on fines?) there are other prickly issues to consider.

We were talking about the California Civil Code section that speaks to what matters can be heard in executive session ... and disciplinary actions are included (see Civil Code Section 1363.05 - the Common Interest Development Open Meetings Act). The statute says that the meeting to consider discipline shall be held in exec session if the member requests it, which is totally incongruous. Why? because owners (1) do not know they can request an open session and (2) usually do not want their "dirty laundry aired in "open session" hearings.

Thus, I have taken the position that the Boards should put in their letters/notices to owners of a hearing that the meeting will be held in executive session unless the member requests an open meeting . In doing this, ...

1. The Board is letting the owner know it is the board's intention to hold the meeting in exec session BUT
2. That if the owner does not want it heard in executive session, they do have the option to ask that it not be.

Of course, this is not in perfect alignment with the statute, but I feel that it should overcome any argument by an owner that the board held a hearing in executive session without their (albeit implicit) consent.

Most boards just hold the hearings in executive session without regard for the technical issues around the statute language. However, I have seen a board get challenged on not allowing an owner a hearing in an open meeting. If the owner wants the hearing in open session, they have that right because of the way the statute reads. On the other hand, if the Board feels that having a hearing in open session presents other issues such as violation of someone else's privacy (a witness perhaps), it is best to seek the assistance of knowledgeable legal counsel to set up a reasonable process. Sometimes, different people's interests collide and there is not a way to technically satisfy both without "bending" (notice I did not say "breaking") the law.

My take on witnesses is that when a board holds a hearing, it normally states the charges and complaints but does not give out names specifically or share anything with an owner that could be embarrassing or damaging to others. Other legal practitioners take a different position that anyone charged with any violation has a right not only to know who complained, but to confront them. If a violation can be verified by someone not involved, then why create stress and promote actions that could result in retaliation? If the matter cannot be verified by anyone else, and there are no other witnesses, and it has become a "he said, she said" situation, much can be learned by holding a "meeting" of the two parties, by a person that is intuitive, a good listener, and interested in finding out what actually is occurring, before disciplinary action is meted out.

The law is what it is .... but it is not always easy to figure out what to do when interests collide, so get help when needed.

There are 5 Enforcement Primers available on the condoguru website so you can find out alot more about rule setting, policies, hearings and good enforcement practices if you wish to avail yourself of this valuable and affordable resource.

Posted by Beth Grimm at 7:11 PM

May 29, 2009

Does an HOA or Condo Owner Have To Pay Assessments Even If Their Home is Foreclosed?

I get this question at least two or three times a week.

Question: I'm not sure if I need an attorney. My condo was recently foreclosed. Now I have received a complaint from my HOA for dues that I did not pay before my condo was foreclosed. I thought they would take the money that I owed through the foreclosure, but I guess they never opted to get their money through the foreclosure proceedings. Now am I personally obligated to pay them?

Answer: I am going to assume this foreclosure was by the bank, and not the HOA. If the HOA foreclosed and went to sale, it would get a Trustees Deed to the property and that would settle the debt with the HOA.

An HOA or Condo Association can pursue a debt through foreclosure (so long as the documents allow it) or by personal judgment. When a lender forecloses, the association does not “opt” to get money or not. If there is leftover money from any sale of a home through a bank (or any other lienholder for that matter) foreclosure, those first in line (meaning their secured interest is first in priority) get paid first and the trustees have a list. If there is enough money to pay the existing lien, the association should receive it. If not, in these days of the recession economy, more and more HOAs and Condo Associations are going after the owners who defaulted to collect the association debt personnally, because there is no equity in many of the homes.

If you want to know all about HOA or Condo foreclosures, or all about HOA or Condo bankruptcies and what the effect is on HOAs and Condo Associations in California, visit the Californiacondoguru and go to the Webstore. There are several Primers there for you, 5 on assessments alone, including Foreclosures, Bankruptcies and Collections.

Posted by Beth Grimm at 1:13 PM

May 6, 2009

More on Hardwood Floors/Allergies/Intolerable Noise

Some days questions come in that make me take pause as there is no easy resolution. Here is one that recently came in:

"We have a section in our CC&Rs that state that no unit can install hard-floor coverings when they live above a unit, and/or make alterations that will increase the sound transmission from one unit to another. The Architectural Committee at my community approved our upstairs neighbors to install hardwood floors throughout their unit because [of allergy issues] to carpeting. Now the footfall noise has increased tremendously to such a degree that we cannot sleep if our upstairs neighbors are awake. ... I don't know how we could ever sell our property with the degree of noise that is now being transmitted from above. ... I was not made aware of this application or approval until I heard the construction going on above me and asked about it. Does the Architectural Committee and/or Board have the ability to unilaterally approve such an exemption without my involvement when it would impact another home owner (me and my family) so tremendously?"

This is the long and short of it.

**Most documents do allow boards or architectural committees to make decisions about alterations.
**Some documents have restrictions that would effectively limit what can or cannot be approved.
**Laws through cases and statutes do exist to protect people with disabilities and assure that they, too, can have quality of life, and boards have to deal with those potential issues when considering requests like this for alterations.

So many times, a board is caught between a rock and a hard place (or should I say ... a hardwood floor).

What are the options in this situation?

Boards and ACC:

Check with an accoustics professional BEFORE APPROVING ANYTHING to see what the options are for protecting the neighbors below! And require that cork or some equivalent type of underlayment be included in the installation.

If this was not done ... then the problem is left in the hands of an owner, and an association may be exposed to some possible repercussions.

Other things for all parties to look at:

Rugs and padding that are made of nonallergenic fibers for the areas where traffic occurs. With active children, these tend to be the areas of the longest stretch of running capability.

Rubber based floor coverings such as those used in commercial buildings that deaden noise.

Felt or other soft protecting coasters for furniture and tables holding speakers, TVs, etc. and all furniture, and appliances that have noise making capability.

Requiring removal of shoes - wearing soft sole shoes or slippers when in the home.

Speaking in lower terms as noise echoes through rooms with hard surface flooring.

White noise machines.

Communication, communication, communication.

When parties clam up or retaliate, the problems escalate. Irresponsible actions lead to lawsuits and these are some of the worst for all parties because there is no easy resolution. If parties are obstinate, and the aggrieved party cannot get any kind of satisfaction through attempts to communicate, these are options:

Seek mediation of the issues. If the neighbors or board won't talk to you, call a local mediation service and see if they can get the other parties to the table.

Seek recovery for nuisance in small claims court. Perhaps a hearing officer can help prod the parties to take more assertive action to address the noise issues ... the claim would be nuisance, the request would be for monetary damages, and you can talk to the small claims court advisor about how to file. Some small claims courts have classes on filing a small claims action.

Seek an injunction ordering some kinds of accomodation. For this you will need a lawyer. Also, sometimes a letter from a lawyer laying out the legal possibilities and claims can engender more cooperation or bring a party to the "mediation" table to avoid protracted legal claims.

Posted by Beth Grimm at 6:07 AM

February 24, 2009

The Need for Security vs. The Desire for Privacy - Which Wins?

Security Cameras, Can They Be A Breach of Privacy?

Here is an interesting contradiction sent in by a reader:

"I am currently on the "Security Committee" of my Condo Association. We are in the process of looking for way to make the complex safer for those who live here. The conversations have taken a strange turn, however, with some in the committee suggesting that we install security cameras everywhere. This may make sense from one perspective, as we may be installing HOA-Owned Laundry Machines in the Laundry rooms, and we have had some vandalism in the Gym. However, they are also advancing the idea that the clubhouse should also be camera-equipped as well.

A lot of this concerns me, as I am a big advocate of privacy rights. I might understand if there was a practical reason to do so. But we have had no incidents of theft or vandalism in the Clubhouse. Moreover, members rent it to use, sign a contract, are issued a key, and are responsible for leaving it as they found it.

Is it an unreasonable expectation for Clubhouse renters to view this as a private space for their contracted time? And if this is even legal, what steps does the HOA need to take to alert the membership that virtually everything they do in the common areas will be filmed?.

In addition, they are advocating a website wherein all residents can log in and monitor the common areas.

I could find nothing in Davis Sterling that addresses this. I'm wondering if you could give me some ideas about where else to look."

There is nothing in the Davis Stirling Act about this. When a Condo Association (or HOA for that matter) is considering installing security cameras, it does have to consider these types of things though. I do not know of any California resource or case that gives a definitive answer about where the line is drawn on an issue like this that involves security vs. privacy issues. If the Board was considering viewing restricted common area or exclusive use common area, there would be a stronger argument that a breach of privacy would occur.

However, as to common area that is nonexclusive to all owners, what I can say with certainty is:

There is no expectation of privacy in the common areas; however, if the Board is considering installing security cameras at the least, I think that it ought to

Survey the owners to get their feedback on the locations and cost
Consider whether the area(s) in question is/are a problem area
If they are installed, make sure the owners/residents receive some kind of notice

As for having a website where all owners can view areas covered by the cameras, that is a bit cheeky. I do not believe it is illegal, but sounds a bit "voyeuristic" (is that a word?) . I think the better approach might be to have recordings made that could be viewed if there is a problem in any of the areas covered or have some plan for viewing by a security company or committee or some small audience that has a role to fulfill.

If anyone wants to weigh in, send an email.

Posted by Beth Grimm at 9:48 PM

February 13, 2009

Notice of HOA Meetings: 4 Days or 96 Hours - What Does it Mean?

What is the notice requirement for HOA open Board meetings in California? Boards must post notice or get it to homeowners (various forms allowed by Civil Code Section 1363.05 which you can look up on my webstite at http://www.californiacondoguru.com on the Resource Page/Davis Stirling Act) at least 4 days before the meeting.

So ... I have received two series of emails this week complaining because the Board in its posting fell short of 96 hrs. posted (for those of you slow on the uptake, 4X24=96).

One example was that the notice went up on the Common Area Board at 11am on Tuesday for a 1pm meeting on Friday. Thus, technically it was up there most of Tuesday, all of Wednesday, all of Thursday and more than 1/2 of Friday, not 96 hours, but arguably for the better of 4 days, not 4 - 24 hour days of course (but who has night vision???).

We could go round and round about this. If someone took this "egregious" error to court, I would hope the judge would say "Get a life." Of course, if there are other areas of abuse on the part of the Board that can be proved, that is a different story.

Posted by Beth Grimm at 1:38 PM

January 26, 2009

Smoking in HOAs - Is it a Fundamental Right?

Smoking, should we feel sorry for the smokers, or those who have to smell it?

Many want to know if HOAs can ban smoking in common areas, exclusive use common areas (like balconies and patios), or in units.

There are more decisions coming down all over the US on smoking, and the ones I have seen are not in favor of the smokers. There are more City ordinances banning smoking in public areas, office buildings, restaurants, bars and office buildings. So, should we feel sorry for the smokers?

I guess we should feel sorry for anyone that can't kick the addiction but luckily, the spreading interest in protecting the public from smokers helps some. I was a smoker years ago, I had a hard time stopping, but when the ban in California reached restaurants and office buildings, it became harder to smoke than to not.

Yes its hard to stop, but there is no civil liberty disturbed or fundamental right violated when smoking is banned. Smoking is harmful to the smoker's health, and those around the smoker. I have friends that smoke, but I can hardly spend time with them because they always have to go off and take a smoke break, and so I either sit alone in the restaurant or stand outside to talk to them, neither of which is pleasant. When I have friends over, the two smokers spend the evening outside off by themselves and everyone else hangs out and visits. I find myself spending less and less time with these friends. Besides the nuisance, I see them slowly killing themselves and each other with the double dose of smoking and inhaling the second hand smoke of the other.

So besides the health issues, it adversely affects friendships.

And as for banning smoking - we would not let people spray bug spray in our faces, should we let them blow smoke?

I usually try not to take sides on serious issues here in the blog, because I want to present both sides to the public, as an informational thing, and commonly look for balance, but on this one I am firmly on the side of the non-smokers, and so, I believe, is the law.

There are cases that support bans in the common areas, including exclusive use common areas. As for smoking in units, if it is happening and there is no reasonable way to block the transmission into neighboring units, I believe it clearly qualifies as a nuisance.

There is no fundamental right to smoke. And don't get me started on those stinky, offensive cigars.

Posted by Beth Grimm at 9:09 PM

December 14, 2008

MAY AN HOA BOARD OPEN A CREDIT CARD ... WHAT IF THEY TAKE THE STUFF?

Lots of HOAs have credit cards - and they use them to allow board members, maintenance personnel and landscape people, etc to purchase things for the HOA. Some HOAs purchase or pay for cell phone minutes so that Board members can communicate, in HOAs where the Board members do not live on site. A reader recently asked:

"Is it legal for an association to open a business credit card with Home Depot and not disclose it to the homeowners nor get board approval to do it? I just found out that historical data shows credit card receipts for thousands of dollars spent on equipment that the previous board did not hand down to the new board including the information that the credit card existed. Beyond closing the account how do we get all the materials back? There are things that may have been used for HOA business and for work around the complex. We are talking many items that I believe the former board members have in their houses. What can we do about it?

First of all, Boards can open credit cards or purchase phone cards or cell phone minutes for Board members so they can communicate with each other and management, if it is not convenient to meet on site because the board members are scattered. Purchasing a phone card for minutes is a way of controlling expenditures, and requiring disclosure of the phone calling records is sufficient for members to verify calls were made to each other. I do not know to what extent the phone cards or disposable phones allow records of numbers called, but if anyone does, let me know. Certainly, board members who have cell phone service can produce records to verify their calls.

And as for credit cards, there certainly should be a limit on the card. I would say for a small association $1000 or less would seem justified. For a large association, the limit could be higher. If the board reviews the statements each month, it can see where abuse might occur before it gets out of hand.

The same kind of or more controls should exist for the checkbook. There is probably more room for misuse or abuse in having check signing authority, even if limited by Board resolution. Many managers are not given check signing authority; many do not even want it. It would not be that difficult for a manager or board member planning to move to Mexico to write a check that exceeds authority, get it cashed and head out. The banks do not all flag large expenditures, nor do they verify every signature. Collecting from someone in Mexico is harder than someone down the street.

Now, for getting back items purchased "for the association". One option of course is for the board to send someone over to the homes to collect items purchased for HOA (Guido????). If board members say they do not have it, ask for a sworn statement to that effect (perjury is a crime and actionable offense). If they are not willing to sign such a statement, include their name in a complaint (small claims will probably work) to collect "lost" items. Filing a small claims complaint for the amount of damage suffered because of "disappearing HOA items" is one manner of recourse. You can spend more and seek attorney advice, but why do so if the amount is under $5000 (which is the limit for an HOA) or $7500 (which is the limit for an owner)?

[And I was not serious about "Guido" ... I do not want to see any broken knee-caps] ... It is, however, okay to send a party over to the former board members houses to "beg back the equipment" nicely. And it is okay to suggest that if it is not turned over voluntarily, that there might be need to file a small claim against the Board members for the losses. I believe such a claim could be brought by either an owner or the new board.

Posted by Beth Grimm at 11:19 AM

October 13, 2008

What Happens When The Board Becomes a NonFunctioning Entity?

That's a good question. Sometimes, nothing ..... for a long period of time, until the automatic pilot on the ship runs it aground, or into an iceberg. Then, the domino effect of problems begins. I received this email recently from a very frustrated reader, who is not alone:

"I'm a homeowner in planned development that is governed by a HOA. Apathy is rampant. We have no ARC at all, so one of the board members acts as the ARC. Our HOA is in danger of becoming a "non-functioning entity" and then the State will have to step in (and nobody wants that to happen--as you know, whenever the State of California steps in, it always costs somebody a ridiculous amount of money, and often a headache as well). I believe this will happen because the last two remaining board members have had enough abuse and say they are going to resign and it seems there's no one to step up and replace them. We will have no board. My question to you is, what exactly happens when an HOA becomes a non-functioning entity? Nobody on our board knows, and even the management company doesn't know."

Before getting into what happens when there is no board, so long as there remains one board member, although there is no quorum, that board member has the legal authority to appoint other board members. That said, if there are no board members, it may be a long time before anyone sees the result of that (or a short one), but once the signs begin, like ship without anyone at the helm, things start to go awry and the people trying to ride it out will start to feel the effects, some worse than others.

If there is no common area to be maintained, it provides the wayward ship a lot more open water to navigate (meaning it will take longer for the ship to run into trouble). However, these are the things that could happen.

There will be no one to collect and deposit the assessments, so no bills will be paid (that means no maintenance, landscaping, etc. which may or may not matter, depending on whether the HOA has any responsibilities in those areas). In a PD, there is less likelihood that there will be any lights turned out or water turned off, so the most likely problems to start to rear their ugly heads are the lack of architectural control or standards, and the lack of parking regulation.

You may first see little things crop up, like arbors, patio or yard extensions, grottos, garage conversions, larger vehicles in driveways, perhaps leading to commercial vehicles, larger commercial vehicles, boats, RVs, junkers, etc. Perhaps the residents will have problems with construction next door relating to views, setbacks, odd style of fencing, loss of harmony in home colors, roof covering materials, windows, driveway alterations (for more and more vehicles), changes in landscape, sometimes as bizarre as green cement lawns, etc. For some associations, this could take years, and for others, a matter of months. With no structure, no one in charge and no enforcement or simple rules, it is certainly possible that the neighborhoods could go "down hill". That can lead to neighbor infighting, deterioration of property values, and legal battles in some cases. The HOA presents a pretty sizable target.

The State will not come in and take over HOAs as a rule. In some very limited circumstances I believe that cities have taken over crime ridden neighborhoods and restructured them through redevelopment special projects; however, do not hope for, or hope against State takeover because that is not likely any kind of a viable solution.

An HOA may end up in receivership, where the court orders that a receiver take over, collect assessments, and fulfull the HOA obligations; however, this is not likely to resolve any of the disputes related to architectural debacles from failure of any reasonable controls. The Receiver commands a very large salary that must be paid, and he or she has unlimited assessment authority, so do not think you as homeowners are likely to end up paying less in such a situation.

If there is no one to pay the bills, there is no one to pay the Directors and Officers or other liability coverages and so if there is an accident in the development, or a loss in property values and an angry homeowner with money to sue, or any kind of a lawsuit against the HOA, the costs and damages can fall to the individual owners.

It's not a pretty picture to try and imagine. I believe it is more likely to happen with self-managed associations than those that are professionally managed. However, in the above scenario, it looks like management may not be able to save this association. Once the board members who sign the management checks are gone, the managers are usually gone. Of course, if management is authorized to sign their own checks, there may be an interest in continuing with collections of assessments and payment of [some] bills for awhile. But at some point, management will have to throw in the towel as without a board, there is no captain and that can lead to a sinking ship.

Posted by Beth Grimm at 5:27 PM

October 3, 2008

POLITICAL SIGNS - YAY ... OR NAY???

This came in via email recently (and no surprise, given the wild election times in US politics):

"Political Signs - my HOA won't let me have one, ... what do you have to say about that, Ms. Grimm!"

Here is what I say about it in my book, THE DAVIS STIRLING ACT IN PLAIN ENGLISH (available at http://www.californiacondoguru.com on the publications page):

The law in California:

1353.6. NONCOMMERCIAL SIGNS, POSTERS, FLAGS, OR BANNERS; PERMITTED PLACEMENT OF POSTING OR DISPLAY; EXCEPTIONS.

(a) The governing documents, including the operating rules, may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in an owner’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.

(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.

(c) An association may prohibit noncommercial signs and posters that are more than 9 square feet in size and noncommercial flags or banners that are more than 15 square feet in size.

My commentary about the history: "It was not surprising when this new law was approved by the Legislators effective in 2005 – what better way to insure the unfettered display of political signs. Concerns have arisen in some associations over the display of offensive signs that lead to fighting among neighbors (and discrimination claims). Disputes arise in this area as to whether allowing signs on outside walls is allowed in a condominium development when an Owner does not own or have exclusive use of the outside of the building. Legitimate concerns about damage to buildings arise with attachment of signs or banners. This section does not govern display of real estate signs or any commercial signs. Signs for selling or leasing property are required to be allowed (one sign of reasonable dimensions) on a Lot, in a window or in the exclusive use areas in a condo or townhouse, but legal counsel should be consulted if there is a disagreement about where a sign may be placed or how it may be displayed. For more on real estate signs, see Civil Code Sections 712 and 713 which are not part of the Davis Stirling Act."

So, political signs are non-commercial in variety, right? I have written before about, and am a believer in, reasonably allowing owners to express themselves, within the law and the bounds of reason. Some attorneys feel otherwise. It is possible some have seen HOAs suffer from displays of political support. Reasonable time, place and manner restrictions make sense. Such as
"Owners are allowed one sign per candidate or measure, and not more, so as to avoid clutter and distraction."
"Any political signs displayed in the units must be in the windows; no signs may be attached to the buildings as damages may occur."
"Political signs may be displayed no sooner than 1 month before the Election; however, they must be removed within 1 week after the election."
"Any political sign that contains wording other than "Vote", "Vote Yes", or "Vote No" and the candidate's name or Measure Number may be ordered removed, if the sign incites others or incites misconduct."
"Any sign blocking the clear view of an intersection must be removed immediately."
"The posting of any political sign that causes damage to the buildings or grounds may subject the owner of the Lot to a fine and/or maintenance or reimbursement assessment."

These are all examples or rules that I have seen whose viability depend on certain circumstances and my suggesting them does not bless them for all HOAs. However, I will make my message clear with regard to political signs, which is the same as I have taken for flags ... Boards ... find a way if you can, to reasonably allow and regulate the signs, adopt reasonable rules and circulate them to provide guidance to the owners (adhering of course to the law requiring a comment period before final adoption) because if you don't, the residents will take it upon themselves to set the standard for the community, which usually leads to overreaching, dissention, fighting, legal fees and unnecessary battles.

This election coming in November is subject to a heightened awareness in formerly disinterested neophytes, highly and serious emotional issues, and deep seeded patriotism. People are going to want to express themselves. If this energy is not let out with a sign on the lawn or in a window, or on a deck or balcony, it is likely to show up (or blow up) in the boardroom.

Posted by Beth Grimm at 1:45 PM

September 26, 2008

COMPLAINT ABOUT HOA BOARD MEMBERS - SHOULD WE?

Maybe you have faced this dilemma (from a reader):

"We are a very small association. Neighbors to a board member would like to file a complaint against that board member for various reasons. ... How can we do this without the involvement of the Board member who is the problem? We are afraid this board member will get special treatment and nothing will be resolved. We have discussed the complaints with this neighbor and written letters, but to no avail. The neighbor just doesn't care about being a considerate neighbor. We are all at a loss and are thinking the next step is to file a complaint with the HOA. Please let us know how to go about this since they are a member of the board."

Make the complaint. Put it in writing. Ask the Board to consider taking action under the HOA documents, The Board member involved should abstain from voting on any action that is proposed. If necessary, the other board members can consult with an attorney and exclude the board member being complained of from those discussions, The way to do this would be to form an executive committee to meet with an attorney. Otherwise, the Board member should be treated as any owner would who refuses to meet the Board's demands to comply with the HOA documents. The Board member could stop being a nuisance, or if that does not happen, would get a hearing notice and be invited to an executive session meeting with the board to have the complaints considered. At the hearing the Board would determine if disciplinary action is warranted. If the complainants want to attend the hearing, they can ask. Boards do not always ask the complainers to appear but some allow it, and some even encourage it.

Of course, the complainants may suspect the other board members are playing favorites if nuisance conduct is not abated or subjected to disciplinary actions. In that case, the complainants can always consult an attorney and ask for legal advice as individual members, or even try their luck on the nuisance aspect in small claims court. There is more information on this on my website at www.californiacondouru,com. Look for Articles, E-newsletters on remedies, and publications on the subject.

Board members should not be exempt from the same considerations given in non-board member complaints. HOAs should have processes and procedures in place to afford consistent treatment for all. There is a seres of Primers available covering Enforcement topics that would be helpful to anyone wishing to have more information on enforcing rules and CC&Rs, at a very affordable price on my website (mentioned above).

Posted by Beth Grimm at 3:55 PM

September 20, 2008

Security Lighting - How Important is It?

This question was passed to me at a seminar today and it is on an important topic.

"I am a single middle aged woman and live alone. The walkways leading to my unit are quite dark, and I feel that more lighting is needed. I do not feel safe at night walking to my unit. I have asked the Board to install more lighting in the common area by my unit, but they refuse, saying if they put it in for me, they will have to put it in for everyone. What is their responsibility?"

This scenario is very similar to one in a leading case in California, Frances T vs. Village Green. Its an older case decision that has withstood the test of time as binding authority. It was raised in the recent case Ritter vs. Churchill which is discussed in a recent blog, where the court pointed out that an HOA/Board can be responsible when safety issues are involved on the same plane as a landlord.

In the case (out of the Supreme Court of California), FRANCES T. v. VILLAGE GREEN OWNERS ASSOCIATION, Sept. 4, 1986, the condominium unit owner brought an action against the condominium owner's association and individual members of its board of directors for negligence, breach of contract and breach of fiduciary duty regarding quite serious injuries she sustained when she was attacked in her condominium unit.

The Court held (among other findings) that: "(1) plaintiff stated an actionable cause of negligence against association for its failure to provide adequate lighting in common areas; (2) plaintiff stated a cause of action for negligence against directors for their failure to take action to avoid harm and for taking actions contributing to risk of injury to residents."

Let this case be a lesson. In the case, the owner asked the Board to put up security lighting.The Board refused. The owner put up some lights and the Board "ordered her to remove them because they were placed in areas subject to association's exclusive authority. The owner was shortly thereafter the subject of a brutal act which which occurred in her unit.

The HOA and the directors were found culpable in Frances T. The court likened the duty of the Board to that of a landlord. Since there had been a burglary in the development, there was foreseeability that criminal activity might occur.

Although one would like to believe that Boards cannot be held responsible for criminal acts of third parties, or for preventing them, they are responsible for dealing reasonably with a safety issue or potential hazard, whatever that might be. They are not expected to hide in the bushes and ward off criminals, and probably are not required to hire and pay for security, but improving lighting in the common area to make residents feel more safe??? That does not seem like an unreasonable request. At the least, it may also help to prevent accidents.

That said, I must offer a cavaet. I would not profess to give legal advice to this association one way or the other, or say the Board is right or wrong, without knowing other pertinent factors such as - do other residents feel the same way? Is the person that is asking prone unnecessarily or unreasonably to fear? Is there existing lighting that the Board feels is adequate? Has there been any criminal activity reported in the neighborhood? Are there people hanging around that do not belong in the Association? Is it a long walk from the parking areas to the units? Are there lots of bushes where someone might be able to hide?

These are all pertinent questions that go directly to the issue of whether there is any "foreseeability" that there might be a crime if the area remains in its current "lit" (or "unlit" state? And they are important ones.

Posted by Beth Grimm at 7:05 PM

September 10, 2008

BOARD DECISIONS ON MAINTENANCE - AFTER RITTER V. CHURCHILL CONDO ASSN.

What Criteria is Important As Evidenced in Ritter vs. Churchill Condominium Association?

This recent appellate court decision in California raises some interesting quandaries and (unless appealed and some things change) for HOA Boards and HOA members.

(1) Is a Board safe when it acts on experts’ advice in any given situation, and there is no malice involved? (It would appear so, at least as it relates to personal individual liability).

(2) Is the HOA safe when the Board relies on experts’ advice in any given situation? (Not necessarily – if the decision of the Board is found to be harmful to members – or for that matter – residents, vendors, etc. as well as has been the experience in other serious cases.)

(3) Should all HOA board decisions be given the benefit of the doubt (effecting the “Business Judgment Rule” of deference to Board decisions) when being reviewed by a court? (The answer is “no”.)

In Lamden v. LaJolla Clubdominium, which is a leading case in California supporting the premise that courts should give HOA Board decisions on maintenance deference, the question was whether the Board’s determination on termite treatment should be upheld, when an owner sued to try and enforce a different treatment scheme that was more invasive (spot treatment vs. tenting remedies). In my view, and extremely simplified, the court essentially found that since the Board had a plan and relied on experts in formulating it, the court would not delve into whether the owner’s suggestion was a better plan.

The facts of Churchill have some very distinct differences, and although the court found that the individual board members should not have liability for the decision, the HOA should be required to do some things as demanded by the owners. In other words, the directors were not personally liable for failure to resolve a slab penetration issue, but the HOA as an entity was and would have to resolve the slab penetration issue, at least as to the owners who sued (two separate Ritter individuals).

There was language in Churchill tying in consideration of whether the Board/HOA had the same or similar duties as a landlord would have to maintain the property in a way that did not allow for a hazardous condition or safety issue. The main focus of the Churchill case was from the corporate board perspective, in the context of determining whether it was a contradiction in terms that the board members could be cleared but the HOA could not – and whether the Board’s decision about the slab penetration issue should be given deference. However, slipped in was discussion of the Frances T. case of years ago, establishing liability for HOAs/Boards for failure to take measures that would enhance the safety of residents, and that is a distinction from the Lamden case. In Lamden, owners’ health and safety was not an issue. In Churchill, health, safety, City Code requirements, and quiet enjoyment of property were all issues.

In a nutshell, the HOA was hurt in the first place when, during construction, an important aspect (that was a Code requirement) was missed. Slab penetrations created for pipes and wires should have been properly filled and were not. This fact was missed by the City inspectors who issued permits. That left the HOA in a vulnerable position – fill after the fact, or not. The Ritters raised complaints of odors and smoke invading their units, because of these slab penetrations. The Ritters did some remodeling to their units and they made some changes recommended as a possible means of resolving the problem. The work they did did not solve the problem. Both parties consulted with experts who proposed fixes. The Ritters wanted the HOA to take responsibility to fill the slab penetrations, and the HOA thought the Ritters should have done so when doing their remodeling. The HOA took action to order them to do so, and impose daily fines when they did not. The whole thing ended up in this litigation.

I felt very much like the court was leaning more toward Frances T than Lamden and a landlord’s duty more than that of a corporate board. It seemed to me that the court had determined the owners needed some protection since the HOA had not taken responsibility in the situation. It does not surprise me really that the court found that the HOA could carry some responsibility to remedy a situation even if the Board was not negligent making the management decisions.

What I see as important distinctions between Lamden v. La Jolla Clubdominium and Ritter v Churchill are: safety issues, an identified fire danger issue, and nuisance in penetration of smoking odors, slab penetration filling originally required by city codes (even though overlooked by inspectors), and, I believe the court took offense that the HOA relied too heavily on Lamden by seeking protection for their decision not to repair vs. how to repair.

And last but not least, this decision is not too overly surprising given that the appeals court decision in Lamden (which was overturned the Supreme Court of California) favored court scrutiny and consideration of a Board’s decision regarding maintenance to determine if it was reasonable.

This case may or may not be appealed. One can certainly can understand reluctance of any HOA to appeal such a decision given the reality of facing half a million in an attorneys’ fees award against them (meaning having to pay the other side’s attorney’s fees in addition to their own).

Hindsight is clearer than foresight, of course, and this Board should not be condemned as it did what would be expected, consulted with experts and listened to their advice. However, what can and should be taken away from this case decision, as it stands, is that there is likely a distinction between the way courts analyze decisions of corporate boards when health and safety of people are at stake.

Another thing to take away is that wafting smoke can turn a molehill into a mountain, so do not take it lightly!

Posted by Beth Grimm at 10:01 AM

August 30, 2008

PRIVATE INFORMATION, WHY CAN THEY HAVE MINE? AND NOT GIVE THEIRS?

Few people these days want to give out personal information. It is no different in HOAs. For California HOAs, the Board does have access to names and addresses of owners and they get this information through whatever proof of ownership a new owner provides.

So what are owners to do if the Board asks for telephone numbers and email addresses? Owners do not have to give this information - there is no law. However, if the HOA is attempting to set up a telephone or email communication line, or emergency telephone tree for calling residents in the event of an emergency, it becomes impossible if owners are not willing to provide direct contact information for themselves or their tenants. So, when the "big one" happens, do not be surprised if you do not get a call.

Some HOAs encourage owners to communicate and email is a common form, perhaps more common these days than by phone. This can be good, and this can be bad. If a board does not have the sense to ask owners if they want their phone numbers or email addresses distributed to other owners or residents ... BEFORE THEY DO IT. it can lead to complaints, even possibly serious charges.

And then there are the owners who may resent having to give this information, or who are okay with the Board having it but not okay distributing it to others. But do they bother to tell the Board? Not usually. People presume all kinds of things, such as "everyone else must think like me and can read my mind, so they will know what uses should be made of the information and what limitations should be placed on its distribution." A BIG NOT ...... who can read anyone else's mind? Both sides should be clear about what the expectations are in giving this information out.

And, some owners get mad when the Board does not reciprocate with its own information, A reader recently lamented that the Board should be called to the carpet because although it (the Board) had asked for and published the owners telephone numbers and emails, the directors were unwilling to give their own telephone numbers and emails out.

Well, as usual, there are two sides to this point. If the Board members have been harassed at home, bothered with excessive emails, or felt that they were unable to separate their home life with the association business, it might be understandable, right? After all, the board members are volunteers, and people can get unreasonably demanding or pesky. Am I right?

So what should happen, you ask. Here is what I think.

If you want more informatioon on what California law requires, take a look at the explanations on my website at http://www.californiacondoguru.com on the main page with a link to AB 1098 - Records Inspections Law. If you want to look up the statute, then go to the Resources page on that website and click on THE DAVIS STIRLING ACT, and pull up statute Civil Code 1365.2, and read it.

Short of doing that work, if you want the answers,

The Board should ask for owners contact information, so they can be contacted in the event of an emergency. But the Board should also ask if they want their phone numbers and email addresses published so other owners can communicate with them. If they say no, then the Board should heed that. The Board should also ask of they want to "opt out" of having their name and address provided at an owner's request. If an owner says yes, the Board should heed that.

However, this does not mean that owners can avoid ever hearing from neighbors. Per California law, if an owner asks for information on members so he or she can communicate with fellow members or residents, the Board is required (unless an alternative is offered) to release the names and addresses of owners and their voting rights, BUT NOT THEIR TELEPHONE NUMBERS OR EMAIL ADDRESSES! Thus, the Board may be called on the carpet for giving out this personal information. In fact Boards should really be asking owners if they want to opt out of having their names and addresses provided to members. This is because if an owner asks for information on other owners, the Board should not be providing information for owners who have "opted out"? But how will the owners know they can do this unless the Board tells them?

As parting thoughts, if a Board offers an alternative means of communicating with owners, when an owner wants to do that, it can avoid giving out the membership list altogether - by offering the owner who wants to communicate with other members the option of preparing their communication, and having it sent out by the Board (or as many Boards use, a mailing house that gets the owners' labels, slaps them on the envelope, and sends out the communication).

The bottom line is that a member in an HOA has a right to communicate with other members in California, so long as they ask in writing and state their purpose in wanting the membership list. And the Board can offer an alternative - which embodies mailing out the owners communication - at their expense.

Last, but not least, if the Board distributes personal information about an owner which it is not by law required to do, it may find itself facing a breach of privacy or other type of legal claim. In these days of identify theft, that can become a BIG DEAL, so JUST SAY NO - and do not do it!!

Posted by Beth Grimm at 4:21 PM

August 21, 2008

FINES - AN ILLUSORY REMEDY FOR HOAs?

"Illusory" - it means maybe-not-real (although you won't find that definition in the dictionary). The question is: are fines really a viable remedy for HOAs? What if people do not pay them. Ho hum. If had a nickel for everytime that I heard a board member say: "Why fine, they don't pay them. It does no good." I'd be pretty well-to-do.

Read on to see why fining as a means of enforcement may be underrated. First, there are some pertinent questions asked by a reader that I would like to try and answer.

"My name is _________ and I live in a condo in _______________. We have several owners that have been fined over the years for non compliance of thee Association rules. Everything from parking, to disarray of their property. We have issued citations to these owners, but have not been able to collect on these fines. My question is how or can we collect on these outstanding debts? Because of the large number of foreclosures in our complex, collecting these fines would help out a lot."

Can you relate? HOAs are having a tougher time than ever, admittedly. And collection of fines would be nice and helpful. However, if one looks to it as a means of funding the association coffers in any meaningful way, one might be discouraged. Lesson 1: The real purpose of fines is to serve as a deterrent, not a funding source for the HOA. Obviously here, the idea did not work very well. If many fines have been imposed, and none paid, it sounds like it is time to get more assertive, if even more to "send a message" than to "relieve" a budget crisis.

So, as would logically follow, here is more from the same reader:

"Next and last two questions is, where can one go onto the web to locate California laws dealing with condos, and if it is possible to collect these fines, would a lawyer be more appropriate dealing with these collections?"

One can go to the California state website at www.ca.gov and navigate to California Codes - start at Civil Code Section 1351 and end at CC 1378. Or, as a not-so-tedious track, one can go to my website at http://www.californiacondoguru.com and navigate to the resource page (enter the site, click past the acknowledgement, go through the gates of the "First Time Visitor" and check out the left hand bar) and click in THE DAVIS STIRLING ACT and you will see the codes and the titles of each section, You can click on any statute and pull it up. Even even better, one can go to my website and find a book entitled THE DAVIS STIRLING ACT IN PLAIN ENGLISH as well as many other very helpful publications, at very affordable costs.

As to whether a lawyer can be helpful, a lawyer with the right kind of knowledge and experience can

1. Help set up a legal fines policy and make sure that the HOA is taking proper steps before imposing fines.
2. Write letters to owners who are not in compliance and demand compliance and payment of any fines imposed.
3. Take the HOA through the Court process to collect fines.
4. Help the HOA understand how to prepare a small claims case.

#2 and #3 may be overkill unless you are talking about thousands of dollars in fines. #1 is just a good precaution. And #4 can be helpful. The consideration of course is how much the board wants to spend on an attorney to help collect fines. It is possible that Small Claims Court could prove to be a viable remedy, Getting a good policy in place, following through with a proper hearing process (which should be part of the policy) and getting legally grounded fines is the most important thing. A Board can appoint a Board member to do the leg work, get the forms, fill them out, file and attend, if it can find a board member willing to do the work. Attorneys are not even allowed in small claims court unless they are a party to the action. Claims can be made for $5000 for the first two actions in a year (so do the big ones first!), and after that, claims are limited to $2500. These are California limits for HOAs. The limits for owners claims are higher.

The biggest judgment I ever heard of relating to fines was in a Santa Barbara case where a the court upheld $277,000 in daily fines for noncompliance. The name of the case is Hope Ranch Park Association v. William Hargar dba Mariposa Land Development Co.. Mr. Harger and his land development company were fined for making substantial changes to a 37 acre estate without approval. The attorney for the HOA said: "Mariposa did what it wanted... when it wanted." and "Mariposa is a poster child for the rationale behind monetary penalties."

It seems the judge may have agreed. There is a lot more to the story of course, and maybe in this case, the influx of judgment money in that capacity might help the budget, however, most HOAs do not have to resort to that level of fines to get the owners' attemtion.

But follow through does make sense. Fines that are legally imposed are often collected via small claims court hearings. Even if the full fine is not imposed there, some HOAs have had luck with the judge or hearing officer chiding the owner and letting them know they had better fix the problem or risk coming back imposition of a big fine. Some fines are collected when property is refinanced or sold. Boards can notify any potential purchaser of the fines by providing copies of the communications to the selling owners demanding payment, and noting any noncompliance issues. Some fines stay on the books for a long time, and most owners do not like this. They begin to feel uncomfortable eventually and try to take a stand. Some fines get resolved simply through perseverence. All fines should be supported by a fair hearing process, so that the owner has a chance to rebut any charges. I would wager that taking fines into court to collect without having offered the owner good solid notice and a chance to avoid the fine could spell trouble for the HOA's chances of success. A poor showing of the accounting that supports the fines could spell trouble as well. Disorganization, personalized retorts and anything other than business-like behavior in court could hurt the HOA. But a case that is justified, well-prepared and well-presented is more likely than not destined to be a successful one.

Last but not least, there is an entire set of Primers available on my website on the subject of Enforcment, including fines as a remedy. You are not without power to collect fines! And even so, if you have good policies at the outset outlining disciplinary actions that may be imposed for violations of the Association's documents and rules, and if you circulate information about those remedies and procedures, you will deter more misconduct than you will ever know about.

Posted by Beth Grimm at 8:45 PM

August 2, 2008

HARDWOOD FLOORS - CREATING A NIGHTMARE ALL OVER CALIFORNIA

This subject crosses over into so many areas in HOAs that I just added it to several categories: enforcement, neighbor-to-neighbor issues, board frustration, owner frustration, legal issues, general CID issues, etc., etc. Here are a bunch of sorry stories sent to me via email and notice the twists:

FROM BOARD MEMBER/OWNER: I am the _________of the ________HOA in _______. A couple years ago we changed our 20 year policy against hardwood floors when one of the owners agreed to install sound-dampening underlayment and get signed “approval” (something akin to a memo of understanding?) that they were OK with the installation. The then-seated board bought into this and now it’s the policy under our architectural guidelines. Now all downstairs units who go to sell after signing the form approving upstairs hard surface flooring have to disclose that agreement to prospective buyers. Personally, I would NEVER sign such an agreement for my upstairs neighbor, but I wonder if she’d sue me for refusing to sign it and thereby not letting her increase the (perceived) value of her unit? It seems like anything is possible in lawsuitland.

This angers me to some extent because I bought a second floor unit (rather than my preferred upstairs choice) because at the time of my purchase the old “no hard surface flor in upstairs units” policy was in effect. Since I wanted hardwood, I had to buy downstairs. Ugh."

UNFORTUNATE DOWNSTAIRS OWNER: I live in the lower unit a condo complex, it's and very small (16 units) and very old building (built in 1950) a few months ago the unit above me was sold and before the new owner moved in she had the carpet removed and the original wood floors refinished....I'm going crazy, I've dealt with it this long because the owner lives alone and I console myself with the fact that she has no children or pets but even with just one person creating the noise it's still a huge problem, she keeps odd hours a frankly the lack of a buffer makes the sound of everything she does travel right into my home. I know she didn't consult the board before doing this because I'm on the three person board, but I also know that our Rules and Regulations don't anything with regards to flooring, only that no noise from one unit should be heard in another unit. I'm worried about how this will affect my property value or ability to rent the unit, especially if she sells or rents to people who do have children or pets.

OWNER LIVING UPSTAIRS THAT CONVERTED TO HARDWOOD FLOORING AND HAD CHANGE IN FAMILY CIRCUMSTANCES: We had our laminate flooring installed over a year ago. We asked our neighbor if he/she had any noise issue and he/she said no. Then our circumstances changed. We [had a baby, got a dog, had a relative(s) move in temporarily, got a new stereo system, a large plasma TV, new speakers, etc.]. The neighbor started complaining about the noise."

The notes go on to say that these writers had obtained architectural approval and that the underlayment that was presented to the Board/ACCs was considered sufficient. And so these owners want to know what they can/should do about the complaints. Two of the writers are selling, and have their properties in escrow, and want to know what to do about disclosures.

The following additional questions were asked:

"Do we have to get acoustical testing done if [the Board/Neighbor] asks for it?"

"If the [Board/Neighbor] decides to sue us for nuisance, would he/she have a case?"

"If the neighbor had complained about the noise earlier we could have [asked the contractor to fix the problem/added some padding or changed the accoustics], but now, we do not know what to do."

"Our board has been notified about the problem - [we] do not know if they will get involved with this issue."

ANOTHER UNFORTUNATE OWNER LIVING BELOW UNIT THAT CONVERTED TO HARD SURFACE FLOORING: I am the original owner of a condo flat that I purchased 15 years ago. Way back then the original builder wisely did not allow hard surfacing flooring in the above units because of the noise level. It was for this reason that I bought the lower unit and I have been happy ever since.

In September of 2007 the unit above me changed hands. It turns out the buyers wanted to put in hardwood floors. The selling real-estate agent (who happens to sit on the board) consulted the CC&Rs and told the buyers that there was nothing stating that hardwood floors were not allowed in the upper units and further that it wasn't even necessary to apply to the Architectural Review Committee (ARC) to make this improvement. For this reason, the buyer simply bought the unit and then removed the original flooring and put in hardwood everywhere.

Needless to say, this has created a tremendous nuisance of noise in my condo. Several months back I complained to the board. The board responded by telling me was no violation of any process or rule by the installation of the hard surface flooring above and that there is nothing I can do.

I've read the language of the CC&Rs concerning improvements and it clearly states that all Improvements that are affixed to the common building must first be approved by the Architectural Review Committee. When I raised the point with the board that the owners did not go to the ARC process, I was told that after launching my complaint, the ARC reviewed the materials used for the floor and that the ARC would have approved the work anyway so it would not have made a difference if they had gone through the normal process in advance.

In summary, a board member has profited from the sale of a unit that required the rules be bent, the board and the ARC have done nothing to enforce their rules, the members of the ARC know nothing of the original builders restrictions on hard surface flooring nor do they know anything about sound level guidelines etc.

This leaves the ball in my court. I have given my contact info to the owners upstairs but they won't get in touch with me. I suspect they don't want to since they believe they have nothing to gain as they have already installed the floor. The board and the ARC really want to sweep the issue under the rug I'm guessing because they don't want any trouble for themselves.

I wonder if there are any building codes, nuisance laws etc. that may protect me in this case? Is there any California condo law that states the noise level cannot change following installation of new improvements in a neighboring unit? Is the ARC required to inform neighboring units when improvements are seeking approval in another unit? I really think if I can show the new owners/board/ARC that they have violated some rule or process that would allow legal action to be taken, they might do something to remedy the situation.

****
So, here are some key questions that I have answered before, and will answer again:
I wonder if there are any building codes, nuisance laws etc. that may protect me in this case? Is there any California condo law that states the noise level cannot change following installation of new improvements in a neighboring unit? Is the ARC required to inform neighboring units when improvements are seeking approval in another unit?

With regard to any given flooring-noise related issue that is brought to my attention, I cannot of course say unequivocally one party [among whom might be the board, the upstairs neighbor, or the downstairs neighbor] is right or wrong, or would win in court if suing or being sued. All I can do is set out a sense of what questions might arise and let the parties or their attorneys have some criteria to consider. The bottom line is that the courts are not really very good at solving these issues unless there is a clear cut "wrong" that can be identified, and in some cases, there is not. I have heard from readers who want to sue, and also readers who have sued or been sued and ended up in court spending a lot of money without getting a satisfactory result. So, I recommend the best course of action is to get all of the possibly culpable parties to the table with a good "neutral" party, possibly a mediator or facilitator of some kind - to see if there is any possible resolution short of ending up in court. If you have been reading my blogs on this subject, you will in fact have seen suggestions for EVERYONE involved, whether the victim of the noise or the perpetrator, or the Board of the HOA. Without reiterating every blog, I will go back over the basics.

1. It is my belief that hard surface flooring added in second story units causes many problems, if not on one day or with one set of residents upstairs and downstairs, then in the future with changes in lifestyles/residents.

2. There are certain questions to ask when reviewing these types of issues with the view toward either "presenting" incentives to get the people to the table, or toward taking legal action. These questions include the following: (certainly there may be more in any given situtation but these are the basic starting point):

Is this a pre-existing condition or did something change, i.e., flooring, neighbors, change in family circumstances, residents (number or age), and if there was a change that is now creating a problem, will it be remedied any time soon?

Did you do anything to cause or exacerbate the noise issue(s)?

Did you do anything to mitigate or minimize the problems or condition leading to the problems?

Did any of the parties violate the governing documents in their actions?

Was there any requirement or duty to make disclosures?

If so, were those disclosures made to the right party?

Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?

Liability depends on facts and circumstances. Did any party have a duty to the other party? Yes, that of a reasonable, prudent person.

Did any party breach that duty to the other person? That is determined by the facts.

If so, did that breach cause the damages or pain and suffering, nuisance, etc.?

And finally, this is a key question that demands honesty:

Are you just part of the problem, or also part of the solution?

If any of the parties can prove the answer to be "yes" to these questions, there may be a case looming in your future.

Possible causes of action include: nuisance damages under the law for public nuisance and any document provisions prohibiting nuisances (yes, even if permission is given for the alteration).

Possible action for breach of fiduciary duty on the part of the board, the architectural committee, or even the developer, if any contributed to the cause of the nuisance by ignoring, refusing to honor, or leaving out architectural review provisions that allowed one party's actions to destroy the quiet enjoyment of the other party or made their home unmarketable or life intolerable.

Possible action for breach of prudent person duty against neighbor who puts modifications into play that destroy one's peace and quiet and make a home unmarketable.

Possible action for breach of fiduciary duty on the part of an HOA board that fails to enforce documents or reasonable standards in those documents.

Possible action for breach of fiduciary duty for inconsistent treatment of owners with regard to flooring alteration matters.

And probably a whole lot more ...

Take heart. These are serious issues. Do not set processes in motion (or lack thereof) that fail to recognize alterations to hard surface flooring in second story units can ruin people's lives. And even in a case where many problems already exist, and parties feel they are at the end of their respective ropes, there are usually additional things that can be done that they did not think of (some are noted in earlier blogs).

Property values are an important subject, of course, but come on ... peace of mind, restraint, understanding, compromise, and human compassion should be more important. Unless a building is CONSTRUCTED in a manner that focusses on eliminating noise between units, alteration of it in any manner that increases noise transmission ranges from risky to downright irresponsible.

This is such a common subject of my blogs, writings, and the emails I get that I have not only written articles and spoken on the subject throughout the Bay Area and some outer reaches, I have developed several publications with further information on the topic. If you check the publications page, you will see several items which include, but are not limited to, the following, that pertain in part or in whole to this topic and other nuisance situations:

BOOK: THE CONDO OWNERS ANSWER BOOK
PRIMERS:

***4 ON ENFORCEMENT INCLUDING ONE THAT FOCUSES SPECIFICALLY ON DIFFICULT NEIGHBOR-TO-NEIGHBOR ISSUES LIKE THIS ONE
***4 ON ARCHITECTURAL CONTROL THAT FOCUS SPECIFICALLY ON ALL MATTERS RELATED TO ARCHITECTURAL APPROVAL, THE PROCESS, PROBLEMS AND FORMS, ac-2 BEING THE ONE MOST TOPICAL AS TO HARD SURFACE FLOORING ISSUES
***E-NEWSLETTER ARTICLES - AVAILABLE IN ARCHIVED FORM - ON THE SUBJECT

These helpful items are available at a very low cost, given the amount of information contained within ... take a peek..... visit THE GURU (at http://www.californiacondoguru.com.

Posted by Beth Grimm at 1:45 PM

July 19, 2008

One Remedy For Really Bad Neighbors - Sue the B _ _ _ _ _ _ _ _ _s!

Gosh, I do not generally recommend suing anyone except as a last resort. However, many boards and many owners are at the ends of their rope! The economy certainly takes its toll on the average citizen in more ways than even imaginable. Through the trickle down effect of foreclosures, lost jobs, higher costs in gas, utilities and even groceries, things get left undone, and people resort to "other means" of making money. The neighborhoods are at risk!

So what do I mean by Sue the B _ _ _ _ _ _ _ _ _s?

I am not recommending paying an attorney bizillions of dollars to sue in "big court". There is another option in many cases. I have spoken about it before. If you believe that there is such a nuisance, eyesore, bad element hanging out, possible criminal (drug, prostitute, or otherwise) activity going on next door, and you have some proof (pictures are worth a thousand words), consider this possibility.

Neighbors can sue neighbors in small claims court for up to $7500. Boards can sue individuals or even corporate or trust owners in small claims court for $5,000. Boards and owners can sue the persons or banks that take property back or buy it through foreclosure sales and do not fix it up. There is a cavaet on the amount. Iif two other small claims complaints are filed by the person suing within the same year, the amount requested drops to $2500. These are California figures.

Small claims court is especially designed for people and businesses to seek resolutions to their legal complaints in the form of money.

Nuisance that comes in all forms. If you have read earlier blogs or articles on my website (http://www.californiacondoguru.com) about dealing with abusive and nasty neighbors, and criminal activity in the neighborhood, you will find remedies including the one I am speaking about here. More recently, I have been writing about abandoned property, dilapidated, ugly and responsible for bringing down the neighboring property values.

You don't have to hire an expensive attorney to sue and try to prove the lowered value (which is a real uphill battle these days anyway simply because of the subprime mortgage crisis and hurting economy. You, your family, your neighbors, your HOA, and anyone who is affected by the dilapidated property can head on down to the local county small claims court offices and pick up a complaint form. All you have to do is list all owners as defendants. That can be the tricky part, but once determined, one family of 7 can file 7 complaints, seeking $7500 each. 10 neighbors can file 10 complaints each, seeking $7500. The HOA Board can file a complaint seeking $5000 in damages. You can all work together or separately.

This should get the owners attention.

There are other things you should know, and this is an area in which attorneys can provide expertise (providing advice about what to do if this .... or what to do if that happens ...., etc. And the small claims courts have advisors that give guidance on the process itself (not legal advice, but guidance on the process) for free.

What are you waiting for? Just a suggestion. Don't expect big bucks unless the complaint is served properly and the defendant is a "no show", and write a letter BEFORE filing the complaint with your demands.

This is simply one of the tools in my toolbox that I offer to owners in distress, who cannot afford attorneys, and HOAs that are frustrated, concerned, and suffering a tight budget because of all the extra costs and losses these days, and it may or may not work. I have seen it work. There are ways it can backfire, in certain situations.

And be advised that if you go into small claims un- or ill-prepared, be prepared to lose. There must be some believable evidence to present. Just saying it is so does not often convince a judge or hearing officer that it is.

Posted by Beth Grimm at 11:27 AM

July 14, 2008

WHO DO THEY THINK THEY ARE - TELLING ME WHAT TO TAKE DOWN?

Sometimes one wonders all of the whys and the wherefores. Especially when they hear only one side of the story.

Here is a recent post from a reader (and see my answer in italics following the questions):

"There is an enclosed balcony in my condo with two open air windows. The
space was unusable due to high winds and salt off the sea. So I built very tasteful clear vinyl wind blocks so I could use the space, very similar to blinds, but clear. I thought this was okay.

Earlier, I had met with the owners of the condo and mentioned I was thinking of putting up something there to block the wind. They said they thought if I didn't put up a big sign with a slogan on it or something that it would be ok.

Within a very short time after putting up the wind blocks, I got a letter from the management company saying the wind blocks violate hoa rules andt they tell me they need to be taken down right away.

Do I have to comply even though I did not enter into a contract with the hoa? If I don't take them down, and there are fines against the owners, willm y rental insurance pay for it? The rental insurance includes legal fees if I am sued.

If I leave them up temporarily or permanently, can you see what problems that might cause?"

First of all, I would be asking the question: If the windblocks are clear and cannot be seen without close scrutiny, why object to their presence? It seems obvious in areas by the coast or otherwise subject to high winds that windbreaks are often needed to allow people to fully enjoy the outdoor spaces adjacent to their living units. One sees them everywhere. Just take a walk along the coast in Carmel or Monterey.

I can understand if the Board would be concerned about deteriorating, scratched or discolored windbreaks or mismatched or patchwork styling, but standards can be adopted for consistency and windbreaks that become a hazard or eyesore can be ordered removed or replaced, with penalties for failure to do so. So I invite the readers to tell me what a good reason is to disallow windbreaks in a situation like this (so I can be informed).

That said, the Condo Board does have the legal authority to set and enforce rules and the rules are presumed reasonable and enforceable unless an owner can (essentially) prove they are against the good of or harmful to the community as a whole (in very loosely paraphrased legal terms). That is a tough burden to meet.

Any disciplinary action would normally be rendered against an owner for a renter's conduct (or misconduct, violation of the rules and regulations, etc.) so it is up to an owner to deal with a tenant who creates a situation where penalties are being considered. Of course, a landlord owner can write into their lease (and should, for their own protection), that if the renter violates the rules or regulations of the Condo Association and there are any penalties involved, the renter has to reimburse the owner, and can (and definitely should) include a clause that says if a renter violates the rules and regulations, that is grounds for the owner to terminate the lease. That probably does not sound helpful to this renter who asked the questions, but it is the way it should be.

Now, for the questions about what can happen if a violation continues.
If the documents allow, and California law has been followed with regard to the processes required, fines might be imposed. If the Condo Board has to get legal assistance and the documents allow, and California law has been followed with regard to the processes required, reimbursement assessments might be imposed. The latter, if unpaid, could lead to liens and such, and possibly even foreclosure, so the penalties can be severe.

I wonder if this renter is not telling me something, like any reason given by the Condo Board for not allowing windbreaks. I wonder if you out there can tell me why a Board would not look for some options in this regard to offer owners (at their own expense) in properties subject to high winds?????

I feel the need to be enlightened on this one.

As to renter's insurance, it is very important to have. However, I do not know of any that pays for fines or legal defense for taking action that one knows is likely to lead to fines or legal action.

Posted by Beth Grimm at 10:26 PM

July 7, 2008

MORE ON PARKING - WHAT RULES ARE RIGHT?

I like it when people email me their questions and concerns. It gives me the perspective of both sides. There would be fewer disputes in the HOA world if people could see clearly in all directions, and have some understanding and compassion for others in their own actions, whether a director or a homeowner or anyone else.

Here is the latest comment on parking:

"There was some good reading on your blog about condo community parking (where, how, ethics, etc.), so I thought it would be helpful if you could provide information about what HOA's can't do as far parking rules. In my community, they banned all residents from parking anywhere but their garages. I understand that residents cannot park in the visitor parking places, but they banned the street as well. This makes myself as well as many others upset mostly because we have tandem 2-car garages (one car in front of the other). So its nice to be able to use the street to park the car in front temporarily while we use the car in the back of our garage. So while there is no other parking literally for miles, I guess my question is: Can they banish residents to only use their garage for parking and not provide any other places at all?"

They can, and do. HOA Boards that have to deal with a lack of adequate and convenient parking have to do something to control parking, or it can easily get out of hand. Of course there are boards and board members that abuse power, and I believe it is fair to acknowledge that.

However, the problem above started with tandem parking. Whoever invented that? Of course its inconvenient. And it causes all kinds of problems. Why have it? ... So more can be crammed into a smaller area, obviously, which means more bang for the buck for the persons who created the "footprint" and plan for the development.

Who pays? The citizen who buys there. Is that fair? Did you not think of the ramifications when purchasing?? I am guessing not. So whose fault is it? Who should pay?

If the HOA lets people park on the street temporarily, people will park on the street permanently, and if there are set hours, people will move their cars every so many hours. If a lot of people park on the street, a lot more will start parking on the street. People will think since there is plenty of street parking, its okay to have extra cars. I can almost guarantee that will happen over time. And HOAs that did not start controls early in the game, which left open the door to parking expectations, can develop big problems. And those problems become the owners problems. Bumper to bumper street parking has occurred in many HOAs where parking is limited - and especially where tandem garages were implemented to save space.

That said, the HOA gets its authority for parking and other rules from the governing documents. If the documents say that the streets may be used for parking or that the open parking spaces are restricted to non-exclusive use, then the documents control what can be put into rules on those points and the HOA Board should not adopt rules that conflict with the language.
If, however, the documents say that the Board can adopt rules related to parking in the development, then that controls over what the owners might want.

That's the best answer I can give you. My experieince is that Boards that come to me for advice generally tend not to adopt overly restrictive rules until there is a good reason. In some cases, I may be the culprit by suggesting more rules than they have, simply because I have seen many times what a lack of restrictions in the areas of people, pets and parking can lead to over time.

I would be surprised if anyone got "nailed" for parking on the street just long enough to move cars around in the garage, but if someone wants to run off to the store, the movies, or the park, while parking the car that is usually used more often on the street, then I assume there could be ramifications for that .... and right or wrong, you out there can be the judge of that. I imagine your sympathies will come down on the side of whichever problem you face ... wanting to park your car on the street at times for convenience ... vs. having to look at and maneuver through a crowded "parking lot" on your street every day.

Posted by Beth Grimm at 11:04 AM

June 12, 2008

DO DAY SLEEPERS HAVE RIGHTS?

A reader recently asked me a simple question: "Do Condo-Owner's who work Night Shifts & sleep in the daytime have any right to peace & quiet?"

The answer is yes, reasonable rights, which is what everyone has. In order to find someone legally liable, you have to prove certain things. Every person has an innate duty to act as a "reasonable", or for the legal world "prudent", person would act. What you have to prove to whomever is listening (judge, board, small claims court hearing officer, etc.) is that the person who is giving you grief breached that duty (failed to honor it basically) and that that breach caused you damage in some way (property, health, etc.). In the HOA enforcement world, you have to prove that they created a nuisance in most cases.

So, if you are a day sleeper and your neighbor is not, who wins? No one if there is a fight over wanting silence during the day. The neighbor probably says "you're crazy, I have 3 kids and you expect me to keep them quiet?" And you say, "If I can't sleep I will lose my job."

There certainly is a lot of ground for compromise here, but absent a willingness to do so, day sleepers and daytime noisy people can come to blows. And of course, I have a story on it, so watch for the next blog which I will call: "There is no such thing as a slam dunk!"

Posted by Beth Grimm at 10:56 AM

June 7, 2008

LEASE LIMITATION PROVISIONS - ARE THEY GOOD?

I have done 3 other posts that touch on the subject of Lease Limitation provisions. Based on my research, and experience, I think it time to provide some simple explanations about what they mean. A lease limitation provision might be based on any of the following ideas (or maybe someone out there has something more creative to offer:

Limit on number of units/lots that can be leased at one time.
Limit on leasing for the first year, two, or three after purchase.
Limit on term of lease, for example – one year minimum.

The thinking behind these restrictions is that the properties will not invite investor purchasers but rather would be enticing to persons intending to reside in the property who are interested in a community with limits on leasing. Resident owners that plan to continue to reside in the property like this idea very much. Resident owners that tend to “move up” in the coming years and want to keep and rent their properties out would not be so fond of the idea that they could be prevented from doing so. Investors and leasing owners would not like the idea at all.

The simple truth that many people believe and experience is that high percentage rental communities tend to have many more problems than lower percentage rental communities. Way back in 1985, the last time I know of that any study was done, the California Department of Real Estate commissioned a study and that is what the study showed. So I am not the only one that believes this, no sir.

Another simple truth is that it is harder to get conventional financing for properties in common interest developments because the largest purchasers of residential loans in the country – namely FNMA and FHLMC (more commonly known as Fannie Mae and Freddie Mac – sounds like something right out of the Flintstones) have limits on purchasing loans in high percentage rental communities. So, if your HOA is over 30-40% rentals, and it becomes especially apparent if it gets over 50% rentals, the financing gets tougher to find, through conventional methods at least. However, see below for more on this in today’s market place.

Another simple truth is that renters are generally more transient than residents. Of course I know there will be those that will come out of the woodwork to let me know they have been darn good renters for more than 30 years! But, get real people, the transient part of society tends to have less interest in taking care of the real estate they occupy for temporary purposes than the buyer who has crossed the line into property ownership and has pride in that “piece of dirt”.

Another simple truth is that investors often have different interests than residents. While some investors take great pride in every piece of property they own, others are only interested in the bottom line – how much rent can they pull in – how little can they spend.

Another simple truth is that the provision when it is posed to the members (it should be in the CC&R or recorded regulatory documents ... as opposed to just passing a rule)could “grandfather all owners” in the development at the time the measure is passed, which would put everyone in the development at that time on the “same plane” and alleviate the second two arguments above that owners who want to rent their properties and investors which would mean they would never be prevented from leasing their property. [There are pros and cons to that which have been and will be further explained in communications on this subject written by me.]

And the last, but perhaps hardest bit of truth, is that while the leasing limitation provisions do help keep or lower the percentage of renters in any community, they still can “bite” the innocent. What about the person that thought the restriction was great, until their life circumstances changed, they needed to move away temporarily or permanently, the market went south (what a concept, huh?), and they could not afford to “give away” their property in a bad market.

And, there is a wide range of enforcement tactics out there; some communities are very lax in enforcement since they do not want to enforce such harsh provisions on their neighbors, others are militaristic in their enforcement. The laxity can lead to legal issues, and the militaristic view can do the same.

In order to make a lease limitation restriction fair, reasonable, and able to pass court scrutiny, I believe (and again, this is based on my reading of the cases all around the country and in California), there has to be some kind of hardship provision. This means that if someone is called off to war, and they are going to be doing a duty tour, they should be able to temporarily lease their property during that time! If someone has a medical disaster – either them or a family member – and they need to be somewhere else for a period of time, they should be able to temporarily lease their property during that time! There are those who would disagree even with that. And, of course, there are those that might “embellish” or make up such a story when the Board members know it to be less than true.

And why would an investor vote for such an amendment? So long as they, at least are grandfathered (which wise at the least if an HOA does not want to get into the argument that has occurred in some state cases where the court recognized that such owners may have a “vested interest”), then it is possible that under such an amendment, rentals by others would be on the decrease and the property values could appreciate considerably. I believe this is especially true in a higher percentage rental development where sales are affected by the lack of available financing. It may take longer to get the percentage down, but to many, at least the development would be headed in the right direction.

So, although we know that these provisions can help dramatically in lowering rentals in a common interest development, we know there are pros and cons to them. We do not know for sure where the law is going on these. There have been some Superior Court decisions in the past couple years in Santa Barbara and further south that have upheld lease limitations. More will be reported on these as the time for appeals and any appeals have run. There is also a statute that has been introduced in California that would place some restrictions on enforcing the restrictions.

Please – if you want more information on this – continue to follow this blog (aka California Condo & HOA blog and Beth’s Blog) at http://www.californiacondoguru.com and also sign up for the free E-newsletters from that site. Watch for future Primers on the topic (helpful learning tools available on the website). I will be circulating the next E-News soon, so sign up soon! The Primers, when completed, are inexpensive and helpful.

There is so much to be done to get the word out. People do not seem to fully understand the benefits and the drawbacks and the only way to do that is to follow the articles and posts. Boards often, believing that these restrictions are for the benefit of the community and will sail through, put a ballot out only to be blasted by those who are either uneducated about the provisions, or have the “King of the Castle” mentality. In other words, they have not prepared the membership and it comes back to stifle the process.

Posted by Beth Grimm at 12:57 PM

June 2, 2008

Take It To The Judge - What Can He or She Do With An Assessment Request

People often ask what the court can do if an HOA or Owner takes a dispute to court. Basically, a judge can make orders to do something or stop doing something, and can make an order interpreting what documents say. However, in order to make an order, even the Judge has to have some legal authority to do it. Here is a question from a reader asking what a Judge can do with a request to approve an increased assessment plan:

"Our HOA just took a vote for assessments for unit painting. The ballot asked for a graduated increase in assessments for reserve funds over the next 7 years. Some houses are two story and some are one story. The CC&Rs required 75% of all units voting positive to change to graduated assessments. Every unit had to vote. A non vote counted as a no on the issue. It did not pass. The Association board is now going to a Judge to ask for a rulling to change to vote to a positive because they want a 50% plus one to make it pass. This is without going through the process of changing the CC&Rs to get what they want. Will this work for them? Can a Judge over rule CC&R requirements and change an election? Can those of us who appose this get our say with the Judge? Do we have to hire a lawyer? The Board is currently using the Association lawyer at all of our expense."

There are a lot of questions here and giving specific answers would require a lot of presumptions about the representations made. I did not review this HOA's documents and am not providing legal advice, but will pull out what I can answer in a generic form:

May a Judge order an increase in assessments in an attempt to sufficiently fund reserves over a period of time for a specific HOA project, when the measure presented to the Owners does not pass?

A Judge could approve an assessment imposed without homeowner approval if the use for the money qualified as an emergency assessment per Civil Code Section 1366. Emergency assessments are those that do not require HO approval and that are imposed to deal with safety and hazard issues, and maintenance items that need to be addressed but which could not be foreseen, but this situation does not seem to fall into that category as the plan is for 7 years of graduated assessments. Other than that, it seems to me that the law leaves it up to owners to approve assessments and not the court. Civil Code Section 1366 says that boards can increase assessments up to 20% a year and/or impose a special assessment that does not exceed 5% of the budgeted gross operating expenses of the association without membership approval. And if the assessments exceed these limits, homeowner approval is required. The statute says that approval of a majority of a quorum is sufficient for the assessment that requires a vote. If the vote is not legally approved by members, then I would be surprised if a judge attempted to overrule the majority will on that. And IF there was a requirement of a higher percentage for approval to fund reserves or adopt a different reserve plan, I believe a judge would be even more disinclined to overrule the documents.

If by "graduated" assessments the implication is increasing assessments that would exceed the Board's authority - then the above discussion would apply. If by "graduated" assessments the reader means changing from equal to pro rata assessments based on size of unit, or the reverse, (am wondering if that is why the one-story two-story reference is raised), then it would take a document amendment to do that, for sure. Many documents do require 75% approval to amend CC&Rs. It's a high percentage and so the legislature has offered a solution when an HOA cannot achieve that high of a supermajority to amend the CC&Rs. Civil Code Section 1356 allows an HOA to go into court and ask a Judge to approve the amendment if the HOA can show that it made diligent attempts to get members to vote, could not get the higher majority, and that at least, more than half of the association members did approve the amendment.

If such a petition is filed with the court, the members who wish to can oppose, but this is a court proceeding and going in without an attorney is a daunting task. There are many procedural rules.

I hope that this information helps this reader and others concerned about what the court can do with requests to raise money through assessments and to amend the governing documents.

Posted by Beth Grimm at 8:40 PM

May 12, 2008

MORE ON FLOORS - WHAT IF YOU LIVE UPSTAIRS?

More about condo flooring/noise issues: what if you are the neighbor who lives upstairs with the down stairs neighbor complaining of noise.

These problems are not easy to solve. A couple of readers' notes have been combined in this series of questions:

"We had our laminate flooring installed over a year ago. We asked our neighbor if he/she had any noise issue and he/she said no. Then our circumstances changed. We [had a baby, got a dog, had a relative(s) move in temporarily, got a new stereo system, a large plasma TV, new speakers, etc.]. The neighbor started complaining about the noise."

The notes go on to say that these writers had obtained architectural approval and that the underlayment that was presented to the Board/ACCs was considered sufficient. And so these owners want to know what they can/should do about the complaints. Two of the writers are selling, and have their properties in escrow, and want to know what to do about disclosures.

The following additional questions were asked:

"Do we have to get acoustical testing done if [the Board/Neighbor] asks for it?"

"If the [Board/Neighbor] decides to sue us for nuisance, would he/she have a case?"

"If the neighbor had complained about the noise earlier we could have [asked the contractor to fix the problem/added some padding or changed the accoustics], but now, we do not know what to do."

"Our board has been notified about the problem - [we] do not know if they will get involved with this issue."

With regard to any given flooring-noise related issue that is brought to my attention, I cannot of course say unequivocally one party [among whom might be the board, the upstairs neighbor, or the downstairs neighbor] is right or wrong, or would win in court if suing or being sued. All I can do is set out a sense of what questions might arise and let the parties or their attorneys have some criteria to consider. The bottom line is that the courts are not really very good at solving these issues unless there is a clear cut "wrong" that can be identified, and in many cases, there is not. I have heard from readers who want to sue, and also readers who have sued or been sued and ended up in court spending a lot of money without getting a satisfactory result.

So here are what I believe are some key questions to consider:

Is this a pre-existing condition or did something change, i.e., flooring, neighbors, change in family circumstances, residents (number or age), and if there was a change that is now creating a problem, will it be remedied any time soon?

Are you just the problem, or also part of the solution?

Did you do anything to cause or exacerbate the noise issue(s)?

Did you do anything to mitigate or minimize the problems or condition leading to the problems?

Did any of the parties violate the governing documents in their actions?

Was there any requirement or duty to make disclosures?

If so, were those disclosures made to the right party?

Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?

Liability depends on facts and circumstances. Does any party have a duty to the other party? [HINT: Generallly, the parties have a basic duty toward others to act as a reasonable, prudent person. Boards have a higher duty because of their "fiduciary" capacity which means they have some control over owner's assets. Developers have more specialized knowledge which might suggest they have a higher duty as well. By "higher" duty, I mean may have to be more careful, do more investigation, perhaps consult experts, etc., which is "higher" than having to just act reasonably.]

Did any party breach its duty to the other person? That is determined by the facts.

If so, did that breach cause the damages or pain and suffering, nuisance, etc.?

If any of the parties can prove the answer to be "yes" to any of these questions, they may have a case.

In the above examples, there are some things the upper floor owners can do - and maybe should do. After all, it may be incumbent on them to alter the situation, since it is their circumstances which changed after approval had been given for the floors and it was those changes that lead to complaints from a resident living below who had not earlier complained about the flooring. Getting ACC approval does not insure that owners will never have to answer to anyone if a nuisance situation develops.

So the upstairs owners might add some padded runners in the traffic areas, turn down the noisy speakers or TV, place padding under the new surround sound speakers, take the kids out as much as possible or set up their toys in the least offensive (with regard to the noise transmission) room, buy quieter toys or engage the kids in thinking or board games instead of in house running, jumping or throwing things.

Generally, each party can do SOMETHING to alleviate the "noisy" nuisance. Standing firm on principle (such as "I have approval for the floors", or "The neighbor did not complain before", or "We have a right to a quiet home all hours of the day", or "They did not even ask for approval for the floors") rarely leads to resolution of the problems. And unresolved, they tend to escalate into neighbor-to-neighbor battles, unrest in the home, and disclosure issues.

[Of course, I may be able to offer more insightful information and suggestions if I knew more about a situation and if any reader wants more specific information as to what they might or should do in their particular situation. A paid consultation can be arranged. Just go to http://www.californiacondoguru.com and look for the consultation form.

Posted by Beth Grimm at 9:06 PM

May 3, 2008

So Many Questions -So Little Time - About Making An Impact in Your HOA

I am so backed up right now with many, many good questions. I would like to quit everything else I am doing for a week and answer them all, but like taking a cup of water out of a bucket, it would hardly make a dent. However, I notice that a lot of the questions have a common theme - How does one make an impact in the HOA when they do not like the way things are going. I get questions from board members, owners, and relatives of owners and have been on a kick lately to let readers know -

There are lots of questions ...
My time is limited ...
There are lots of resources that are untapped (even on my website)...
There are processes that work.

Check out two of the latest blogs for courses of action to make a difference, to change something, to stop something, etc. Of course, if the pragmatic diligent courses of action do not work, there is always an option to sue. I very rarely recommend that course of action because it can be slow, frustrating, expensive, and downright offensive to the parties. Readers often want to go there first, until I tell them the cost can could exceed the equity in their home if it is a particularly fractious issue. I do not even need to know what the equity is - its just a way of getting things into perspective. That tends to help people get real, and if it really works, it gets them into proactive mode - determined to make a difference on their own.

I can dispose of many questions asked recently with this one blog, because of the common thread. Here are the questions. You can probably recognize the commonality even though the subjects seem unrelated:

Pool: "Workorders [in our HOA] are totally neglected unless of course it’s a board member. They are not doing their job...SAFETY AND CODE violations have been neglected for years ... at this complex. Myself and my roommate are owners so we have two owners ... even the mailman will testify the place appears to be going down... the HOA has failed this community. Do you have any advice for us?"

Trees: "Our Board has arranged to have several trees removed from our small community. Many owners are up in arms! The Board members seem to be focused on views although they protect themselves by saying its to prevent fires. They seem to be forgetting about aesthetics, shade, landscape design, wind protection, beauty in nature, and other methods of fire protection. Our HOA will go from a place of beauty to a place of ugly soon, if something is not done. What can we do?

Use of Pesticides: "I own a town home. I’ve brought up to the property manager my concern over pesticides that are sprayed on the premises. I provided the Board information from an article stating how dangerous and highly toxic these chemicals are especially to the small children on the property and especially now that they are spending more time outside as it is warmer. Pretty much I feel like I’m being ignored. Any solutions?"

Want More Info: "What should ones course of action be if they believe that certain longtime HOA bored members are not being forthright or honest with the members ? Once a year we get a statement and thats it. They do not even try to enlighten us with monthly minutes. Is almost like they do not want us to know what is going on. The last annual statement included a finacial forecast for 30 YEARS OUT. That hardly seems realistic! Thank you in advance for any insight you may offer."

Want Action: "What recourse does a homeowner have if the Association Board takes over 4 months to deal with a simple rule infraction by a tenant? I have been trying to get my neighbor to remove her filing cabinets and 5 gallon water bottles from the front hall since Thanksgiving to no avail. All the Board says is: Have patience. "

Audit: "Me and some of the neighbors think the board and management are pilfering funds and misspending HOA money. We cannot get the Board to do an audit (duh). They say "it is too expensive" and "there is nothing that requires us to do one." What can we do?"

If you want some very practical ways of dealing with questions, concerns and issues like those noted above from readers, check out the two recent blogs: How To Communicate Concerns in Your HOA and What Can You Do If Your HOA Board is Out of Control? . Check out the inexpensive books and publications on the website. If you believe you need more specific information, or need to go a step further, but don't know what that step might be, look for the consultation form on the website at www.californiacondoguru.com. I will make myself available for a telephone consultation if there is no conflict of interest, at my hourly rate (one hour minimum). I need to form to determine whether there is a conflict of interest (I need to know who the parties are and what the problem is in a few words).

And watch this blog for more ...

Posted by Beth Grimm at 2:32 PM

April 15, 2008

What Can You Do If Your HOA Board is Out of Control?

My Board is Out of Control - Is it time for action? What Can I do?

If the board is not responsive to your “ideas”, you may want to try and enlist the support of other owners. There is sometimes “power in numbers”. In California, there are laws regulating condominiums that allow homeowner members to have access to the membership list, and if not that, provide a means for owners to address other members through mailings sent out by the association board, staff, or management. It is never a good idea to stomp through the neighborhoods with vitriolic leaflets expressing your disdain. You may find yourself with followers if you take out a negative message about the board or management, but they may not be the kind of followers that can help you garner respect for your cause.

Here are some things to consider:

**Contact other owners and see if you can get others involved. Sometimes gathering support for a position or demand can prod the Board into action. If you try, and are still the only owner concerned, you have a real uphill battle to get the board’s attention focused on your issues.

**Run for the Board. Sometimes you can get on the Board simply by asking - especially if there is not a full board or someone has just quit or moved. Then you will know why/whether/what is happening.

**Put your request in writing and try again to get neighbors to sign on with you in your presentation. A written message engenders more accountability than a frustrated telephone call or “attack” whenever you run into a board member out walking the complex or swimming at the pool.

**Sometimes (although do not do this without considerable thought) you might just decide – “to heck with it, I am going to just repair whatever it is that needs fixing (if that is the crux of your complaint) and then seeking reimbursement from the board. You have to be careful here. It make sense to test this action on a small scale meaning at a cost less than what you can ask for in small claims court. It is possible that you may not recover compensation. Worse yet, you may be penalized for taking whatever action it is you believe is warranted, so it is best obviously to get legal advice first to see if your "beef" is legitimate.

These and other suggestions appear in my book THE CONDO ANSWER BOOK, available through my website at http://www.californiacondoguru.com

Posted by Beth Grimm at 10:13 PM

How To Communicate Concerns in Your HOA

Ranting, Raving, Cussing, Threatening, Yelling ... are these ways to get attention? Yes they are. But are they the way to get the right kind of attention? The answer is "no". If you want to get the right kind of attention to your concerns in your HOA, try a balanced written communication. Take advice from my recently released book THE CONDO ANSWER BOOK which can be purchased through my website at http://www.californiacondoguru.com. A lot of people write to me and want some "inexpensive advice." I guess it is time to start talking about a helpful resource close to my heart. Here is a passage from the book with helpful advice.

"Showing interest by attending meetings would seem to be the best place to start developing a relationship with the board. Providing questions, concerns or demands in writing may be the method most likely to engender a response and deserved accountability, especially if a board does not appear to be responsive. It is harder to ignore the piece of paper than a face-to-face request which can be dismissed with an: 'I will look into it.'

A written presentation serves several valuable purposes:

[*] It Tends to Illustrate A More “Thoughtful” Approach. A writing tends to force 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.

[*] It More Likely Assures Delivery of An Accurate Message. A writing gives the recipient of the message 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 re-paraphrasing which often leads to an incorrect message, and which also often gets sprinkled with personal "flavor" as it is passed along.

[*] A Pragmatic Written Presentation of Materials Avoids Idiocy in Delivery (Usually). 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 or lost. 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 a strike against your cause if your demands erupt into a non-cohesive rant or something more. The board will give the message less credibility - the directors may not even finish listening or reading the message if it is offensive in nature. Dissatisfaction, complaints and discrepancies can be noted in a non-confrontational nature. Even better, if you can offer possible solutions to the problems raised, your message may even receive praise, accolades, or a “thank you”.

[*] A Written Message Gives The Recipient a Better Opportunity to Fully “Digest” the Message. Confronting board members with a complicated message given orally may cause a good portion of the message to be lost. The method of delivery plays a large part, but human capacity (or lack thereof) causes part of every message to be lost in translation. If a board member has anything else on their mind when you approach them (a very likely scenario), your message will not receive undivided attention.

[*] Creation of a (Good) 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.

[*] 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.

One cannot stress too much the importance of a good, solid written paper trail. It is hard to ignore if matters escalate to needing a third party intervention - like court - to get relief to demands that are made and ignored. Hearing officers even in small claims court, should matters "escalate" to this step, will often ask the party with the demands if they have presented them to the other side in writing, before coming to court. Some small claims judges will not entertain a claim if no written demand was presented before filing the complaint that started the proceeding. 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 have it, and how urgent it is that you have it including what losses you have incurred because you did not get it."

Take my word for it, a well written, well researched presentation is likely to get a better result than an "attack" on the only people that can help, i.e., the Board.

Posted by Beth Grimm at 10:02 PM

March 25, 2008

Do You Need An Attorney For Noise Issues?

Here I am on the noise kick again. This question is asked of me about every other week.

"Can you please recommend an attorney that is willing to represent a homeowner? I am getting close to exhausting my avenues of getting noise problems resolved."

People get to the end of their rope and think an attorney can solve their problems. What (unforetunately) often happens is that the person that is suffering then ends of suffering from two ills: foottfall noise from the unit above and a cash flow problem. Why? It is difficult to get satisfaction unless there is a clear violation of some kind to pursue. What can happen is that both sides of the dispute make what sound like reasonable arguments about what is right and what is wrong.

Here are the most common complaints:

**A toddler or toddlers running, jumping, playing with toys, dropping objects, etc. creating noise magnified by hard surface floors.
**A lack of rules in the HOA prohibiting hard surface floor coverings in second-floor condos.
**A lack of oversight by HOA architectural committee concerning sound-reducing materials or carpet.
**Neighbors exercising their "right" to have hardwood floors.
**Lack of awareness of the extent of the noise at time of purchase because unit above was equipped with padding and carpeting.
**Denial of responsibility by upstairs owners to install any sound-reduction materials or to mitigate noise in any way.
**Denial of HOA to do anything, claiming the problem to be "one between neighbors and none of their affair".
**A claim that the upstairs neighbors have a right to "decorate" their unit as they wish, under the CC&R's.

In some cases, the downstairs owners have even gone so far as to volunteer to pay a portion of reasonable costs of carpeting and the upstairs neighbors will not even talk to them about the possibilities. Some owners resist carpeting stating that they have allergies. (A suggestion of cork flooring in traffic areas may not have been discussed or considered.)

I have suggested in past blogs to try and engage the other side in a mediation to discuss the mitigation possibilities. I have talked about the availability of low to no cost mediation services. Of course, if a person simply cannot get the parties (other owner, possibly association), to come to the table, there is another possibility that does not cost an arm and a leg.

I do not recommend this option as a first step, but it may be an alternative to giving up because you cannot afford an attorney. There are public and private nuisance laws. Most governing documents have a prohibition on unreasonable noise. The Civil Code (in California) has a nuisance law. A person can file a small claims court case for about $25, pay about $20 per party to have it served, and (in California) ask for up to $7500 in damages for nuisance. This is a place where one could "test their theory" that the noise above is unreasonable, because of conditions create by the neighbors.

I do not think any judge or hearing officer would award damages just because of kid or family noise during the daytime; however, I do believe it is possible to get the right kind of attention from a hearing officer or judge who believes that the failure to mitigate the noise in any way, shape or form and the failure of any party to even consider mediation are grounds for either some award of damages, or at the least, a warning to the upstairs neighbors to take some kind of reasonable steps to mitigate the noise (or risk having to come back to the court and answer for not doing so).

On the other hand, if you take your "case" to small claims court and do not have a reasonable position to present, you can expect to be disappointed.

For more on noise and other difficult issues, check out my new book recently released (THE CONDOMINIUM OWNERS ANSWER BOOK) at http://www.californiacondoguru.com - navigate to the "publications page".

Posted by Beth Grimm at 7:43 PM

February 20, 2008

More on Noise - Can a Developer Be Held Responsible?

Just today, during my HOACHAT at noon on issues including noise and hard surface floors (which is a free offering you can join on Wednesdays through my website at http://www.californiacondoguru.com) one of the "attendees" asked: "Can a developer have responsibility when there are noise issues through the walls and floors of a condo?

Noise is a problem in many stacked and wall-to-wall condos. Sometimes alternations and modifications are made by owners in condos that were not meant for hard surface floors. But that is for another blog.

Sometimes a developer will tell you that space is left between the walls of the adjoining condos and that reduces the noise (well, sometimes they will say it eliminates noise transmission but I think that anyone - including me - that has lived in such a condo situation and fell for that line knows better). Sometimes the developer will say, "Sure choosing the laminate flooring upgrade is fine because we add soundproofing," and you think - "Great!" ... And you buy, ... and then experience - "not so great results." I wrote an earlier blog suggesting that the extra money developers collect for installing laminate or hardwood floors in stacked units or townhouses should be placed into a fund to be used later to mediate flooring noise issues. Maybe this sounded like a "flip" comment, but ... why not?

And the answer of course is "Yes", a developer can have some responsibility. And that is apparently what happened in a Colorado case back in 2005. The case took place in Arapahoe County Colorado and it is reported that some of the residents were awarded punitive damages against the developer (as much as $150,000 each, plus costs of trial) and others settled with the developer before the matter came to trial. The owners' attorney's name as reported is David TeSelle. The articles say that the developer had to outfit units with soundproofing materials

I am not representing that this case controls anything in the legal arena, and there is always more to anything than meets the eye. If there were lots of big cases granting damages for noise pollution, builders and architects would have moved noise control to the top of the list of concerns. It does not appear to me that this has occurred, because the noise complaints continue to rage all around the state and in fact, in the nation. I have not located appellate level cases on this subject but feel free to send me some if you read this and know of some so I can add them to my musings.

But I am saying take heart, anyone can be sued for anything, and (hopefully) in matters that escalate to litigation, the culbable party or parties will be "outed" and have to compensate those that are wronged or taken advantage of. I am a California attorney and do not know Colorado law, or the particulars in the Arapahoe County case; however, further research could be done if one wanted to find out more.

My point in discussing this case and this topic is to say that developers need to get on board. And owners need to speak up, to the developer, to the homeowners association, and to each other, if there are noise issues in your building (unless, of course, you want to "move out quietly").

If you visit http://rismedia.com you can find an article about buyers and sellers combatting noise issues, and the gist of the article is that condo builders and architects should take heed. Certain building design and construction is critical if one wants to seriously reduce or eliminate noise transmission between the units.

The article says that while developers or architects might at first refuse to make noise isolation issues a priority because of the cost, they may come to their senses the next time around and spend the money, if they are plagued with complaints from the residents of a building they were responsible for. The article acknowledges that "Quiet does not happen by accident, it has to be engineered ..." and suggests that when you are thinking of buying a condo, it makes sense to set up a sound test, like making sure the neighboring toilets are flushed, the jacuzzi tub next door is filled (and I assume the jets are turned on), the neighbors walk around in their usual foot attire, and run televisions and sound systems.

Nice thought, but it could certainly slow down sales, in more ways than one, especially if potential buyers are given access to current resident neighbors. Short of such a comprehensive test, I think it wise to make sure you have the opportunity to go into a unit during the day, and at night as well, that is next door to a condo with active kids, even if it is not the one you are slated to buy. There is a probably a very good reason that "models" are often built close together and often isolated from the "inhabited" condos or townhouses.

Is it fair to expect a noise-pollution free environment in a condo or townhome? Maybe, if you are willing to pay a premium for it, but in most cases, probably not. But it should be fair to expect that you will not hear the neighbors whispering, talking at low volume, getting a drink of water, having sex, watching TV at a reasonable volume level. If you want more protection, ask developers about the construction of the walls, floors, and ceiling, and whether there is any vibration reducing construction, and write it down, and then talk to an accoustic specialist. This bit of information might help you if you want some more comprehensive research before buying. And accoustics specialists can also be located on the web.

Noise isolation and control may be moving up the priority list of amenities, and well it should. New technology encourages wall mounted window sized TVs, and surround sound systems.

Noise disputes are never easily resolvable, and they make people do things they would not otherwise ever consider doing! And worst of all, they make people sick! If you do not believe me, visit http://newscientist.com and read the articles including one entitled "Hidden Harm from Noise Pollution". In the article which appears in issue 2365 of the New Science magazine, December 22, 2007, the article claims: "Noise kills in much the same way as chronic stress does, by causing an accumulation of stress hormones, inflammation and changes in body chemistry that eventually lead to problems such as impaired blood circulation and heart attacks."

Now, don't get me wrong because while I am saying that noise pollution or transmission disturbances in condos and townhomes can be insidious and must be taken seriously, I also believe that all parties should work toward resolving the issues by means other than litigation. Just because there is noise, and just because it is disturbing, that does not mean there will be big bucks in your future. Visit earlier blogs to help sort out how culpability might be determined, and do not expect that this will be the last blog on the subject.

Posted by Beth Grimm at 8:54 PM

February 14, 2008

STOP THAT INFERNAL WALKING!

This is my 301st blog! Thought it worthy of some unusual step. Since I have on my plate neighbor to neighbor issues today, I decided to give neighbors their own category on this blog.

So, to kick off this special day, I have more to offer in the way of determining fault, options (or lack thereof) and solutions (to the extent there are any) on issues noise related - namely, to hard surface flooring. By the way, if any of you out there are claiming that you cannot live below carpetted-properly padded unstairs rooms, consider yourself lucky, because there is a whole world of unhappy owners out there living under hard surface flooring, and its getting worse every day because there are more and more and .... (well,. this seems a good place to stop with the madness).

So here is the latest that has come to my attention. Different sources sent me an article entitled "The Case of the Upstairs Condominium" apparently written by a flooring person or an attorney, I am not sure which. None of the parties identified the source of the article (naughty naughty) so I do not know who to thank (except if your initials are DLW give me a call or an email and identify yourself, and I will give you full credit). You may be asking me what a flooring person and an attorney could have in common. The article said that the person had received several calls in recent months from homeowners and homeowner association boards about noise issues related to hard surface flooring. That could be a flooring person or an attorney, right?

Anyway, to get to the point, the article talked about a "test" that can be performed to test "the level of noise transmitted through the assembly ..." of a sound level meter. It takes a specially trained accoustics specialist to read the noise from upstairs created by a specialized piece of equipment called "a tapping machine". This machine, according to the article, imitates the impact on the upstairs floor created by a person walking. The measurement from this test can be expressed as a single number that is called "Impact Insulation Class". According to the article (and by referring to it, I guess I cannot be "blamed" by anyone if this is incorrect information), California's "Title 24 Standards require that floor/ceiling separation assemblies between units in miltifamily developments achieve an 'IIC' rating of not less than 45 when field tested."

So I will add this to my list of considerations published earlier, when one is considering what to do about a noise problem related to hard surface flooring, which (now) is reiterated in a (new) list of questions to ask. As for the HOA, the developer, the flooring installer, or any other party that might be confronted with a noise-flooring issue here are some pertinent questions to ask:

**Is this a pre-existing condition or did something change, i.e., flooring, neighbors, change in family circumstances, residents (number or age), and if there was a change that is now creating a problem, will it be remedied any time soon?
**Are you just the problem, or also part of the solution?
**Did you do anything to cause or exacerbate the noise issue(s)?
**Did you do anything to mitigate or minimize the problems or condition leading to the problems?
**Did any of the parties violate the governing documents in their actions?
**Has anyone arranged for an "IIC" or other flooring impact analysis test to be done?
**Was there any requirement or duty to make disclosures?
**If so, were those disclosures made to the right party?
**Are there any viable solutions that do not involve expecting the impossible, such as moving when economics or life logistics do not allow it?

I cannot say that this "IIC" test will make or break any situation. First of all, I do not know if it is well recognized in the industry and by the courts (feel free to send me info on this). And, I do not believe it is necessarily the end of the inquiry. As described, it presents a test with a minimum standard, and I for one believe that the standards for condos should be higher than apartments because if someone does not like the upstairs noise in an apartment, they can move. They have little to lose. When one purchases a condo, the solution is much more complicated. If they remain quiet, they risk having a disclosure issue come up after sale. If they make noise, they risk creating an issue where one might not be there for the next person. Believe me, peoples' tolerance levels seem to be all over the map - and when "friends" live upstairs, people are much more tolerant than if they have nothing in common with the upstairs neighbors.

But, the saga continues. And I will continue to say that if attorneys continue to tell developers not to put limitations on hard surface flooring un upper stacked units, and attorneys continue to tell HOAs not to put stringent limitations and standards on the installation of hard surface flooring, and owners continue to be discourteous (like placing speakers on hardwood floors and turning up the base, like refusing to try any form of carpet or padded runners in traffic areas, like giving the neighbor who complains the finger instead of listening to what they have to say), the problems will not go away.

Of course, before condemning attorneys, I should say that the attorney does not make the ultimate decision on what goes into the governing document or the rules or standards. The developers and HOA boards do that. In every set of docs I have written in the past 20 years (ugh, has it been that long) that involves stacked units, I have advised boards to put some limitations or restrictions on hard surface flooring in the upper units. More than half, probably more than 90% (I lost count) have heeded my words and done it, but those that rejected my suggestion either could not fathom that it could ever raise an issue, have put property values ahead of human values, or have had or were considering converting to hardwood or laminate floors. Had they put limitations on the flooring, at least, if the HOA did not want to spend the money to sue someone who installed hard surface floors without getting approval, the neighbor below would have a potential remedy for the violation of the documents. However, this sometimes falls on deaf ears.

It seems simple to me. If there is a prohibition on installing hard surface flooring in upstairs units, or there are standards involving installation of cork or some good form of padding below the new floor, or developers go the extra mile to add good and true soundproofing materials below hard surface or laminate flooring, it eliminates a major problem. That problem is the awful situation that occurs when the parties might otherwise be willing to resolve the issues but are left looking at major reconstruction (raising other potentially serious issues) involving both the upstairs and downstairs units as the only remedy.

People. Wake up!

Posted by Beth Grimm at 11:18 AM

January 29, 2008

NEW HOA AGENDA BILL - DOES IT LIMIT HOMEOWNER FORUM?

I have been writing about Owner frustration more than Board frustration because weighing the incoming emails, more HOs seem to be willing to write about it than Boards. And, there is this, the issues raised are worthy of a blog.

Here is the latest question, and it came in context from an Owner who mentioned the new Agenda law, so I am wondering if the boards and/or attorneys are using the new Agenda law to try and control Homeowner Forum content. This was the question:

Can the Board force homeowners to submit in writing before the Board Meeting starts items the owners wish to discuss during the open forum?

My answer: I do not see anything in the new law that allows this Boards to limit subject matter in the comment time. The board can let a homeowner say what they want to, and move on, using the new agenda law to say that no action can be taken on the homeowner comment, which may be a better approach than trying to say a homeowner may not talk about his or her issues or concerns. If a member raises an issue and the Board cannot talk about it, then another option for the Board is to ask the member to submit their request in writing, but to require them to submit their subject before the homeowner forum occurs, that does not feel right to me. It smacks of the possibility that the Board may misuse that information.

[I wrote the above and the prior two sentences before I heard from some Board members as to their purpose for asking about subject matter, so I have a different perspective now, and refer you to my March 8, '08 blog on the subject. My view has changed but I wanted to leave this blog in tact so you could see how more information often turns the conversation around in discussing what is reasonable and what is not. So I suggest reading this older blog with the understanding that I might have just erased it and no one would then get the real picture of how asking a simple question - like "why do you want to know what subject we are going to address" might have resolved this difference of opinion.]

Perhaps the Board's intentions are based on a misunderstanding of the new law. If the Board is receiving legal advice, that assumption may be a stretch to find good where other motives may be lurking. It seems likely to me that in some cases the intent might be to (1) make it harder for members to address the board, (2) get an opportunity to object or stop someone from addressing the Board, (3) try to control content in the homeowner forum, or (4) intimidate or discourage owners from speaking who might show up poorly on paper.

People: understand that if an owner plans to address the board on some outrageous subject, they will shoot themselves in the foot! So let 'em talk their 3 or 5 minutes! If the Board is more business-like in their manner of receiving the blast, the attendees will immediately see who is the right party to place their trust in. If the speaker is logical and rational in their approach, and the Board is also so, the attendees will have respect for the process. There need not be fear about what someone says. If they criticize the Board or management, so be it. Everyone is entitled to their opinion. And that is just what it is, an opinion. If someone raises a big political issue, it is better for the Board to know what is coming so it can respond appropriately, without trying to address issues that are discussed through the rumor mill.

I personally see no good purpose to be served by forcing something that is not in the law. It just creates stress for everyone.

That said, of course, a Board might have a need to set some limits on the forum time so that the whole time set for the meeting is not used up by owners attacking the Board or management, and that (setting a time limit on comment) is allowed. 3-5 minutes seems to be the going allotment of time per member as far as I can tell, leaving about 20 minutes to a half hour before the meeting or during it for members to speak up. If someone has more than 3-5 minutes of "presentation", they should do it on paper and submit it. A writing engenders more accountability than a spoken presentation anyway. It becomes part of the permanent association record.

Perhaps Boards are mislead by the limitations and restrictions in the new California Agenda law, and feel "hobbled" about speaking of certain matters, but all the Board has to do if someone asks the Board to take action on something that is not on the agenda is say "We cannot address new business at this meeting that is not on the agenda," or "You are entitled to your thoughts, if you want more information on the subject .... or you want to submit the request to the Board, ... [please do so in writing ... or tell them how to get additional information]."

If someone out there can provide me with feedback on the necessity for this practice, and the actual source of authority other than the new Agenda law (which I do not see as support for this practice), I will review it, and comment. Until then, I believe it might be perceived as an improper intent to "chill" homeowner comment.

[You can contact me through my website at http://www.californiacondoguru.com.]

I remain open-minded; I have changed my opinions before, given sufficient evidence to support an argument. And perspective can be an important consideration.

[See my blog of March 8 to see how feedback can change an opinion.]

Posted by Beth Grimm at 8:18 PM

California HOA Elections - Is Small Claims the Right Venue?

I get several emails every week about elections issues. Many are generated simply because of the confusion in the law. Some are generated by sore losers. Some are generated by people who fail to pay assessments and complain alot about things, but still think they should be able to serve on the Board (withholding assessments is not the way to get there, folks). Some are really incredible stories about what their boards did during the elections process, to thwart the efforts of wannabe candidates.

My experience in following up with some of these is that some HOA Boards, and/or some attorneys that are advising them, are way, way out in left field in the way they conduct elections.

One particular area of concern is Boards that are, or are advised to, start suspending voter rights after ballots have been sent out to owners, and the buzz is that the election might not go the way the Board wants it too. Sometimes a Board will "revive" a voter suspension clause that has been sitting in the dust for years, just before an important election wherein some minority candidates have indicated an interest in running. Sometimes the revival comes through "alleged" violations that are not justified.

Now, no one out there has to get their shorts in a bind if they do things in a fair and above-board manner. Anyone reading this with a guilty conscience may well come back and blast me for saying this, but when a Board and/or its attorney does something like what is described above, the owners deserve a reasonable chance to challenge that election, and it should not cost them a fortune to do it.

To some degree, I am willing to backtrack from earlier communications I had with the author of the Elections legislation, at least on one point . (Note that there are still a bunch of issues created by the new laws that require a fair amount of creativity in reconciling practicalities, document provisions, the Corporations Code and the Davis Stirling Act, and that leave HOAs open to varying legal interpretations, don't get me wrong.) And what point is it that deserves this "backtracking"?

It's simple - abuses that I have seen. I now believe that many challenges should be able to be brought at the small claims court level. In some cases, the wrongdoing is so obvious that it begs attention.

True, small claims court hearing officers may not have the expertise to fully understand and interpret the HOA election laws, which are complicated (and which many an attorney - even HOA trained - have trouble agreeing on), but Defendants can appeal and get higher authority if they feel justified in doing so. And some of the scenarios that have been presented to me smell so bad that it would be obvious to any lawyer looking for elements of fairness that, as the old saying goes "something is rotten in the State of Denmark." [Not meant as a blow to Denmark, just making a point.]

The law on remedies for elections says this:

"1363.09. REMEDIES. (Operative July 1, 2006.)

(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by an association of which he or she is a member, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 4 (commencing with Section 1357.100) of Chapter 2, were not followed, a court may void any results of the election.

(b) A member who prevails in a civil action to enforce his or her rights pursuant to this article shall be entitled to reasonable attorney's fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.

(c) A cause of action under Section 1363.03 with respect to access to association resources by a candidate or member advocating a point of view, the receipt of a ballot by a member, or the counting, tabulation, or reporting of, or access to, ballots for inspection and review after tabulation may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court."

I have commented in my book THE DAVIS STIRLING ACT IN PLAIN ENGLISH:

"Comment: The remedies are potentially quite severe for failure of an Association to comply with these new rules related to elections. Recovery of damages is available a well as court orders to void the election. And as you can see, owners will have access to resolve some of the issues in small claims court. The latitude and attitude of the small claims hearing officers is yet to be determined, and it is not crystal clear what remedies and what errors can be addressed there. It is more likely that an owner would be seeking a recount or new election than dollar damages, which is the remedy of small claims court. But what is clear is that there are new penalties that can be imposed on the Association by the court for failure to comply. This is a turn of events."

Now I have to say that it is my belief that most HOAs try to be fair in their elections and if they are, and they try in good faith to comply with the new law, it would be my hope that no small claims court officer would unravel their election or penalize the Board. The law is tough to understand. But I do believe that some situations deserve consideration. And some legal advisors are not acting in the best interests of the association. Attorneys are required by California ethical rules to take their direction from the Board, that is true, and that may lead them to think they should support the Board to the detriment of the members, but that is not true. Attorneys should be considering the entire HOA and should be acting in a manner that is in the best interests of the HOA, not of any individual board member. Zealousness in holding onto a client is no excuse or justification for innapropriate advice.

Posted by Beth Grimm at 7:42 PM

November 27, 2007

My Neighbor is *!#*&%!* - What Do I Do?

I hear this at least a once a week. "My neighbor is [crazy, bi-polar, unruly, mean, harrassing, scary, ......] and I am frightened to live here. What can I do? What can the Board do for me?"

First of all, it makes sense to think about what would you do if you did not live in a common interest development (CID) because it may be something that you have to resolve on your own with your neighbor.

If the person committed a crime (assault, battery, vandalism, etc.) you should call the police and talk to an officer, perhaps make a formal report/complaint.

If the neighbor is engaged in activity that is a nuisance, you might be successful in filing and pursuing a small claims court claim - however, that does require physical presence and confrontation in court (if the neighbor shows up) and explaining to a judge why you should get some dollars for the disruption of your enjoyment of your property so be prepared for this.

If the person is just plain mean, you would probably try to avoid them. Of course, the closer the quarters the harder that is.

You might talk to other owners and see if there is something that can be done, safety in numbers.

You might decide to file for a restraining/stay away order if you fear for your safety. In many courthouses there is assistance available in the form of a packet that explains the process and that contains the court papers necessary to file, without paying an attorney. Of course, again, the closer the quarters the more difficult it can be to get/enforce a restraiining order.

These are things you can do in a CID neighborhood also.

In a CID, you may get an extra layer of assistance, depending on one basic thing: is the neighbor doing something that is a violation of the governing documents? And sometimes the governing documents include a violation of the law as a violation of the documents.

So, in the case of a nuisance situation, the Board may have to take some action to abate the nuisance. To what degree the Board should act depends on the circumstances and what remedies are available in the governing documents (fines, reimbursement assessments perhaps, suspension of rights such as use of common area or attendance at meetings, etc.)

With regard to criminal or threatened criminal activity, the board may have a duty to warn about the dangers, provide more lighting, provide more security, take steps to make things safer, etc. Again, it depends on the circumstances. The Board is never to be considered a substitute for animal control or the police and if the problem suggests a call to either of these, the complaining person should do it.

For issues related to "bi-polar" (or other psychiatric or physiology-challenged or "affected" neighbors) it gets more dicey. Sometimes it is obvious when affected parties are "on" or "off" their medication because of their behavior. Sometimes its obvious someone is adversely affected by alzheimers or dementia. For these issues, you might consider the following:
***Keeping logs of activity so that if you do seek help, you can fully describe the situation and what is occurring, the frequency, times of day, etc.
***Seek help from local Social Services/Health Department representatives.
***Seek guidance or advice from the local police, or in some cases, where available, the phsychiatric section of the police department.
***Conduct some online research to find out more about the disease(s), what it means to those around the affected person, and how others handle it.
***Seek assistance from the courts or an attorney knowledgeable in HOA people type of issues.
***Write to the Board if you believe the person is likely to cause damage or harm to the association residents or property.

Beyond this, so much depends on the facts that are occurring, and what in the way of help is available in your locality. The remedies depend on the condition of the perpetrator, and also on what the documents require of the residents, and authorize in the way of remedies.

And, the path to a solution might be found in board action, rallying of neighbors, instituting a neighborhood watch, asking that fines or other penalties be imposed, etc. I hate to be evasive, but what works in one situation might not work in another.

Posted by Beth Grimm at 10:21 PM

September 19, 2007

What Board Conduct is Acceptable?

I receive a lot of emails telling me of board conduct that is outrageous. I, of course, do not always hear the other side when these issues come to me as complaints so do not consider this advice on a given situation, but I can respond as to what I do understand, have seen, have experienced first hand, and have heard about, as inappropriate behaviors.

Board members are fiduciaries and the mystery of that word can be resolved. They are responsible for managing and administering the assets of others; they have some control over that, and they are therefore held to a higher standard than other owners. They have responsibilities, and they can be sued.

So long as they are acting within their capacity as board members and in good faith - and there are statutorily defined components to that which are not going to be reiterated here, because this blog is for simple truths - a board member should be fine. The wrinkle comes when a board member is in denial, in a state of unrealistic entitlement, is inebriated, sick, or is just basically full of himself or herself. In my own experience, the following behaviors are things that have been brought to my attention as conduct of board members, and I can say with conviction, are things that they should absolutely not do. Whether anyone reading this "has a case" is not to be decided here.

Board members do not have license to:

Spill confidential information learned in valid executive session meetings - to anyone outside of the circle of confidentiality, EVEN IF THEY DO NOT LIKE THE INFORMATION OR THE WAY THE BOARD IS GOING WITH IT. Enron aside, and "whistle-blowers" law aside, I find in actual real life HOA experience that most directors that do it, and although they would like to consider themselves "whistleblowers", they are really just trying to trip up the other board members by using the information improperly.

Confront homeowners in anything less than a business-like or professional manner. Some board members feel the position gives them rights that a regular person does not have. Certainly, some power is conferred, but not the power to "get in someone's face". If Board members shout, pound tables, threaten members including other board members with anything other than what the governing documents and law allows, harass them (within the simplified definition which basically means engaging in continued actions intended to offend or threaten them), promise to make their lives within the association miserable, pick on them or single them out (which rises to inconsistency of enforcement of the documents), tell them they are "being watched", etc., they are acting improperly.

Get physical. A board member is acting in bad faith AND outside their capacity of a board member if he or she gets physical with anyone else, and claims protection of the board member status in his or her defense, or is "addressing" board member business.

Visit homes or confront others in the dark of night or engage in other conduct that is likely to unreasonably and intentionally escalate a situation. Any board member that confronts others to do "association business" after dark, in their homes, in an inebriated state (that means either party), in any situation with the intent to embarass the person, in a demeaning manner, or that condemns or confronts an owner about a situation or purported violation without catching them in the act or having proof or evidence that would stand up in court that there is a violation occurring (in other words, treat them as guilty, and punish them, without any due process consideration) is acting improperly.

Paying themselves from Association funds without presentation and receipt of proof of item to be reimbursed. Most documents for HOAs prohibit paying compensation to board members, and if compensation is paid, (without a separate contract for specific services, approved by the Board and disclosed to members), not only is the responsible board member(s) violating the governing documents in those cases, but the recipient of the "token pay" or any other compensation is losing important protections that exist in the law for unpaid volunteers. But the worst case scenario are those board members that "help themselves" without any oversight, even in cases where payment would otherwise be justified. Of course, if they are the only "volunteer" willing to serve, I could listen to arguments to the contrary on the necessary limits of oversight.

An association board that allows any board members to engage in the above types of conduct AND the board member who does it are both liable to find themselves at the nasty end of a lawsuit, and furthermore, could conceivably find themselves without insurance coverage to protect them. Gross, intentional and malicious conduct, discrimination and harrassment charges are often excluded in coverages.

So, if the conduct is occurring, stop it immediately. Get help if you do not know how to do that. I meet with many boards and have many conversations about this. I know that there are actions that can be put into place to address these behaviors. There are some other blogs on components of this subject, and I will try to do a full article on this specific subject (oh, there are so many things that need to be addressed) sometime soon. And boards, lest you think that I am picking on board members, you can expect a blog soon on what can be considered "legally actionable conduct" exhibited by owners. Many times, these blogs are triggered by an experience I have, or an email that I receive with a valid question, and since I have helped owners and board members and associations and managers in many varied situations and various capacities (advocate, mediator, negotiator, counselor, etc.), I try very hard to keep a good perspective and address both sides of an issue.

Posted by Beth Grimm at 10:37 AM

September 13, 2007

In the Event of An EQ -Are You Willing To Walk Away From Your Home? Lose Your Investment?

I will say it again: In the Event of An EQ -Are You Willing To Walk Away From Your Home - Lose Your Investment? How about this: Are you willing to force others out of their homes? If you are on the board, do you want to set your association up for failure in the event of a big earthquake? Do you want to let those with little invested in their homes dictate the level of protection of property for everyone in the development? Would you adopt the “Chicken Little " philosophy (“the sky is falling in so why bother planting the seeds”)?

Think about it. Certainly, if there is a devastating earthquake and your association is downed, that would be a very bad thing, but that does not mean the world is coming to an end. What is left are owners that need a solution. Certainly, there would be serious repercussions. The question is: is there going to be a chance that your members will be able to support rebuilding? And: What are you going to do to try and make sure it is within the realm of possibility that your association can rebuild?

If you are not willing to look at the possibilities, you can always throw your hands up and say - “if there is a big earthquake we are all cooked! So why try?” This is the “Chicken Little” philosophy.

I am in favor of the former, which is, looking at all options, and presenting all options to the members of the Association. I believe that Boards should look past the rising premiums and the lowered coverage aspects - painful as it might be - get above the anger with the insurance companies for doing this, and the disdain for the messengers (agents and brokers) who are scrambling to find you coverage, and get on with a plan to succeed if there is a big earthquake and if it hits your community hard.

Looking forward, and backward for that matter, if there is/was an EQ centered in your community, and it devastates your association, and others within a reasonably small radius, the Chicken Little "world is falling in" theorizing will/will have buried you. There will be heck to pay, lawsuits and pointing fingers all over the place. Few will think back that the $500, $1000 or $2000 that each owner would have had to pay for a year of some very basic protection was too heavy a price to pay.

And think about this too: even if the governing documents do not require the purchase of earthquake insurance, they do require that the board take measures to protect and preserve the property values. What can be more graphic a misstep than allowing the EQ to lapse, suffering EQ damage, and finding the property values are in the dumps?

This is why Boards need to take great pains to make sure that owners understand the ramifications of letting all EQ insurance go. There are various layers of coverage that can be considered to save money, and as layers are added, the price goes down. Individual owners can get protection through the CEA for up to $50,000 in loss assessment coverage for any special assessment they might have to pay in the event of an EQ event. If you as a Board tell owners they can get the coverage, and you take it a step further and calculate the amount of protection owners could get by multiplying the number of owners in your association by $50,000, you can realistically look at a reasonable deductible that may be higher than anything you have considered acceptable in the past. If 100 owners got the CEA coverage in your association, that is $5,000,000 worth of coverage (by my math) and encouraging this practice could allow raising the deductible, which could save some dollars.

It's a tough decision, purchasing earthquake insurance, or any insurance for that matter, as it seems like money gone into the wind, if there is no "event". But if we buck up and pay now, we may not have to pay 100 times over later on. Betting against yourself may seem a waste, but to me, the fact that such insurance still can be bought is a blessing in disguise. Some of the wind and flood damaged areas of the country no longer offer any of this kind of "sleep-at-night" protection at all.

Beth A. Grimm is an attorney who serves homeowner associations and homeowners alike. She is a frequent contributor to the Echo Journal and other similar publications in the State of California and on a national level. She is provides several publications written in plain English to help people who information about California law as it relates to homeowner associations. She posts a wealth of information on her web site at www.californiacondoguru.com.

Posted by Beth Grimm at 9:59 AM

May 8, 2007

Does Anyone Care About the Homeowner Who Has No Resource?... I mean Recourse .....

From a visitor of the condoguru site:

"I am beginning to feel the anger that the anti-HOA folks feel. I'm beginning to understand their position about HOA's. There is always a song and dance why we can't or shouldn't have

* Term limits for Board members. We currently have the same people on the board that we had 10 years ago and it is being run like a dictatorship of the worst kind.

* 100% funding. Even if we have problems coming up with a solution as to what is 100% funding is it is a disaster unless we have adequate funds. Our board of directors will NOT levy any special assessments nor will they increase our dues. That's how they get re-elected every year; homeowners love that. So maintenance is deferred year after year after year.

* Management Companies giving legal advice to board members and not being held legally liable for a thing they do. The board members are usually ignorant and rely on the management companies and believe anything they are told.

* Ombudsman... too costly? What is it costing us homeowners to not have one?

Does ANYBODY care about the homeowner who has no recourse?"

To this reader: Yes. Many do care about the owners, and everyone else involved. To comment:

TERM LIMITS: On the question of term limits, the reason in most cases that board members remain on the board for many years is that they cannot find replacements to serve. And as often happens, once a board member has served more than 5 or 10 years, they begin to feel resentful when owners who are not willing to serve start to criticize what they are doing or have been doing. Some do get dictatorial. It's not a pretty picture. And taking a nonpaying job that makes a person a target of disdain for trying to run a business while minimizing the "cost" to owners is less than fun; it is extremely challenging and a pain in the ___s. Establishing term limits could backfire as it limits the pool of willing volunteers, which is already shrinking as the laws continue to get tougher and more complicated, and the costs continue to rise without any viable means of conrolling them. And it could confuse the people serving who are not up to speed on association issues if it destroys continuity. The answer to this dilemma is getting more people to run for the Board, so there is reasonable turnover.

RESERVES ISSUES: It is nothing short of a small disaster that so many HOAs in California are seriously underfunded in reserves. Likewise, it is very sad that most buyers are not informed well enough to understand the reserves disclosures. However, some people care enough to write books on the subject - watch for the book "Condominium Answers" a national answer book which will be released this fall by Sourcebooks (author: yours truly) - the first three chapters are on what a person can do to avoid getting into a bad deal when buying a condo. The next three are about finances in HOAs. The next three are about how things work, basically, and the last two chapters are what to do if one does not like what they have gotten into, including how to get out of a bad situation.

The unfortunate fact with regard to finances and reserves is that the issue of how hard to hit current owners for past as well as future expenses is always a subject of debate. Should current owners have to bear the burden of years of underfunding? They already in many cases have to bear the cost of seriously deferred maintenance. And one has to consider the flipside which is that many California HOA owners would be forced out of their homes if immediately charged with assessments sufficient to pay up and fund reserves to 100%. And as to those that are forced out because they are unable to pay the special assessment needed to fund the reserves, the other owners will have to make up the difference, thereby presenting an extra burden for those who can afford to pay their own fair share. It's a difficult problem. The only realistic answer is addressing those things that require fixing right now, and using diligence in planning to bring up the reserves levels in the coming years at a reasonable pace with the goal to reach 100%. And the other critical thing is to be honest in disclosures. California law requires quite a graphic explanation, now, of the plans for the future, which was not the case in past years. So .... pay attention to them if you are thinking about buying a condo or townhome. And if your association has not given a Civil Code Section 1365.2.5 disclosure worksheet to you, ask for the equivalent information. It is this sort of accountability that will engender better planning, not strapping current owners with the burden of the past and future.

MANAGEMENT ISSUES: Truly, management companies should not give legal advice - and yet I often see communications (ugh, the emails) and management reports that flat out give [bad] legal advice. But on the flipside, boards often expect that managers should advise them on actions that have legal ramifications (after all - they are required to get some training about the laws, right?) and the boards do not want to spend money on legal fees, so this puts managers in a very difficult position.

I think we will very likely see more managers being held responsible though, for their own negligence or bad acts, or possibly even for giving legal advice without a license, in the coming years. (There was a seminar about this at a recent national law conference - guess what - some lawyers on the East Coast are really up in arms about this!) The truth is that most management contracts have indemnification provisions intended to protect the managers and the market place in many areas does not allow for much negotiation by Boards to make these provisions mutual, however, the question is whether these provisions will really fully protect managers who do make serious mistakes. In some other states, boards have sued the managers challenging the indemnification clauses. And I am told by some experts at recent national law and management conferences (although you must not take this as legal advice, only as information) that in some states, managers are losing these cases.

OMBUDSMAN IN CALIFORNIA: On the subject of a state ombudsman - it sounds pretty good to imagine that one can call the state ombudsman and get resolution to all the frustration. But there are no guarantees that such an agency will be a success. Staffing it with knowledgeable people and getting it up and running will be very expensive. Many forms of state agency have been discussed. The truth seems to be that no department of the state wants it unless it is self-sustaining (meaning paid for through sources outside the state coffers).

Ultimately, the cost could be very high to HOA owners, who are already feeling the effects of increased costs each year due to many things. And everyone in the industry from the managers, board members and down to the owners are paying a price due to the addition each year of expensive statutory compliance obligations in California. Who is winning the war? Condos that are supposed to be "affordable" often turn out not to be. One could say it is the attorneys who are winning the war, but that would be unfair too. It is not the HOA attorneys in this state pushing for complicated legislation, believe it or not. In most cases, it is constituent pressure on a legislator for more laws regulating boards. Not to say we are problem-free in this industry; however, California law has gotten so complicated that the average person (and many attorneys) cannot even fully understand the ultimate obligations for various actions or the number of statutes involved in answering one simple question. For example, if a board is having trouble with owners leaving out garbage cans for days on end after pickup, and wants to adopt a deterrent fine, it cannot consider even the most minimal fine until it has: (1) reviewed its governing documents to see if fining authority is apparent, reviewed the laws on fining, and tried to reconcile the two to determine what controls, (2) proposed a fines policy for proper circulation to owners and the legally required comment period (subject to a complicated set of statutes), (3) circulated the adopted legal fines policy (subject to complicated laws), (4) given proper legal notice of a hearing (and again, reconciling complicated laws on process with what is in the governing documents), (5) holding a hearing, (6) giving proper written legal notice of the board's decision (subject to statutory mandate about timing and contents), and then (7) collecting the fine if the conduct continues, via a small claims court process that requires board participation or hiring an attorney. What seems the most simple task is extremely complicated.

Let's say that the state approves an ombudsman program - one has to determine what is the better use of the money collected from the owners (as that is the group that will pay for this state agency), and all of the following have been considered:

Gathering and Dissemination of Educational Materials
Provision and Arranging of Low Cost Mediation Services
Enforcement of Laws through Fines and Other Punishments Against Board Members
Due Process Hearings for Accused

$5 per year per door (what has been suggested as a reasonable contribution by the state officials) will not begin to cover sll of the above processes, so look for higher costs than that or selective services (my bet is the focus will be on punishing uneducated board members). Take into consideration the buffer of costs (or should I say "waste") inherent with a state-run bureacracy and understand that the price for a state agency will be high - with no guarantee of happiness or justice.

All that said, maybe a state ombudsman is the answer to many homeowners' "prayers". If homeowner complaints engender more widespread education and accountability, that is a good thing. It is important to understand, however, that the flip side is that an ombudsman or state agency may just be an added cost of living in an HOA. Time will tell, because it is clear that the subject will keep coming up, again and again...

People do care! And I think it a favorable-odds bet that for each and every homeowner that is upset, there is probably also a board member and/or a manager that is just as frustrated within their role in this industry. My mantra: for every problem there is a solution, but before you decide which one to choose, sit at the other side of the table for a minute, and check out the view.

Posted by Beth Grimm at 7:33 PM

November 16, 2006

Does the Board Need to Have a Membership Meeting to Fine Someone?

There are many frustrated people in California, simply because answers are hard to find. Free answers at least. One of my readers asked this of me: "I need some clarification between CC1363 (g) and CC1357.100 - .130 (Adopting or Changing Operative Rules). My question is: Can a Board of Directors implement and enforce a monetary penalty for violations without having a membership meeting first? I am currently a homeowner. My attempts to get clarification from other sources failed because they were not attorneys. I just want to make sure the Board is following proper procedure. Thank you!"

The law in California is complicated but the first inquiry in any event is the governing documents. I have seen a few sets that have some requirements for passing rules, and setting a fining policy could be interpreted as rules. However, notwithstanding anything in the documents (a good legal phrase meaning basically ignore what is in the documents), this is what California law says on the subject:

A Board has to implement a fining schedule and circulate it to members before any member can be fined. The schedule has to be sent out to members when it is approved by the Board and thereafter, when changed. CC1363 (g)

However, when Civil Code Section CC1357.100 et seq. (Adopting or Changing Operative Rules) was signed into law effective the beginning of last year (2005), it added some steps to the process before implementation. The fine schedule is considered to be operating rules and so is subject to that statute. The law requires circulation of new or changed operating rules to the membership so that the members will know what is being proposed and will have an opportunity for commenting on the proposed rules. The period of time is often referred to as the "comment period". Members must have at least 30 days notice before the Board will take action on proposed rules, and must be able to attend the Board meeting where the action is proposed to be taken. There are some exceptions to this circulation requirement, such as if the rule simply reflects California law or some provision in the governing documents (and why, you say? because the Board is not exercising its own discretion or judgment, it is following existing legal requirements).

The Board must then consider implementation at an open BOARD meeting, not a membership meeting. The owners do not get to vote on the rules, only comment (except that if there ARE provisions in your governing documents consult an attorney on this so you are not steered in the wrong direction by the law).

There is a lot more to the inquiry. The fine schedule cannot conflict with the regulatory (called governing) documents of the Association. Once the schedule is circulated and the Board is considering fining an owner, the owner must be given a hearing before any fine is imposed. The law nicely calls it a meeting, ... if the Board is considering meeting to consider disciplinary action, the owner must be given notice and an opportunity the attend the "meeting." There are technical timing and notice requirements on hearings. Whew, the things a person must know just to accomplish a seemingly simple task!!!

Posted by Beth Grimm at 8:24 PM

November 11, 2006

Recall of the Board - How Hard Is It?

Wanting to recall a board is a common desire of an owner or owners who are frustrated with the Board's actions. Sometime the issues are about parking, sometimes pets, but probaby the most common complaint is about financial issues. From the standpoint of the Owners, it looks like the Board is misspending funds. And when Board Members get peppered with questions, they often close down. And when Owners want records and verification for the expenditures, many Boards get tight lipped and closed fisted. Sometimes it's a defensive response. Sometimes it's just because no one has ever shown any interest in doing any of the volunteer work to figure out the budget or in any other capacity, and so the other members of the Association are completely in the dark about finances, by their own design. However, special assessments tend to get the Owner's attention. They serve as a wakeup call, and the immediate reaction often is this (from a reader):

Our Board just passed a special assessment and demanded that it be paid immediately. There was no meeting about it, no warning, no explanation, and a lot of us are upset. I had a meeting with several other Owner's and we all signed a Petition to Recall The Board. We asked for a meeting for the Recall - just like the law says we can do. The Board did not give us notice of when the "Special Meeting" will be called and I advised the other members that we need to pick the time and the place of the 'Special Meeting.' What happens if the BOD decides not to show up at our meeting? Are they automatically recalled?"

The simple answer is "no" the Board is not recalled just by virtue of the fact that they do not acknowledge a meeting called by Owners for recall. In the "old days" (pre the new elections law requirements), the Corporations Code had a process similar to that described above that was enforceable. It basically allowed homeowners to proceed to schedule a recall meeting if the Board did not answer a valid petition asking for recall properly, i.e., by scheduling a meeting within 30-90 days out, and providing notice within 20 days of the petition to the members. However, that process, though it still exists within the Corporations Code, is hobbled by the new elections law requirements. Even in the "old days" if a group of owners did schedule a meeting it often ended in chaos because many times, the Board would just ignore the results and then the battle was who had rights to the checkbooks and accounts, or the old Board claimed that the owners did not do the proper procedures and the matter often ended up in court or one side or the other got tired of the fight and gave up.

Today, it is harder for a group to proceed on their own, if the Board is resistent to honoring a valid petition for recall. The Board should, because if the Board members fail in their duty to follow the law, they could conceivably end up with some personal liability. However, the question is how to properly respond to a petition. In the "old days" scheduling, noticing and proceeding with the recall meeting and vote would be a legal and appropriate response (assuming the petition was "valid" and satisfied the legal requirements). The meeting would be held, the vote usually was decided by the result of the "proxy war", and the sides went their ways when the results were in. Sometimes the Board voted in, because of cumulative voting, ended up consisting of two strong members from each "camp" and one "fence-sitter." As it happened then, the "fence-sitter" (or a kinder word might be neutral) became the most powerful person on the board as they were always the "tie breaker".

Today, the process is more convoluted. The new elections law requires a written secret ballot by mail and the good news is (from the owner's perspectives) each Owner can vote in private, by mailing their ballot from home to be held, protected and counted by an independent source. The bad news is that there is no road map now for getting there. The Corp Code requires "calling a meeting". The elections law requires voting by mail. The Board may decide to try and satisfy neither, or both. Even if the Board decides to send out ballots and to call a meeting to deliver and count the ballots, the members may end up in a barrage of pre-meeting hit pieces and be confused about choosing. Neighbors may be pitted against neighbors. The proxy gatherers may go out in force. However, the issues and questions surrounding proxy distribution and use complicate the process considerably. No matter which side is being represented, there is likely a challenge from the other side on almost every step of the way, because there is no clear guidance on how the recall should proceed.

For example, the Board may decide not to distribute proxies thinking it not necessary to use them. It is true that because the new law says the returned ballots count as if the person was at a meeting, no proxies are necessary to establish quorum. And the Board may decide not to accept any proxies. But if the association documents allow members to vote by proxy, I would have to question the legality of that position.

And there is the question of how the election for Board members should proceed if the Board or any director is recalled. If the whole Board is recalled, who is going to conduct the election of the successors? If it is the Board that is recalled, owners may come unglued as the risks continue of the actions complained of that lead to the recall. If it is not the Board, then who will it be? A prudent Board could appoint the Inspectors of Election to conduct the election for the Board but what Board is likely to have that much insight or desire to make things easier for the "insurgents." And even if the Board is pragmatic and has a process in place for someone else to conduct the election of the successors, who makes decisions during the "in between" time, especially if a contract comes up for renewal or if there is a weather event that causes severe damage to the complex or an accident in the pool that needs addressing or something like that. It's like a boat without a rudder.

In the "old days" the recall and relection of successors (if the Board was removed) would commonly occur the same night. But now that is quite difficult because of the election law requirements of having to send the ballot out 30 days before the votes are to be tabulated. Some boards may try to combine the ballots into one - the question of the recall, and the election of successors in case the recall is successful. But this is difficult as the slate of proposed candidates cannot really be firmly established until one knows if the entire Board is going to be recalled. And even then, though the incumbents and the proponents of recall may have their slates identified, the neutrals have not had an opportunity to weigh in on the nominations for the Board that would be in effect if the Board is recalled.

So you can see, it gets quite complicted. There is an article on my website called "Recall in An HOA - A Blesssing or a Curse! I suggest you read it (http://www.californiacondoguru.coat the Guru site) and then decide if there is not a better way to address grievances. Groups of owners do not always think like individuals. There are such things as forcing a meeting to discuss a difficult ballot measure or special assessment, inviting a face-to-face with the concerned owners and the Board, asking for a group or representative mediation on an issue. The owners are entitled to seek help to enforce the document proviisions against Boards doing things in violation of the documents, and a good legal representative may be able to help apply pressure in the right places. The members can ask for an arbitration on the issue, ask for a neutral opinion from an expert, etc. The key is find the right buttons to push to get what you want and need, and what is legal. If the button is too hard to push (it is stuck) you may have to resort to desperate measures such as attempting recall. However, given the difficulty in trying to integrate proper procedures under the new Davis Stirling requirements and the Corporations Code, a group of owners will probably need legal counsel or at least a savvy advisor.

Leading a group of owners through recall is more difficult than ever. A Board can put up a lot of hurdles, but it is not out of the question. Sometimes the threat or pressure of a recall effort will scare board members off. No one likes to be threatened with that sort of action. There is nothing precluding a group of owners from going to court and asking the court to direct the processes for the election, laying out what is acceptable and what is not. It may be possible that less money would be expended and more accomplished by doing this. A group can fight hard and make all the wrong mistakes, even with paid legal counsel, and this area of actions has become so complicated as to necessitate a real expert and a real good fight to achieve a legally successful recall effort. I am guessing the cost of the process is doubled or tripled from earlier times because of the many more hurdles that can be put up by the opposition. In my experience, it used to take between $1500 and $3000 to get to a successful recall meeting and election; now I would guess the cost to be more like $3000-$6000. Some have been able to accomplish the effort without help or expenditures like this, but if those efforts were achieved by bullying and threats, one can almost predict that the other side will be back with a vengence. I have seen situations where in one association they end of with several recall efforts within the course of a year or two. I hope you do not end up there if you are considering such an effort.

Posted by Beth Grimm at 1:26 PM

August 25, 2006

DOG LOVERS - LISTEN UP - DOGS AT THE POOL

Here is an email I received from a dog lover. " What is the rule of law for California with regards to dogs on leash in the "pool area" ... if dogs are on the leash, and are not a threat to anyone, because of their distance from others, it seems cruel not to allow a dog to sit outside in the sun as opposed to having to stay inside. Pets add a lot of the life of people, and to exclude pets from all condos, is not realistic and unlawful. I live by the pool and I will say that the kids down there are a lot louder then the noise my dog makes."

I sympathize and empathize with this person. I had to put my dog of 16 years down last year and she was the best behaving dog I have ever seen. Without professional training she healed pretty much from the day she learned to walk with me. She never bit anyone and never barked in her whole life except for one time when a strange man came to the door at night one time and spoke without knocking through the screen door. She would have sat by my chair at the pool and watched the activity without batting an eye. She was a great companion. But I never took her to a community swimming pool - why? Because there were rules about that.

How many dogs do you see at the public pools? Seeing-eye dogs, maybe. And I know someone is going to tell me that their complex allows dogs at the pool. Heck, one time a board member told me their association has a swimming time at the pool when the dog owners can swim with their dogs. (No one asked my opinion - the statement came at a seminar when someone came to a booth I was manning and told me that.) I get calls from managers who say that certain owners or tenants are taking their dogs to the pool and letting them swim, and they want a letter from me because their letters and demands have gone unheeded.

I am not a believer that dogs or any pets or animals (other than a bona fide service animal) should be allowed at the swimming pool or in the clubhouse. That is because these facilities were not built for the dogs. They were built for human use and enjoyment. A dog run is for a dog's exercise and enjoyment, although I know of one association that built a dog run for people to exercise their dogs and the dog owners opt instead for exercising their dogs in the adjoining park, I assume, because people are not picking up after their dogs in the dog run.

I believe rules excluding dogs from these places are justified. Maybe one dog owner is a good "parent" but another is not. How is a board or management expected to deal with this reasonably? How about the owner that brings their dog during the day and is the perfect "parent" and then brings the pet back after dark and lets them swim under cover of darkness. What about the dog owner who has a dog that is perfect until a child approaches and then goes into protective mode? What about the dogs that shed, exude odor or spread dander around.

Yes, children can be a pain too and a dog owner may be justified in saying that children at the pool are more of a nuisance than his or her dog. And they are probably right - but children are different. They are a protected class in the eyes of the law, and they are exactly what swimming pools, parks and playyards are all about.

If your association wants a dog park, and there is space for it, it may work out for the owners. But if not, I think it best not to expect that the Association will allow dogs and other pets at poolside.

Posted by Beth Grimm at 10:37 PM

August 9, 2006

Frustrated? No One Listening? Opportunities For Face-To-Face Meetings

I put this blog under Owner frustration but it could just as easily go under Board frustration. In California, if either an owner or the Board has been attempting to resolve a situation or dispute with the other, sometimes the written word (as suggested in an earlier blog as a means of addressing problems) does not work. I always think it is a good idea to work on establishing the best "paper trail" possible because if someone else is reviewing a situation, they generally glean the most credible information from the written word. Of course, the written word can work for or against you. Writings that contain facts and accurate statements are more credible than personal attacks and offensive language. Oral communications often become "he said-she said" arguments. Still, there are many cases where a face-to-face exchange may have a better result than a written "demand".

In California, owners have various options that command an audience with the Board. Pursuant to Civil Code Section 1363.05, homeowners are entitled to address the Board at any open meeting. The Board can set parameters on time (meaning time of opportunity or length of "time"), and if an owner is very offensive in their approach, it may lead to ejection from the meeting or adjournment (get legal advice on these matters if they are remedies you want to consider). Also, Owners have a right to request a meeting with the Board to discuss payment options on overdue assessments (Civil Code Section 1367.1) or request an "internal dispute resolution" meeting (dubbed IDR - Civil Code Section 1363.810 and following). If the Owner requests an IDR meeting, the Board has to comply. It may include one board member or all, but the usual advice is no less than 2 (because of the "he said-she said" possibilities). On the other hand, if the Board asks an owner to attend an IDR meeting, the Owner has the choice whether to attend or not.

There is another option available to Owners or to the Board, as a means of dispute resolution, (short of litigation and coming face-to-face in court). It's called ADR (alternative dispute resolution). Under California law, owners and boards are required in many instances when a CC&R or rule violation or board failure is involved and someone wants a court order or declaration from a judge to try and get the other side to engage in some form of ADR. (Civil Code Section 1368.520 and following) There are various forms of ADR, two of which include arbitration or mediation. If either party refuses, and there is a lawsuit, a judge can take a refusal to participate in ADR into consideration in determining an attorney fees award, so there is incentive to participate written into the law.

In a future blog I will address more face-to-face options including the reality of "hearing"s. Look for that in the Board frustration category!

Posted by Beth Grimm at 9:26 PM

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

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

June 6, 2006

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

May 20, 2006

Commercial Vehicles in HOAs - Have You Received Your Notice Yet?

A reader wrote the following note to me, searching for information on the subject: "We just recently purchased a condo in ____. My husband drives a company/commercial truck provided by his company. He's been parking in the common parking area and yesterday, one of the homeowners approached him and said that commercial vehicles are not permitted to park in the common areas of the community. He further stated that eventually they will tow vehicles violating this rule. We have not reviewed our CC&R's but is this not discriminatory?"

The simple answer is "No", it is not discriminatory. People often confuse the term. "Discrimination" occurs when one party does something to another that violates their constitutional rights. These rights are identified in Constitutions, with federal rights being consistent among Americans because of the United States Constitution. States may add another layer of rights through voter referendums and so added rights vary among the state constitutions - California being one of the front runners in identifying and protecting rights. Still, the right to park a commercial vehicle in a residential association is not a fundamental right in any constitution I am aware of.

The other time the word "discrimination" surfaces in the HOA context , although still not technically appropriate in a legal sense, is when the Board enforces a rule inconsistently among owners or imposes a restriction on one or fewer than all of the owners. People tend to use the word loosely as in, "They discriminated against me by towing my truck and not the neighbors." The correct legal cause of action in that case would be breach of fiduciary duty for inconsistent enforcement of the rules. (A bunch of legal jargon I know but it is important not to misconstrue discrimination claims if you want to sound like you know what you are talking about.)

Getting back to the commercial vehicle and possible restriction in the documents. Actually, it is a very common restriction in residential community associations. I did not ask for the details in this case but it you are interested in finding out about your association, and you are in California, pull out the docs you got in the purchase of your property and look. Most likely it would appear in the CC&Rs - aka the Declaration of Covenants, Conditions and Restrictions (hence the shortcut CC&Rs name). It probably is there in some form. It may be very general - look for a section on "uses" and you will probably find some language prohibiting commercial vehicles (if you live in a residential community). In other states, your regulatory document may be called something else like "Deed Restrictions" , but I am referring to the recorded regulatory document as the most likely place to find such a restriction.

Then, Boards sometimes expand on what is or is not allowed by providing more descriptive details on what they interpret to be commercial vehicles, in the rules. Some boards focus on signs, racks, ladders, size, and obtrusiveness (level of offense to the systems - or simply put "how ugly is it?"). Many commercial vehicles do not fit very well in parking spaces, carports, or garages and many people do not like to look at a big yellow tow truck or "The Bug Van" with a big black spider covering the entire exterior, in the neighbor's driveway or street in front of their house. So its understandable that there are restrictions. On the other hand, since pickup trucks and the like are required to purchase commercial plates, some might consider them commercial vehicles but it seems overkill to try and ban pickup trucks used for transportation. They are "hot" after all, aren't they? They are even marketing special models for females these days, and a well kept truck would likely be more aesthetically pleasing than your average beat up older model gray honda even to a non-truck person.

Back to the question at hand, how offensive is a regular size vehicle, truck, van or otherwise, with a sign on the side or on the back? Some Boards deal with this by suggesting that owners may use magnetic signs so long as they remove them when the vehicle is parked in the development. Some let it be and don't have such a "suggestion" or rule.

In any event, its not discrimination in the true sense of the word. That word is a trigger that sets people off so if you want to approach an issue with the Board or any other person and want the other party to listen to your plea, I suggest you keep that word in your pocket. It would be "inconsistent" treatment if the Board does not enforce the restriction consistently among owners, and that word is not usually the kind of word that, when used, causes the listener to shut out everything else that is said after it.

So take another look at the situation, and look for a reasonable solution. Perhaps there are questions that need to be asked - like whether there are any rules that clarify the interpretation of what a commercial vehicle is, whether the vehicles can be parked in the garage, etc. In one situation a client of mine was involved in, the employer let the worker drive a smaller truck home at night so it would fit in his garage.

And boards cannot really ban all pickup trucks, broncos and the like used for personal use (I am not talking about cross-over vehicles used for personal and commercial use here) just because someone does not like trucks. A common problem in being to literal is that because of a case quite a few years ago that established that one man's bronco is another mans rolls royce. boards are hard pressed to prohibit such vehicles. (Keep in mind this is not legal advice, just information.)

Since there are so many varied HOAs in this state (California), I will not go into what limits are right or wrong for any particular one. This is something I discuss with a client if they want to get more clarification written into rules on what they can allow and what they cannot allow. I appreciate a board that wants to fit the rule with the community lifestyle so it can be enforced without starting a civil war.

Posted by Beth Grimm at 9:22 AM

March 24, 2006

Creaking Bed - Worthy of Fine?

Here is a problem that is more common than you can imagine. The question posed to me on the website was: "My HOA has levied a fine against me because my bed creaks; can they do that?"

In California, before a Board can impose a fine on any owner there are steps required to provide the owner with a fair opportunity to present their side of the situation. Civil Code Section 1363(h) says: " When the board of directors is going to meet to consider or impose discipline upon a member, the board shall notify the member in writing, by either personal delivery or first-class mail, at least 10 days prior to the meeting. The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined, and a statement that the member has a right to attend and may address the board at the meeting. The board of directors of the association shall meet in executive session if requested by the member being disciplined. If the board imposes discipline on a member, the board shall provide the member a written notification of the disciplinary action, by either personal delivery or first-class mail, within 15 days following the action. A disciplinary action shall not be effective unless the board fulfills the requirements of this subdivision."

This law does not require that the Board wait until an owner can attend the meeting, or compromise the date (although there are many boards that try to accomodate an owner) It does, however, require that the Board do its due diligence and actually consider the matter at a meeting that the homeowner is invited to, and requires a timely written decision.

Now to the creaking bed. This is really not much different than a situation where someone in a below unit has to listen to beds moving across a wood floor, the headboard hitting the wall, or other "bedroom" noises. Believe it or not, these are fairly common complaints. Wny? Because many condominiums and townhouses with up/down units do not have very good soundproofing, or because owners install hard surface flooring such as hardwood or laminate, and do not put rubber casters under the bed, or because owners are not sensitive to the fact that the downstairs neighbors have to listen to everything above a whisper in the bedroom when the units are "stacked" on one another. Its a common complaint (the nighttime noise) when a day sleeper lives below a night person or insomniac who watches tv all hours of the night. Nighttime flushing of a toilet or running a shower can drive the neighbors below crazy. These kind of complaints seem to be exacerbated in a condominium conversion, or development that does not prohibit installation of flooring materials that increase sound transmission between units. The question is: What should a board do about these noises?

To be pragmatic, the Board has to look at whether there is a violation of the governing documents. There is often a nuisance clause that prohibits activities that "disturb the quiet enjoyment" of the neighbors. And a situation like any of the above puts the Board in the very difficult position of determining what is reasonable nighttime noise. There may be a prohibition on hardwood, laminate or tiled flooring surfaces in the living room and bedroom. If someone installs the product without approval, there may be recourse in that area. In any event, the Board's position is not an enviable one, and the owner who lives below is not in an enviable position either. It is really up to the owner who lives above to make a reasonable accomodation if some condition in their unit is causing extra noise. But sometimes the lower unit owner can help themselves by either working with the upstairs owner, asking for courtesies about what shoes are (or are not) worn on the floors, what action is encouraged or discouraged of children, or creating a source of "white noise" in their own space .

Maybe in the case of the creaking bed, ordering that it be repaired was not unreasonable. The owner commented that she did not feel the board should fine her when it was not her fault that the bed was broken (apparently it was broken bhy movers).

So there you are. You be the judge here - to fine or not to fine.

Posted by Beth Grimm at 9:10 PM

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 8:44 PM