Condo Law in California

QUESTION: Recently, a renter moved in and he smokes everywhere. He leaves cigarette butts everywhere and we can smell the smoke in our units. 99.9% homeowners are non-smokers. Can we ban smoking in the common areas? Can we ban smoking inside units?

ANSWER: Yes to both questions. There is no constitutional right to smoke and most associations already ban smoking in their common areas. There is a growing movement to ban smoking inside owner’s units as well.

City Bans Smoking. The City of Belmont recently passed the toughest anti-smoking law in the state. The ordinance declares secondhand smoke a public nuisance and forbids smoking in apartments, townhouses, and condominiums that share a common floor or ceiling (see Belmont ordinance). Oakland recently extended its outdoor smoking ban to include parks, bus stops and outdoor eating areas, and mulled over a ban on smoking in apartments and condominiums. Calabasas is considering a requirement that all new buildings, including condominiums, be smoke-free.

Court Upholds Ban. Judges are increasingly open to the argument that secondhand smoke is a nuisance akin to loud noise. In Colorado, an association amended its CC&Rs to ban smoking inside units. The restriction was challenged by smokers. The court rejected the smokers’ argument that the restriction exceeded the association’s authority. The judge noted that second-hand smoke is a nuisance and upheld the CC&R amendment as proper and reasonable. Christiansen v. Heritage Hills I

RECOMMENDATION: A simple rule change is sufficient for banning smoking in the common areas. Boards can adopt a simple one-line rule that “Smoking in the common areas is prohibited.” In addition, boards can expand their nuisance policy regarding smoking in the units.

Adrian Adams

Beginning January 1, 2008, board meeting agendas must be posted along with the notice of meeting to the membership. More importantly, boards will not be allowed to discuss or take action on any item not on that agenda.

Exceptions. The legislature included several exceptions to these otherwise strict limits on board discussion and action.

• Residents may speak on any issue, regardless of whether it was listed on the board’s agenda.
• Board members and their agents (including managers) may briefly respond to statements or questions from association members, ask clarifying questions, make brief announcements, or make brief reports on their own activities.
• Boards may refer certain informational matters and administrative tasks to its managers, agents and staff — even if these items were not listed on the agenda.
• Any subject may be discussed and acted upon if there is an emergency, if immediate action is needed on a matter which arose after the agenda was distributed, or if the item was on a recent agenda and was continued to the current meeting.

Adrian Adams

QUESTION: Hi Adrian, How do HOAs elect a board of directors if they do not have a quorum and the governing documents do not dictate what they must do?

ANSWER: Almost all associations have trouble achieving quorum at their annual meetings. Nagging owners is the traditional method for encouraging participation. Some boards are so frustrated by low turnout that they threaten to fine owners who don’t vote (not a good idea).

Eliminate Quorum Requirement. The best approach is to amend your governing documents to eliminate quorum requirements for the election of directors. By eliminating the requirement, board elections would be like all other elections at the municipal, state and federal levels. In other words, elections would be determined by those who are interested enough to vote.

This would eliminate wasted time and money sending out pleas for participation and holding multiple meetings. We have already implemented the changes with some of our clients. The results have been so positive that we are offering a package of amendments at a fixed fee to any association that wants them.

Package of Amendments. For a flat rate of $750 our firm will review your governing documents and prepare amendments plus a ballot to send to your members. The amendments will do the following:

• eliminate quorum requirements for the election of directors;

• eliminate cumulative voting to create more conventional voting, i.e., casting no more than one vote for each candidate–the same election process used in city, state and national elections;

• modify nomination procedures to comply with the new statute;

• make floor nominations optional so elections can be conducted entirely through the mail if associations wish to do so;

• create director qualifications; and

• create 2-year staggered terms for directors to ensure continuity from board to board.

If you are interested in updating your bylaws, contact us for more information.

Adrian Adams

Even if an Association has no employees, it can still have workers compensation liability exposure. In a recent decision, the Court of Appeals held that an Association and its managing agent were both liable to pay workers compensation benefits to an injured worker employed by an uninsured and unlicensed contractor.

Background. The Montana Villas Homeowners Association retained Pegasus Properties as its management company. Pegasus hired Hruby, an unlicensed and uninsured contractor, to install rain gutters on the Association’s common areas. Hruby’s employee, Freddy Aguilera, was sent out to perform the installation work. Unfortunately, on the first day of the job, a rain gutter touched a high voltage electrical wire, severely injuring Aguilera. Aguilera filed a claim for workers compensation benefits against the Association and its management company.

Decision. Since Hruby was an unlicensed and uninsured contractor performing work for the Association, in Heiman v. Workers Compensation Appeals Board the court concluded that both the Association and its management company were the employers of the injured worker, and both were liable to pay him workers compensation benefits.

RECOMMENDATIONS: As this case demonstrates, hiring an unlicensed and uninsured contractor is never a good idea – even if the job is relatively small, and even if the initially low cost of hiring an uninsured/unlicensed contractor is somewhat tempting. If an employee of the unlicensed/uninsured contractor is injured, an otherwise “small job” can end up being very costly. Therefore, associations and their managers should verify that all of their contractors are properly licensed and insured.