By David Swedelson, Esq. Partner and Community Association Attorney at SwedelsonGottlieb

Today, June 14th is Flag Day. So, why not a blog post on flags.

Banner_Banners_on_the_Condo_Board_-_WSJ-300x203I was forwarded an article on flying the American flag at community associations that appeared in the Wall Street Journal which motivated this blog post. According to the article, Flag Day commemorates the adoption in 1777 of the U.S. flag. The article (follow this link) goes on to say that “for condominium dwellers, celebrating could prove challenging. On account of condo by-laws dictating the appearance of units, it isn’t always Yankee Doodle Dandy when members wish to fly the American flag. Courts have addressed disputes of all stripes.” Spoiler alert, and as I will explain below, California has a statute that protects the right of an owner to fly a flag. But there are limits.

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Does your community association have a Membership List Use Policy and Agreement for when it grants a request for the association’s member contact list? In order to limit unrestricted use of the list, it should.

When a homeowner makes a demand for the association’s membership and contact list, aka its mailing list, it does not mean they get a free pass to use the association’s mailing list on an ongoing basis even if the owner was previously given the membership/mailing list for another purpose. That’s not the way the statute is written, and giving carte blanche would really invite abuse. If every owner could just request the membership list once for  a specific purpose, which then enabled them to use it whenever they wanted indefinitely into the future, this would create nuisances and potential privacy concerns for those owners who later opted out of providing their information.

According to Civil Code Section 5225, “A member requesting the membership list shall state the purpose for which the list is requested which purpose shall be reasonably related to the requester’s interest as a member. If the association reasonably believes that the information in the list will be used for another purpose, it may deny the member access to the list. If the request is denied, in any subsequent action brought by the member under Section 5235, the association shall have the burden to prove that the member would have allowed use of the information for purposes unrelated to the member’s interest as a member.” This language, on its face, implies that a member must request to use the membership list each time they wish to make use of it, as the provision of the list requires board approval of such use and the board to make a determination that the use of the list will be association related.

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David C. Swedelson, Esq., CCAL joins Timothy Cline, CRIMS and Tony Menke, CPCU of Cline Insurance to discuss tendering insurance claims for your association, including when you should tender losses to the carrier for various lines of coverage. This is great advice for community association managers and board members alike. It makes a world of difference if you understand your policies, how and when to file insurance claims or put a carrier on notice, and what can happen when you don’t. Catch the podcast here:
https://www.hoashow.org/episode-when-to-tender-claims-to-the-insurance-carrier/

From the Community Association Attorneys at SwedelsonGottlieb.

Screenshot_5_25_21__5_49_PM-300x215Most California community association common area recreational amenities like pools, gyms, and tennis courts remain closed since March 2020, even though some restrictions have lifted. As the number of people who have been vaccinated increases, schools reopen, the state reopens, and more counties are opening throughout California, many associations wonder if it is time to revisit opening their amenities.

Does your community association have a plan? Does your community association need one? The answer is YES! In fact, it is required.

vote-by-acclamation-300x300California community association attorneys, managers and others in the industry have differing opinions on how to properly and legally proceed with uncontested elections — elections in which the number of candidates is less than or equal to the number of board positions needed to be filled.  Prior to 2020 when the election process and procedures were changed, the civil code did not expressly address voting by acclamation. Since 2020, the law has changed, permitting a vote by acclamation in narrow circumstances. Specifically, if an association is over six thousand units. We have heard that some attorneys are telling clients that they can still hold a vote by acclamation if their association has less than 6,000 units. We disagree.

The California Civil Code requires, despite contrary provisions in an association’s governing documents or election rules, that all board member elections, including uncontested elections other than for associations that are 6,000 units or more, be conducted utilizing secret balloting.  Associations must abide by these statutory requirements, including holding an election meeting and counting the ballots even if the number of candidates running is equal to or less than the number of board positions to be filled.

The primary, and perhaps most legally sound reason for abiding by formal procedure requirements is the language found in CA Civil Code 5100, which states that “(n)otwithstanding any other law or provision of the governing documents, elections regarding…election and removal of members of the association board of directors….shall be held by secret ballot in accordance with the procedures set forth in this section.” Surprisingly, however, not all community association attorneys agree that the word “shall” is mandatory, requiring that associations hold an election when, in their opinion, deeming the board voted in by acclamation as appropriate. But, there is strong legal precedent to the contrary and association’s would be remiss to follow this advice.

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APRIL IS FAIR HOUSING MONTH

This April marks the 53rd anniversary of the Civil Rights Act of 1968 (also known as the Fair Housing Act), which “prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin, [and] sex” written by Senator Edward Brooke, the first African American popularly elected to the U.S. Senate.

If you missed SwedelsonGottlieb’s webinar on Civil Rights & Fair Housing in Community Associations, you can catch it here: www.LawForHOAs.com under the “hot topics” videos tab or listen to it on the HOA Show. We discuss the history, current events and the seemingly never-ending challenges that we still face today.

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Sandra L. Gottlieb, Esq., CCAL and Joan Lewis-Heard, Esq. were featured guests on The HOA Show podcast hosted by Ryan Gesell, CIRMS, CMCA of Cline Insurance Agency. In the episode, they talk about the Civil Rights Movement, the history of the Fair Housing Act and other discrimination thwarting legislation, and the impact on community associations. We hope that you will find inspiration from Civil Rights Activists who fought against segregation and championed Fair Housing, learn what is required when discrimination occurs, and discover the best practices to put in place. Let’s start the conversation of how we can work together as an industry to combat racism in community associations. Listen to the podcast here: https://www.hoashow.org/episode-the-civil-rights-movement-and-its-impact-on-community-associations/

By David Swedelson, Senior Partner and Community Association Attorney at SwedelsonGottlieb

voter_suppression_-_Google_Search-300x189I first heard about voter suppression in law school, where I learned that the United States has a long tradition of threatening voter access. I thought it was a thing of the past. But I have been surprised by recent news stories that tell us that there are real efforts in 2020 to make it harder for some Americans to vote. For example, a Memphis, Tenn., poll worker turned away people wearing Black Lives Matter T-shirts, saying they couldn’t vote. Robocalls warned thousands of Michigan residents that mail-in voting could put their personal information in the hands of debt collectors and police. In Georgia, officials cut polling places by nearly 10%, even as the number of voters surged by nearly 2 million.

Simply stated, voter and candidate suppression is a strategy used to influence an election’s outcome by discouraging or preventing specific groups of people from running as a candidate in an election or voting. Unlike political campaigning, which attempts to change voting behavior through persuasion and organization, activating inactive voters, or registering new supporters; voter suppression attempts to reduce the number of voters who might vote against a candidate or proposition. The tactics of voter suppression range from minor changes to make voting less convenient, physical intimidation, and even physical attacks on prospective voters, which is illegal.

Screenshot_10_22_20__6_17_PM-189x300By David Swedelson, Esq. Senior Partner and Community Association Attorney at SwedelsonGottlieb

We are enduring a serious pandemic and social distancing is the norm. How can community association boards protect the health and safety of the board members, owners, management and others who attend board meetings, while also complying with the technical legalities of open board meetings?

Under California’s Open Meeting Act, association owners have a right to attend, observe and participate at what are supposed to be open board meetings (Cal. Civil Code § 4925). An owner can challenge or seek to nullify board actions taken in violation of the Act by bringing a civil action against the association for injunctive relief, restitution, reasonable attorney’s fees and court costs. The court can also impose a civil penalty of up to $500 for each violation. (Cal. Civil Code § 4955.)

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We have bad news. Despite a lot of lobbying work, the legislature passed, and the Governor signed into law Assembly Bill 3182 (“AB 3182”), which amends Civil Code section 4740 and adds a new section 4741 to the Civil Code. Pursuant to the new section 4741, an owner of a condo, home, lot, or unit in a co-op (a “Separate Interest”) that is part of a common interest development (“CID”) cannot be required to comply with a provision of the CC&Rs, Bylaws or Rules that prohibits or unreasonably restricts the renting or leasing of a Separate Interest, accessory dwelling units (“ADUs”), or junior accessory dwelling unit (“JADUs”) to a renter, tenant or lessee.

The good news is that section 4741 will allow CIDs to adopt or enforce governing document provisions that prohibit transient occupancy or short-term rentals of Separate Interests for thirty (30) days or less.

That was the good news; short and not so sweet. The other bad news is that Section 4741 explicitly prohibits CIDs from:

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