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:
From the Community Association Attorneys at SwedelsonGottlieb.
Most 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.
California 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.
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.
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
I 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.
By 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.)
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:
Sandra L. Gottlieb, Esq., CCAL and Tim Cline, CRIMS discuss reopening amenities in the midst of the pandemic, including issues on liability, insurance coverage (or lack their of), worker’s compensation issues, safety, health and welfare, and government orders. This is a hot topic on the minds of many board members and community managers. Catch the podcast here:
From the Community Association Attorneys at SwedelsonGottlieb
When community associations decide to have chemical pesticides or weed-killing herbicides such as Roundup applied, they must provide detailed, written advance notice to homeowners and residents.
Pursuant to Civil Code §4777(b), “an association or its authorized agent that applies any pesticide to a separate interest or to the common area without a licensed pest control operator shall provide the owner and, if applicable, the tenant of an affected separate interest and, if making broadcast applications, or using total release foggers or aerosol sprays, the owner and, if applicable, the tenant in an adjacent separate interest that could reasonably be impacted by the pesticide use with written notice…”