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.

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"."

Comment: This is common, still, even after the agenda law. The intention of the California law on providing an agenda is that owners will be informed ahead of time on topics that the Board is going to be addressing in the meetings, so they can come if they are interested. (Owners should come anyway, and pay attention to what is occurring if only to keep abreast of what is happening in the association and to see their elected officials at work.) Since the law prohibits the boards from discussing topics not on the agenda, the intent is that the owners will not be blind-sided by decisions on topics of material interest, simply by avoiding noting them in the meeting notices.

Simple references to "old busines" and "new business" are not enough, in my opinion, to allow the board to freely discuss various topics that might fall into one of those categories. It does not satisfy the new law. I don't think they even come close. There are exceptions the Board should follow when topics come up that need discussion or action and the need for discussion or action was not known at the time the agenda had to be out (at least 4 days before the open board meeting). That said, what is the price to be paid for failure to follow the law? Not a big one really, unless someone wants to pursue their rights legally, which can be done, but when is it worth it?

For much much more on this issue, 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.

Soliciting Candidates

"Is it written in the law or is it simply a recommendation, that a written solicitation be mailed to the owners at least 30-60 days prior to sending out the ballots?"

Answer: There is nothing in the law that requires sending out a solicitation letter to the members; however, my position would be that it is in line with having a fair election. Some HOAs or Condo Associations post the information on the Association website - however, it may not be likely that all members will frequent the site and find this information. Since the Board cannot prevent a "qualified" nominee from running for the board I believe sending the solicitation helps prevent a claim related to fairness of an election. If a board conducts a "tight-fisted" election trying to shut qualified candidates out, it could backfire.

What candidates are "qualified"?

Answer: This is "document specific" for each HOA or Condo Association. That means what the association governing documents (Bylaws, CC&Rs, Articles of Inc. etc.) say is critical. For instance, board members may have to be "in good standing", be on title, have taken training classes, etc.

"If there are three positions open for election and only two incumbents/nominees are running, how is the third position filled? Is the vacancy filled by nomination of elected board w/majority approval or does this position have to be filled through another election process?"

Answer: There may be language in the governing documents or election rules that pertains. If not, then it would be up to the board (by majority approval) to appoint someone to fill the third position, and that person would serve for the full term that was subject to election. However, check the documents because some say that positions must be filled by election of the members, in which case the board's job will be to pull someone forward (kicking and screaming perhaps??) and get their name on the ballot, or wait until there is a willing volunteer and then hold a special membership election if it is not the usual election time, or schedule an election, and then declare the willing volunteer to fill the position by acclamation.

All of these ideas about filling positions with or without going through with an actual election are dicey and controversial, so if you are contemplating any, I suggest getting good legal advice and an opinion letter for the file. The law is less clear than one would like, and so there are fights ... yes, heated fights ... over what it means. Don't wait until the fire is raging as it is much more expensive to put out than to prevent.

One great preventive tool is to gather more information and educate yoursule about elections and the processes. You get can an incredible amount of information by visiting the website

(1) For free (see the link to "Elections After SB 61") or
(2) Through a series of very low cost Primers on Elections, including a forms Primer to help Condo and HOA boards set up proper elections. The website is http://www.californiacondoguru.com and the links are evident - look for the link to Publications for the scoop on all available Primers including the Elections Primers.

I think we all agree that continuing means something that goes on day to day without changing, such as a paint color or vehicle parked without being moved. "Recurring" would be something that happens, and then happens again, and then happens again, such as slamming a door or parking a vehicle in the wrong place each day. Whew! Glad we can agree on something (or do we???).

Now, the big question is about imposing fines for these violations - after notice and a hearing of course. Does the Board have to hold more than one hearing for continuing or recurring violations. You can read my earlier blog for what I, and some colleagues have opined. My question for this day is:

Are HOA and Condo hearings on par with criminal proceedings, where due process is critically important? Obviously the stakes are much higher in a criminal proceeding, and "state action" is clearly involved because the penalties come straight from the Penal Code.

Fining an owner for continuing or recurring conduct - once they have been clearly given the message that such conduct will subject them to a fine or suspension of other rights (such as pool use - yes, that too), is in my opinion fundamentally fair.
And what is also important is that it is fair to the volunteer board members and the rest of the community, that violators should be subject to some penalty.

One commentator weighed in and said that a board could give notice and hold the hearing, and then provide the owner with a "probationary" period, with the cavaet that if "probation" was violated, another fine would be imposed. I do not think that is a bad idea - it might make alot of sense in a situation like pool abuse, where fines are imposed for disruptive conduct at the pool, and the "probation sentence" is that if the same conduct recurs, the punishment is suspension for the season.

But of course (there is always a "but" isn't there?), if there is reason to suspect the proof or complaint is unreliable, then imposing any fines is risky and possibly unfair.

That is why we should focus some discussion on what is reliable and credible proof/evidence. If the board can have it independently confirmed, then it is reliable. If more than one person has complained, it likely is reliable information, but certainly more investigation can be performed. If it is Joe Blow and Patty Mouth throwing insults and complaints about each other's conduct, there is reason to investigate and seek out further truths (or possibly even "butt out").

As to fining into infinity, at some point the Board has to make a decision to "sh__" or get off the "p_t" (anyone familiar it that saying)? This decision should be a good sense one. If someone constructed a deck over common area for all others to see, then this situation would dictate more assertive action than "forever fines". If the owners' tenants cannot control themselves at the pool and create turmoil every time they attend, then they should be banned for a reasonable period each time it occurs. Evidently, some "training" is required here. If an owner lets their dog poop in the laundry room every time they do laundry, then a fine each time, possibly even escalating, might be "fine".

If an HOA or Condo Association is challenged on a fine or fines, the most likely venue is small claims court, which is a court of "equity" (fairness in other words).

So, I say again, HOA and Condo Association hearings and fines or suspension of use of facilities are not on par with criminal proceedings. And HOAs and Condo Associations are not police, judges, or jailers who have it in their power to confine people to bread and water, or solitary confinement, or time in jail, or the electric chair. Certainly, there are boards that have taken action with regard to fines that is unreasonable, unfair, unwarranted, and downright ridiculous. But that does not taint the pool of volunteer board members that are just trying to do the right thing when dealing with the perpetual violator (at least not until there is some appeal court case in California or legislation that dictates processes and procedures further).

Can by law a home owner in a condo complex get in touch with a board
of directors member thru email ?

There is no law on this. Boards are not required to accept or respond to emails, so if the Association policy is to communicate otherwise, such as coming to a meeting and addressing the Board during homeowner forum time, or the old fashioned "write a letter" method, I would suggest following it. Remember directors are volunteers and are providing a service to the HOA or Condo Association, and may not want to be inundated with emails. There may be required channels of communication through management so that there is assurance that all communications relating to association business go through one portal.

By law, can a member of the association get in touch with one of the
vendors that works for the association ?

Again, there is no law, however, whether it is a good idea would depend on "motive". If you want to tell the vendor what to do or complain about something, I would say the better way to proceed is through the appropriate means of communication with the association board or manager. A homeowner can be reprimanded, subject to paying extra costs, and even subject to disciplinary action if he or she interferes with a vendor and the work they are trying to accomplish for the association.

Of course, if the contact relates to something constructive, like arranging inspections or entry as needed, that is normally okay, unless a liasion is appointed to communicate with owners over such things.

If you want work done by a vendor used by the Association, that might be allright too, but the Association should know, and the vendor should make it clear any work for the owner is under separate contract with the owner.

So, without a law, and given that associations have varied practices and policies in these areas, I have provided the common lawyer-like answer of "it depends" [on association policy]. The Association may not have one at the present; however, if an owner becomes overenthusiastic or abusive with communications, the Board will likely adopt one.

If you read the E-Newsletter on fines, you will see that HOA and Condo boards are not really "state actors" (governmental or public entities) and therefore not necessarily subject to legal "due process" standards in all cases. There are some court decisions suggesting otherwise in the country. In any case, the position I see as viable is that at the least, HOA and Condo Boards should engage in fundamental fairness in holding hearings (which process is governed by California law) and in considering disciplinary action such as fines or suspension of membership rights for violations of the governing documents or rules.

I am not necessarily in the "camp" that believes owners in HOAs or Condo Associations have the right to technically "confront" witnesses that have complained of conduct which put the owner before the board in a disciplinary hearing. In other words, cross-examination, in my view, should not be a right that extends to homeowner associations. However, a board that is intuitive can, if inviting both parties (the accused and the accuser) to the hearing, and allowing each to present their side of things, find out a lot about what is going on, which will help in making a reasonable decision about whether disciplinary action should be imposed.

For any situation that can be independently verified - I do not believe the "accuser" or "complainer" needs to be invited to the hearing at all.

And, if it appears there is any chance of actual physical or abusive "confrontation" by the accused, or the accuser, get some legal help from an experienced practitioner in formulating a plan for the hearing, or protecting identities, or whatever you believe is needed.

Watch for more on this. In a later blog, I will address whether I believe tenants should be invited to hearings when they are the subject of the conduct being examined.

If you want extensive detailed information on enforcement, hearings, policy setting, etc., check out the Enforcement Primers available on my website in the webstore at http://www.californiacondoguru.com.

"Love your site...it is very helpful... I have a question I thought you may be able to help with...I understand if you cannot answer... What are your feeling in regards to a Board's responsibility in terms of letting owners know about foreclosures within our complex...some members feel it is our fiduciary duty to notify all residents regarding foreclosures, while others feel we shouldn't say anything, especially if the resident in foreclosure is current on their monthly HOA dues...the same question has been posed for both foreclosures discovered doing "Google" searches, as well as foreclosures recorded in our county documents.... Thanks for any feedback..."

Here is my response (and I have answered the question similarly in an earlier blog about the idea of publishing the names of persons who are in collections):

To what end???!!!

Is the purpose to

Let everyone know what units are vacant or will be soon so the burglars and thieves can step in in the dark of night? (Because that could happen.)

Let everyone know the value of the places are going down because of foreclosures leading to a mentality of "that place is going to the dogs" or "sell and get out quick"???!!! (Because that could happen.)

Let the "vigilantes" loose on those who owe money so that they can hassle them, threaten them, or worse (setting the Association up for a lawsuit if the action taken is offensive enough)???!!! (Again, could happen...)

Or

Try and shame the owners who cannot pay or have decided to walk away into paying???!!! (That does not work, people either pay, do not have the money to pay, or have made an economic decision that in better times might not have been made.)

I have to say ... if you are in it for the shame game... then [I could say] shame on you [ but I might make some people mad]. Are we back in the days of the witch-hunt or scarlett letter?

I have said before, collections should be carried out in a "reasonable manner", business-like and professionally, taking advantage of all practical options, and a board does have a fidiuciary duty to be diligent in its attempts to collect outstanding delinquencies as those negatively impact the HOA's bottom line. However, "laying shame" on those whose homes are being foreclosed?????". That is not one of the items that is included in my "tool kit".

If you want to know what is included, visit the guru at http://www.californiacondoguru.com and check out the very affordable Primers in the webstore. There are 6 on assessments alone, 3 of which deal specifically with collections processes.

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.

Some legal practitioners believe a hearing is required for each violation, except continuing violations for which a daily or weekly or other fines might be imposed. Some believe that more than one fine can be imposed - but there should be a limit, for example, one colleague has expressed a "3 Strikes - Rule" philosophy, essentially suggesting that the purpose of fines is to deter bad conduct and "If three fines haven’t done the job, then fines are not going to work and the board must either stop wasting its time on enforcement attempts for this violation, or move on to injunctive relief.".

I have a different take on fining for repeat violations. I do agree that it is an important subject. I take a different approach because I believe that volunteer board members should not have to be parents, reminding their owners who are acting like irresponsible or spiteful "children" again and again and again that there are ramifications to bad behavior.

So, I thought I would write and give my take on fining for repeat or continuing violations ... without the need for multiple hearings.

My position is that it is appropriate for HOA and Condo Association Boards to impose multiple fines for bad behavior without having multiple hearings. I suggest specifically addressing the ramifications of reoccurring and/or continuing violations in multiple formats, and the more the better, ... at the least, (1) in the fine policy, (2) in the letter to the owner who is subject to disciplinary action, (3) in the hearing, and (4) in writing in the hearing decision letter to the owner. That provides at least 4 opportunities for an owner who is subject to the fines to understand that the conduct cannot continue without repercussions!

I recommend the following theme be included in all 4 venues: “Continuing and/or re-occurring fines may be imposed for continuing or re-occurring violations of the same or similar nature.” (Of course, the final hearing decision letter would say "A fine will be imposed each time the violation noted below is repeated [or each day that the violation continues, or for ongoing nuisances like loud music plus other loud disturbances - each time a loud disturbance from your unit occurs, among those noted below].

Does that satisfy any potential "due process" requirements (if in fact they exist - there is a whole other debate on how far "due process" invades HOAs and Condo Associations since they are not governmental agencies). I think "yes".

With 4 notices in the least (and 5 or more if explanatory warning letters are sent, which I believe are a very good idea, prior to the pre-hearing notice letter) that continuing or re-occurring violations will subject them to continuing or re-occurring fines, what excuse does the owner have for not correcting the conduct? As far as I am concerned, this way of dealing with the continuing and re-occurring bad conduct constitutes reasonable due process.

I mean, how many times should you have to take time out of your life and money out of the association coffers to "remind" someone ...

Not park resident vehicles in guest parking spaces
Not let your dog bark all day and night
Not let your guests create a disturbance at the pool such that others cannot enjoy it
Not disrupt an association meeting
Not let your children vandalize property or throw rocks and debris at passing cars
Not to leave the dog poop behind for others to step in

I could go on and on ... but 4 warnings should be due process enough for any continuing OR re-occurring similarly offensive behavior. And, yes, I know that fines are hard to collect; however, if a board wants to, at any time, it can go to small claims court to enforce the fines, and if it does not want to expend the time or money to do that, remember that if the fines letters are in the file, they and the total fines due can be presented with any escrow demand that might come through from sale or refinance of the property.

So - there are ways to make life a bit easier if you are a board member, and ways to engender more accountability if you are an owner who (or whose tenants) are habitual rules violators.

Just my "two cents worth" on the subject!

And for the other "98 cents" worth, visit the California Condo Guru where you will find free articles on enforcement, FYIs on fines, hearings, and adoption requirements for new rules and rule modifications, and best of all, incredibly useful (and affordable) Primers. Be sure to peruse the Publications and/or the Webstore to find the set of Enforcement Primers which were written to assist boards in formulating enforcement policies and practices that work. You will find a series of 5 Enforcement Primers that cover basic rule setting and enforcement, sample forms and letters, and for everyone who encounters problematic neighbors or violators, advanced Primers on Noise and Nuisance issues, Neighbor to Neighbor disputes, and Parking and Towing matters. It is my belief that success in enforcement comes through organized, professional and business-like handling of these matters, combined with good efforts to engender cooperation, communication, and peer pressure as part of the process of getting owners to conform voluntarily with the rules and regulations of the association. You will recognize that as a recurring theme throughout the tools I produce for the benefit of boards, owners, managers, association vendors and anyone who deals with home owner and condominium owner associations.

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.

The downside is that many people forego proper web or internet etiquite, forget their manners, whack off a message without thinking about it before hitting send, develop a contrary persona behind the shield of the computer, and/or fail to think before acting, and sometimes a chat line can become a really toxic, devisive thing for a homeowners association. And enforcing rules on posts can become a real nightmare. So think carefully before starting one. And, below is a thoughtful question from an owner who started a "google online group" for owners in the complex, and now is grappling with what parameters might be important if this owner gets on the board. Here are the comments and questions this person has already identified:

"I started a google group (email list) that homeowners can subscribe to so they can share concerns with other homeowners. Since I'll be joining the board of directors soon, I don't want to give up the ability to listen to and reply to homeowner concerns. Can I still participate in this email group in my capacity as a homeowner? Can I just preface comments with a disclaimer that I am speaking as an independent homeowner and my opinions do not represent the position of the board in any way? Is there any way I can maintain my participation in this group without violating my obligations as a board member?"

The person has answered their own question to some degree. Board members like owners can participate in the online chat group; however, there are many considerations. Attempting to speak "as a homeowner" rather than a "board member" is fine, again, in theory. But think about it - how do you illustrate which hat you are wearing? Perhaps use the tagline, "Joe Blow, speaking as a homeowner and not a board member"?

That is sure to confuse the participants. They may be asking: "Why the byline - is the person at odds with the board? Is there something wrong?"

And think about it - if a director is in the minority of like thinkers on the board and does not agree with decisions being made by the board, and publishes their views "as a homeowner and not a board member", it can undermine the board's ability to gain community consensus on important decisions. A board member certainly has a right to disagree with and debate proposed actions of the Board and vote against them. But a "debate" among board members at a board meeting is different than a one-sided "debate" in a chat room. Not everyone who counts is there to balance the tables and keep matters under control.

In my experience (of course I usually get the call when a chat line is out of control), the most vocal participants usually are people who really want to cause trouble or specifically want to undermine the Board decisions. And they are not rational or "nice" about it. And once the majority of the board has approved an action, anything a minority or dissident board member does or says on the chat line to undermine that action is - arguably - contrary to the best interests of the group as a whole. This is not a problem for an owner in terms of fiduciary duty (although it may raise other issues such as defamation or misrepresentation of information), but it is a big problem for a board member - because a board member has a fiduciary duty which means a duty to put the interests of the group ahead of his or her own interests or those of any individual owner.

One way a board can help if the HOA or Condo Association has a chat line is to adopt a policy regarding its use. If an owner starts it, however, regulating it becomes more difficult. If a chat line gets out of hand, there are measures a board could take to exercise "damage control."

However, I won't go into those unless you want to seek a paid consultation because I would want more information on any particular situation before proposing a remedy or "damage control" advice.

As to the question at hand, if board members are going to participate in HOA or Condo chat lines, I believe a proper and legal adoption of a policy of conduct would at least be advisable, one that allows board members to participate in a chat line so long as they do not take action or make comments about matters discussed in executive session or that are otherwise confidential, and that they exercise discretion and avoid breaching their fiduciary duty by making comments that would be devisive or that would undermine any actions approved by the Board.

Yes, I know you are going to say it - that is broad, and open to interpretation. Yes it is. And someone will write to me and say: "You can't control free speech rights!"

For more on refining the points to avoid varying interpretations, and to deal with any potential issues of suppression of free speech while at the same time enveloping a plan to deal with inappropriate conduct on the chat line, you would need legal advice because there are several considerations and potential legal issues involved in board members speaking publicly (which would encompass a chat line) including, but not limited to: possible issues arising because of breach of fiduciary duty, defamation, discrimination, violation of free speech rights, breach of privacy, etc.

You can learn alot about board duties including fiduciary duty requirements in the two Board Basic Primers (I and II) available through the Condoguru webstore at the California Condo Guru Website.

Read the article if you are interested and you will see his website noted at the end.

"Earthquake Retrofits: Solutions for Low-Rise, Wood-Framed Condominiums

The floor layouts that make many condominiums and townhouses economical to build and maintain also make them vulnerable to earthquake damage. A typical condo unit has many openings in the front and rear walls: either garage doors, entries, windows, or sliding patio doors. Since there is another unit next door, the side walls cannot have any openings. Large openings (or several smaller openings) in walls reduce the ability of the wall to resist earthquakes forces.

Retrofitting an individual unit with extensive openings in the front and rear walls often requires a heavy steel “moment-frame” in both of those walls. Moment-frames are very costly to fabricate and install. But the same traits that make condominiums economical to build in the first place could (with some creative legal and engineering solutions) also make them more economical to retrofit. From a strict engineering standpoint, it would work just as well to install only two moment-frames in an entire building, not two in every unit. You would still need to tie the whole building to the frames, but this process would be much less expensive than installing moment-frames in every unit. If both the front and rear walls of the building need moment-frames, they could be installed in different units; this could allow greater flexibility in construction and lessen the disturbance to occupants.

The above solution would work easily for an apartment building, where the manager could simply say, “Your unit is the one with slightly less storage because of the seismic retrofit frame.” But with condominiums you could run into all sorts of issues—for instance, is an easement required for structural elements that clearly cross property lines? If the moment-frame that strengthens an entire building is within an individual unit, would the association have right-of-entry to perform inspections? Do the owners of the unit with the frame pay less in assessments because they are giving up space? Are they compensated because there will be more disturbance to their unit during construction?

For many homeowner associations, addressing the above issues could allow a much more economical retrofit of a building as a whole versus retrofitting individual units as completely separate entities. Community associations exist to achieve solutions to common problems, so a cooperative solution should be within reach.

Some ideas:
• Talk to your association’s legal counsel: clearly a single building shared by several property owners already has other shared elements such as the roof, possibly fire alarm systems, etc; a common structural system to resist earthquakes is very similar to these.
• Volunteer to have a moment-frame installed in your unit: homeowner associations hardly ever come to unanimous agreement; people who are resistant to retrofitting may be happier to know that their unit will have much less construction disturbance than yours.
• Place bids on how much to compensate units with frames or other retrofit hardware installed: Maybe in your particular building the moment-frame would block off a storage closet in which ever unit receives the frame. How much money would you want in exchange for losing that closet? If you want $2,500 (remember, this closet is gone forever) but your neighbor will accept less than that, then the frame would go in the neighbor’s unit. Many factors could affect how much “compensation” a unit owner would accept. An absentee owner with a unit vacant between tenants might not mind construction disturbance as much as an owner who uses their unit for a home business.

Thor Matteson is a structural engineer with almost 20 years of experience designing houses, multi-family buildings, seismic retrofits for masonry and wood-framed buildings, and many other unique projects. His book, “Wood-Framed Shear Wall Construction—an Illustrated Guide” was published in 2004 by the International Code Council (available at his website, www.shearwalls.com). Mr. Matteson works with associations to make their complexes more earthquake-safe. You can e-mail him at thorm@sti.net. This article should not be used a substitute for professional services or advice for a specific project or property."

Question/Observation: "I, for one, can't understand why multiple lawyers would advise [our management company] not to put minutes on websites, when minutes are supposed to be (by law) available to all HOA members."

My response: The reason for that kind of advice being commonly circulated is that (we) lawyers have seen many sets of minutes that contain potentially harmful information - namely, too much information - usually about discussions that took place or statements about members, etc., that are or can be harmful to the association in some way. Minutes are not part of public records so they are private to the association.

Naturally, it is good to have them so readily available for the reason of being accessible to owners who want to keep up with the business of the association. But they can be damaging if poorly written or if they contain any information that could be perceived as defamatory, very personal to an owner (privacy issue), or confidential and executive or attorney-client privileged and that kind of thing.

It is advisable to either (1) password protect websites (which can be like handing out pool keys, their reach sometimes extends far beyond what was intended), or (2) Take great care to stick to posting information that would be otherwise subject to public review, such as pictures, recorded filed documents, basic information given to realtors about the community, etc. If you post board members names and numbers, comments from owners, discussion groups etc., watch out for trouble!

I once - in searching my own name on the internet - was linked to an HOA website where executive session minutes were posted discussing topics subject to an attorney-client privileged matter and my name came up through a statement by the manager, included in the minutes, about an article I had written. Proper credit was given for the article, but I am sure the attorney for the Association was not happy about such accessibility to private and very confidential information. Ouch for that HOA!!

I have been working to improve my internet and web presence for the past several years mainly with the goal of reaching more and more folks who just need more and more information about HOA and condo living and the law, and to lessen my need to travel to clients. I owe a lot of my successes to a person I met a few years ago when I attended a simple web marketing seminar which lead to starting a blog and then, last year, starting an informative web E-Newsletter. These two tools alone have extended my reach from a few hundred contacts to several thousand.

If you are looking for a resource and vendor who "knows their stuff" in this arena, and who makes services, classes, and educational tools available both "in person" through seminars, and "on the web" with web meetings, then I want to share my resource with you. I receive a lot of solicitations from website and internet vendors through my website (http://www.californiacondoguru.com) via email and I know there are lots of web vendors vying for your business right now, probably more than ever.

If you want a personal referral to someone that I know to be honest, smart, experienced, and a valuable asset, I would suggest you contact Greg Elwell. He can make producing an E-news, setting up a website or "twittering" seem simple. And his marketing expertise has proved invaluable to me. Learing a few simple concepts is the way to go in this economy. It is important to stay ahead of the curve.

This is his "information":

WSI Wiki Works provides interactive marketing consulting, programs and services to businesses committed on leveraging the Internet as a major marketing channel for profitable growth. We take a comprehensive approach to align business objectives with proven strategies that will build traffic, generate leads and increase conversions for maximizing our client’s ROI.

WSI Wiki Works' mission is to connect with our clients in a collaborative and purposeful way delivering results that delight and consistently exceed their expectations.
Greg Elwell
WSI Wiki Works
Website: www.wsiwikiworks.com
Email: greg@wsiwikiworks.com

You may want to contact him ... And, you're welcome!

This is the question:

"My condo association has sent me a bill for supposed repairs damage done to the stucco outside our garage. They never sent me a notification of this alleged damage and now they are charging me. When I called the management company to inquire about this issue, she couldn’t even give me a date of the damage. Our units all have the garages in an alley way that is public. Do I have any rights regarding this charge and issue?"

There are many questions that arise:

Does the association have any reliable evidence or reason for believing this owner is responsible? It would be important I believe to let the owner know why you (the association) are charging them - why it is that you (the association) believe that they are responsible.

Do the governing documents (CC&Rs, Bylaws, any other regulations) give the Board authority to charge an owner for repairs? It is important to make sure that the authority to make charges against any owner exists in the documents that regulate the association.

Is there a hearing required before charges can be made? California law does have some hearing requirements before imposing disciplinary action and you can find these on my website at http://www.californiacondoguru.com in the section on FYIs, july 2003. (Enter as a first time visitor or returning visitor and click on FYIs.)

And it is also important to note that the governing documents would describe what kind of development the person lives in. This person characterizes their home as a condo and I have no reason to doubt them. However it is important to note that owners of homes in a planned development (which includes most townhouses) can have more responsibility with regard to repairs, including exterior repairs, than an owner in a condo association.

This blog does not constitute legal advice, it merely raises the types of questions that would come up in an analysis of the question of whether charges to an owner were justified and legally enforceable.