Dec 18

QUESTION: The board recently prohibited smoking on patios (our tenants enjoy an occasional cigar). Do my tenants have to abide by this rule even though my lease agreement was signed before the rule was adopted?

ANSWER: Yes, the rule applies to your tenants. The lease agreement between you and your tenant affects rights and obligations between you and your tenant, not the association. You can’t agree with your tenant to impair the rights of a third party, i.e., the association. The board has the right to adopt rules regardless of anything to the contrary in your lease agreement.

Example. If, for example, loose dogs in the common areas were causing problems, the board could adopt a rule that all dogs be on a leash. Existing pet owners (including tenants) could not exempt themselves from the rule because their dogs “ran free” before the rule was adopted.

Nuisance & Safety Issues. For many, cigar smoke is even more offensive than cigarettes. The nuisance provision found in most CC&Rs allows associations to define what activities are a nuisance and then restrict those activities. In addition, there are safety concerns by owners subjected to second-hand smoke, which is widely recognized as carcinogenic. Accordingly, associations can ban smoking even though patios are “exclusive use” common areas. Your tenants will need to forgo their occasional cigar.

PUBLISHING
ELECTION RESULTS

QUESTION: Our association announces not only the winners of the elections but the vote count. That seems an unnecessary embarrassment to candidates. Couldn’t we meet the letter of the law by having the specific count available to all members in the office and only announce the winners’ names?

ANSWER: The vote count can be embarrassing to losing candidates but it still needs to be announced. Refusing to do so may create suspicion that the election was somehow rigged. When municipal, state and federal elections are held, the vote count is always published. The Davis-Stirling Act requires that:

The tabulated results of the election shall be promptly reported to the board of directors of the association and shall be recorded in the minutes of the next meeting of the board of directors and shall be available for review by members of the association. Within 15 days of the election, the board shall publicize the tabulated results of the election in a communication directed to all members. Civil Code §1363.03(g)

The sentence above highlighted in red states that boards “shall” publicize the tabulated results. I think you have to publish the vote count even though it may be embarrassing.

FEEDBACK


Humor. Adrian, I had to email and let you know that I was roaring with laughter while reading this week’s newsletter! Thanks for the comic relief at the absurdity of this business!!! -Barbara P.

Pet Cemetery #1. What happens if the owner of the pet wants to be buried alongside their pet when they die?

RESPONSE: Homeowner dues for eternity.

Pet Cemetery #2. This is THE BEST reading in town. I am HOWLING over the pet burial. -Helene S.

Pet Cemetery #3. After nearly forty years in this industry, this is a new one. Now, I’ll bet there be will some large age-restricted property that will take up this idea and sell plots right on the common! “Offset increase in dues any way we can.” Jim M.

Pet Cemetery #4. I’ve got one to top your pet cemetery. About 5 years ago one of our board members gave permission to the daughter of a homeowner who passed away to bury her ashes in our common area by all the rose bushes the deceased owner had planted. -Mary S.

RESPONSE: “Earth to earth, ashes to ashes, dust to dust.” -Book of Common Prayer (Church of England, 1662). I bet the roses are beautiful.

Controversy #1. Thanks for the humorous questions and answers. I will introduce a motion at our next BOD meeting that requires all to stand when the president arrives. We need a few laughs in the HOA business. -Norm H.

Controversy #2. A wonderfully humorous (and informative) newsletter to read as I review communications from home owners (or is it homeowners?). -John C.

Controversy #3. Don’t forget the perennial issue of “Homeowners” versus “Owners” Association. And is it plural “Owners” or possessive “Owners’”? This stuff is important! -William R.

RESPONSE: Who would have thought?

Inspectors of Election. I read with interest your always-fascinating and informative newsletter. A management company which provides services for compensation to an association does not qualify as an “independent inspector” unless specifically authorized by the Election Rules. Many associations might not have adopted such a specific rule. I would encourage your readers who are not sure about their arrangements to consult with counsel to avoid unpleasant surprises. -Phillip M.

Gym Waiver. I can see an exception to a liability waiver for an exercise room accident. The association has a duty of adequate maintenance of equipment. If negligence were found, the tenant could win. -William H.

Spouses Not on Title. Our HOA bans spouses not on title from attending the annual meeting. As you can guess, its just the tip of the iceberg when it comes to problems caused by the current board’s attitude. -Jean R.

YEAR-END MESSAGE

I’m laying down my pen for the holidays and spending Christmas with family.

Thank you to everyone for the outstanding feedback you’ve given over this past year. Without you the newsletter and Davis-Stirling website would not be what it is today.

I appreciate all the business you sent us in 2011 and look forward to providing legal services to our clients in 2012.

May you and your families have a Merry Christmas, Happy Hanukkah and a healthy and prosperous New Year!

-Adrian J. Adams, Esq

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Dec 04

QUESTION: Is there a legal ruling regarding burial of pet remains in the common areas of an association?

ANSWER: Wow. That’s a new one! I suppose a pet could be buried in the common areas if 67% of the membership approved an exclusive easement per Civil Code §1363.07. But I see potential problems. Does the owner receive the spot in perpetuity or only for as long as he/she resides in the development? Who maintains the grave site (and the vandalism that inevitably occurs)? If the grave is permanent, there should be a recorded covenant with the owner so all future owners of the unit are obligated to maintain the site. If the pet is dug up and goes with the owner when the owner moves (or dies), then a written agreement will suffice.

Pet Cemetery. What happens when everyone wants to bury their pets in the common area? Will the pet cemetery affect property values? I keep thinking of Stephen King’s novel.

GYM LIABILITY WAIVER


Some associations require those who use their common exercise facilities to sign a “hold harmless” agreement or “waiver of liability.” Such agreements were recently held to be valid and enforceable in a landlord-tenant case.

In Lewis Operating Corp. v. Superior Court, a tenant suffered personal injuries while using a treadmill in a common area exercise facility/health club amenity in the apartment complex. The tenant filed a lawsuit, which the landlord argued was without merit because the tenant had signed an agreement to waive all negligence claims arising from the tenant’s use of the health club facilities. The court agreed with the landlord and upheld the waiver:

We conclude that where a landlord chooses to enhance its offering by providing an on-site health club or exercise facility . . . there is no reason why the landlord may not protect itself by requiring the tenant, as a condition of use of the amenity, to execute the same waiver or release of liability that could lawfully be required by the operator of a separate, stand-alone health club or exercise facility.

Gary Kessler, Esq.
Adams Kessler PLC

RECOMMENDATION: Although this case arose within the landlord-tenant context, courts often utilize similar standards when deciding analogous cases involving homeowner associations. Accordingly, boards may wish to consult with legal counsel about whether something similar would be appropriate for their association. To read the case in its entirety, see Lewis Operating Corp. v. Superior Court.

CONTROVERSY


QUESTION: I have yet to find a set of governing documents where the office of president is defined as the “board president.” All governing documents state that the association has a “president” and the board has a “chair(man).” While the association president’s duties frequently include serving as chair(man) at board meetings, the “board” & the officers, including president, are two different entities. Why do professionals keep referring to the “association president” as the “board president”???

ANSWER: You’re right, most refer to the office as “board president.” Even worse, almost no one has the courtesy anymore to address the person as “Madam President” or “Mr. President” and rise when they enter the room. It is quite distressing. The same problem occurs with assessments. Most refer to them as “dues” while purists insist on “assessments.” I’ve seen members come to blows over the issue.

More Controversy. Then there is the controversy over CC&Rs. Some look with disdain on those who call their governing documents “CC&Rs” instead of the more formal “Declaration” (as in Declaration of Covenants, Conditions and Restrictions). And, there is the contentious “homeowners” versus the archaic “titleholders” dispute. And who could forget the hullabaloo over “homeowner associations” verses “homeowners associations”? Is it singular or plural? It makes me want to pick up a sign and join the Occupy Movement.

SPOUSES AT MEETINGS

QUESTION: I am the spouse of an owner. Am I allowed to attend board meetings?

ANSWER: Unless your governing documents state otherwise, only owners (thus, “members”) have a legal right to attend board meetings. Civ. Code §1363.05. Having said that, I have never seen a board adopt a rule excluding spouses from board meetings. A misbehaving spouse can be excluded for disruptive behavior and that is entirely proper. However, a blanket rule banning all non-owner spouses would be a bit much.

OUTVOTED


QUESTION: I live in a 4-unit building. We are all on the board but when it comes to voting the majority always wins. It seems the other three always out-vote me and I have to comply with what they want.

ANSWER: I don’t know how to say this, but that’s how democracies work. Have you thought about voting with your feet?

INSPECTORS OF ELECTION

QUESTION: According to the Davis-Stirling Act, three inspectors are appointed in handling and tabulating election ballots. We have already appointed three inspectors at our last board meeting. The members can mail their ballots to the management company (main inspector) or hand deliver to our association mailbox where it will be collected by our operations manager. Does this make the operations manager an inspector?

ANSWER: Actually, the statute calls for either one or three Inspectors. Civ. Code §1363.03(c)(1). Having ballots delivered to the manager does not make him/her an Inspector. The Davis-Stirling Act allows Inspectors of Election to specify locations where ballots (in sealed envelopes) may be mailed or hand-delivered. Civ. Code §1363.03(e)(2). At the designated meeting date and time, the envelopes are then opened in front of everyone and counted by the Inspector. Civ. Code §1363.03(f).

Adrian J. Adams, Esq

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