Common SPRING 2011
The professional provider of education, advocacy and resources for Community Associations
Recap
of the
2010 L e g i s l at i v e S e a s o n
FIGHT the blight – Senate Bill 1427 page 10 2010 Annual Awards LUNCHEON & TRADESHOW page 20 LAMDEN does not provide carte blancheC Oprotection M M O N A S Sto E Sassociations S M E N T M A G A Zpage I N E • 34 SPRING
2011
1
2011 EVENT CALENDAR All dates, times and locations subject to change. Please visit our website, www.cai-sd.org, for an updated calendar.
J A NUARY 13-15
20-22
Community Association Law Seminar Las Vegas, NV
1 0-11 Legislative Day at the Capitol Sacramento, CA
PMDP M-100 Course The Essentials of Community Association Management
TBA Annual Educational Conference DoubleTree Hotel Mission Valley TopicsTBA
February 4 Trade Show Legal Update 2011 DoubleTree Hotel, Mission Valley 26
APRIL
Essentials of Community Association Volunteer Leadership – Courtyard by Marriott
M ARCH
2 Morning Educational Program: Earthquake Preparedness Courtyard by Marriott 2 Afternoon Educational Program: Earthquake Preparedness Sheraton, Carlsbad 11 Bowling Tournament Mira Mesa Bowl
MAY
4-7 CAI National Conference Boca Raton, FL
11 Morning Educational Program: ADR/IDR Courtyard by Marriott
J U LY
15 Morning Educational Program: Getting the Most Out of Your CAI Membership Courtyard By Marriott
AUGUST
TBA Day at the Races Del Mar Race Track 26 Trade Show Cybercrime and Embezzlement
SEPTEMBER
TBA CAI San Diego Golf Classic Location TBA
TBA Monte Carlo Night Location TBA
14-18 Large Scale Managers Workshop Seattle, WA
10 Trade Show Going Green in HOAs DoubleTree Hotel Mission Valley
JUNE
23-25 CEO-MC Retreat Salt Lake City, UT
25 CID Law Course Courtyard by Marriott 31-April 1 PMDP M-206 Course – Financial Management
23 Morning Educational Program Employment Law This course is part of a series of programs for experienced managers and management company CEOs Courtyard by Marriott
28 Morning Educational Program Hilton Garden Inn Carlsbad 30 CID Law Course Courtyard by Marriott
2
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
OCTOBER
7 Trade Show New Technology: There’s an App for That! DoubleTree Hotel, Mission Valley 22 Essentials of Community Association Volunteer Leadership Courtyard by Marriott
NOVEMBER
4 Morning Educational Program : Almost Free Legal Advice Courtyard by Marriott TBA Morning Educational Program: Almost Free Legal Advice North County location TBA
D E C E M B E R
1-2 PMDP Course: M-201 Facilities Management
9 Holiday Award Banquet Luncheon & Trade Show DoubleTree Hotel Mission Valley
Features 6
SB 1427 and Maintenance of Foreclosed Properties
BY JEFF FRENCH, ESQ. AND HOLLY AMAYA, ESQ.
12
SB 1221: Facilitating the Non-Judicial Foreclosure Process by Reducing the Potential for Delay
BY RICHARD SALPIETRA, ESQ. AND JEAN-MARIE SALVIA, PCAM
17
CLAC Success Story
BY KIMBERLY LILLEY, CMCA, CIRMS
22
Would You Like E-Mail Addresses With That Membership List?
BY CARRIE TIMKO, ESQ.
30
Do I Really Have to Shrink My House?
BY JAMES R. MCCORMICK, JR.
34
Lamden Does Not Provide Carte Blanche Protection to Associations
BY LAURI CROCE, ESQ.
Departments 2 4
Chapter Event Calendar President’s Message
BY CYNDI KOESTER, PCAM
16 24 26 27
CLAC Donations Honor Roll Newsstand Renewing Members Homeowners Corner: A Case Study – Another Perspective
BY SAM DOLNICK
29 New Members 37 Around San Diego 40 Service Directory Back Cover 2011 Marketing Plan Members
Chapter News 16 20 23 33
October 8 Trade Show December 3 Annual Awards Luncheon October 9 Vistans ROC November 5 Morning Program
COMMON ASSESSMENT MAGAZINE • SPRING 2011
3
Common
President’s Message Full Steam Ahead! 2011 is here and I am pleased to introduce myself as your new Chapter President. I would like to extend my gratitude to Chris Hodge for his leadership this past year. Like Chris, I too have been an active member of CAI since 1980, as an association manager and, for the past 10 years, Cyndi Koester, PCAM, is the Assistant Vice President, Southern California Regional Account Executive for Mutual of Omaha Bank/ CondoCerts. She is the 2011 CAI San Diego Chapter President.
as a Business Partner. It is this experience that will help me, together with our Board of Directors, lead this organization in the coming months. We have a very active year planned and our committee chairs are diligently working with committee members on
fun and exciting events. There are a few changes that have been made this year as well. It has been decided by the board to have a Bowling Tournament on March 11, instead of our Annual Billiards event. In addition, we have added several North County Breakfast/ Education programs. The theme selected for this year is “Unity and Community.” With that thought in mind, our Public Relations Committee is working on outreach projects that we can help to make our own community better. The Chapter has become members of the North San Diego County Association of Realtors to promote a better relationship between homeowner associations and Realtors. We have recently updated our Manager Scholarship Program to promote CAI Designations and Education for Community Managers. We are a very strong Chapter for CLAC and this year – as always – we must stay focused on what they are doing in Sacramento. Watch for the CLAC Quarterly Newsletters and E-Alerts when we need your support. I look forward to serving the membership of the chapter and welcome your involvement and continued support. Here’s to a successful 2011!
4
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
EXECUTIVE COMMITTEE CYNDI KOESTER, PCAM....................................... PRESIDENT Mutual of Omaha Bank LOUISE STETTLER...................................... PRESIDENT ELECT Epsten Grinnell & Howell, APC TINA ROZYCKI, CMCA......................................... TREASURER Curtis Management MARIE DONOVAN................................................ SECRETARY Homeowner CHRIS HODGE, PCAM......................................... EX-OFFICIO Elite Community Management DIRECTORS KERRY BEATTY, PCAM......................Packard Management Group JIM FRAKER, PCAM..........Professional Community Management ELIZABETH FRENCH, ESQ................Green, Bryant & French, LLP ELAINE GOWER............................................................ Homeowner BECKY GROENEWOLD................................................................PCM CO-LEE GREV......................... Pacific Rim Property Management JASON PAYNE......................................Payne Pest Management RICK SALPIETRA, ESQ............. Law Offices of Richard Salpietra KARINA TATUM...........................SD Preferred Property Managers
CHAPTER EXECUTIVE DIRECTOR BARBARA OZENBAUGH, CMP 619-299-1376 MANAGING EDITOR BARBARA OZENBAUGH, CMP 619-299-1376, BARBARA@CAI-SD.ORG NEW & RENEWING ADVERTISING SALES BARBARA OZENBAUGH, CMP 619-299-1376 / BARBARA@CAI-SD.ORG DESIGN & PRODUCTION KRISTINE GAITAN REY ADVERTISING & DESIGN / THE CREATIVE DEPT. 760-746-8700 MAGAZINE EDITORIAL COMMITTEE LAURIE POOLE, ESQ. (CHAIR)............. Peters & Freedman, LLP SAM DOLNICK.......................................................... Homeowner ANY FERRELL........................................................ N.N. Jaeschke LESLEY FINCH............................................Lindsay Management JEFF FRENCH, ESQ....................... Green, Bryant & French, LLP CYNDI KOESTER, PCAM..... Mutual of Omaha Bank/CondoCerts JENNIFER LANDON........................... Allure Total Management KIMBERLY LILLEY, CIRMS........................Berg Insurance Agency BARBARA OZENBAUGH, CMP....... Chapter Executive Director TINA ROZYCKI............................................. Curtis Management JEAN-MARIE SALVIA.................................... Walters Management LOUISE STETTLER......................... Epsten Grinnell & Howell, APC All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Common Assessment Magazine or the Community Associations Institute – San Diego Chapter. Information contained within should not be construed as a recommendation for any course of action regarding financial, legal, accounting or other professional services and should not be relied upon without the consultation of your accountant or attorney. Common Assessment Magazine is the official quarterly publication of the San Diego Chapter of the Community Associations Institute. CAI San Diego Chapter encourages submission of news and articles subject to space limitation and editing. Signed letters to the editor are welcome. All articles submitted for publication become the property of CAI San Diego Chapter. Reproduction of articles or columns published permitted with the following acknowledgement: “Reprinted with permission from Common Assessment Magazine, a publication of the Community Associations Institute San Diego Chapter.” © 2011 CAI - San Diego Chapter
ADVERTISING & CORRESPONDENCE SHOULD BE SENT TO: Common Assessment Magazine CAI - San Diego Chapter 1081 Camino Del Rio South, Suite 207, San Diego, CA 92108 619-299-1376 / fax 619-299-1377 / www.cai-sd.org
COMMON ASSESSMENT MAGAZINE • SPRING 2011
5
6
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
Senate Bill 1427 and Maintenance of Foreclosed Properties
BY JEFF FRENCH, ESQ. & HOLLY AMAYA, ESQ.
S
ince 2008, the Civil Code has
property with an opportunity to be heard,
required property owners to
and allow an opportunity to correct the
maintain vacant residential
violation within thirty days unless a specific
property purchased at a
condition of the property endangers
foreclosure sale or acquired through
public health or safety. However, Civil
foreclosure of a mortgage or deed of
Code Section 2929.3(c) also provides that
trust. However, in the recent real estate
these provisions could not preempt any
downturn, the volume of foreclosures
local ordinance. In other words, cities and
has been so great that maintenance of
other local government entities could
foreclosed properties languished and
elect to fine property owners pursuant to
blighted areas started to appear. In
either local ordinances or by tapping into
response, cities started to go after the
the $1,000 per day mechanism set forth
owners with fines and assessments aimed
in the Civil Code. Armed with the Civil
at getting properties cleaned up.
Code and local ordinances, cities started
Civil Code Section 2929.3 permits a
to aggressively pursue monetary penalties
governmental entity to impose fines of
and fines against owners that failed to
up to $1,000 per day for a maintenance
maintain the foreclosure properties (mainly
violation, but requires that the entity give
banks).
proper notice, provide the owner of the
Senate Bill 1427 (Price), which Continued on page 8
COMMON ASSESSMENT MAGAZINE • SPRING 2011
7
FIGHTING BLIGHT Continued from page 7
corrected. However, it still provides that
passed the Legislature earlier this year
notice is not required if the governmental entity determines that a specific condition
and was signed into law by Governor
of the property threatens public health or
Schwarzenegger on September 30, 2010,
safety.
sought to provide some uniformity to the
The legislation further provides that
due process procedures afforded among
an assessment or lien to recover the
local governments, even if the period
costs of nuisance abatement taken by a
to correct is not the thirty-day period
governmental entity shall not exceed the
mandated by state law. It establishes that
actual and reasonable costs of nuisance
as a matter of state law, a local entity
abatement, and states that a government
must provide notice and an opportunity
entity may not impose an assessment or
to correct maintenance violations.
lien to recover nuisance abatement costs
Specifically, the legislation provides that
unless those costs are adopted by a body of
prior to imposing a fine or penalty for
elected officials at a public hearing. Arguing
failure to maintain a vacant property that
in support of the legislation, Senator Price
is subject to a notice of default, purchased
noted that many local ordinances fail to
at a foreclosure sale, or acquired through
provide adequate notice of violations
foreclosure of a mortgage or deed of trust,
to owners, and maintained that some
a governmental entity must provide the
local government entities may impose
owner of the property with a notice of,
assessments that exceed the actual costs of
and opportunity to correct, a maintenance
abatement.
violation. In contrast to prior law, SB
Early versions of SB 1427 would have
1427 does not impose a time frame on
required cities to adopt a schedule of
the period in which violations must be
nuisance abatement costs so property owners will know the potential cost of failing to maintain properties. It also sought to prohibit cities from imposing liens against properties for nuisance abatement prior to the adoption of this cost schedule at a public hearing. The League of California
Rebuilding Communities n n n n n
Reconstruction Renovations Repairs Maintenance New Construction
Cities opposed the inclusion of these provisions, arguing that abatement measures may take a variety of forms, and thus it would not be feasible for cities to develop a schedule that contemplates every potential cost. In the face of this opposition, Senator Price agreed to remove those provisions. In a position statement regarding the finalized legislation, the California Association of Realtors (CAR) stated that the bill provides necessary clarity and due process regarding assessment and collection of nuisance abatement costs, and noted that “selling the home
Financing Available! Completing community wide projects n within your budget n in the shortest time possible n quality customer service n minimal impact to your residents n
858.792.1500
n
www.delmarpacific.com
CA License #828224
“Serving San Diego, Orange County, the Coachella Valley & the Inland Empire”
to an individual that will maintain the property is the best solution to the blight problem which can devalue homes in a neighborhood.” The net effect of this legislation is to cause cities to jump through a few more hoops when going after nuisance-type properties. As to Continued on page 10
8
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
We provide solutions... to complex Community Association legal issues. If you are involved in the management of a community association, you know that the State and Federal laws that govern associations complicate decision-making and make the conduct of association business challenging. We can help. At Epsten Grinnell & Howell, solving the complexities of community association law is our only business. Our attorneys handle a continuing and varied stream of association legal matters. We collaborate and share our ever-expanding knowledge with each other, and with our clients. This can be a real benefit to your association, as our attorneys are not likely to be starting from square one when faced with your difficult issue.
Call us today… We have a lot of common interests.
800.300.1704 l www.epsten.com San Diego 9980 Carroll Canyon Rd., Suite 200 San Diego, California 92131 858.527.0111 • fax 858.527.1531
Inland Empire 41870 Kalmia St., Suite 160 Murrieta, California 92562 951.461.1181 • fax 951.461.2916
Coachella Valley 44-875 Deep Canyon Rd., Suite 3 Palm Desert, California 92260 760.836.1036 • fax 760.836.1040
COMMON ASSESSMENT MAGAZINE • SPRING 2011
9
FIGHTING BLIGHT Continued from page 8 association efforts to control these same issues, there is no impact on associations other than to slow down some of the cities that have been working hand in hand with associations to go after derelict owners. The new legislation, which was sponsored by CAR and the California Association of Retired People, has been chaptered as new sections 2929.4 and 2929.45 to the Civil Code.
Proud recipient of the SDCAA 2009 & 2010 Mark of Excellence Award
Jeff French, Esq. and Holly Amaya, Esq., are attorneys at Green, Bryant and French, a firm that specializes in homeowner association law.
License No. PPO 15264
Serving Community Associations Since 1983 Landscape Maintenance & Installation Irrigation Services & Water Management Experienced, Certified, Knowledgable Staff CLCA Certified Water Managers Certified Landscape Technicians (CLT) ISA Certified Arborists
phone
800-439-9962 • fax 619-390-0865
www.pacificGreenLandscape.com CA State Contractors License #462677
10
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
Joel M. Kriger, APC • CoMMunity AssoCiAtion lAw Division
Committed to leadership in protecting the rights of clients. Anderson & Kriger, LLP • Annual retainer Program – no Cost Collections – unlimited Phone Calls – Annual Check-up Meeting – Quarterly newsletter – reduced Hourly rates • Fee for service Program – Assessment recovery • CC&r enforcement • Document revisions • opinion letters • Civil litigation
619-589-8800 www.a-khoa.com
COMMON ASSESSMENT MAGAZINE • SPRING 2011
11
Senate Bill 1221 Facilitating the Non-Judicial Foreclosure Process by Reducing the Potential for Delay BY RICHARD SALPIETRA, ESQ., CCAL AND JEAN-MARIE SALVIA, PCAM, CCAM
B
oards of directors are spending an increased amount of time and money to collect the assessments needed to maintain their communities. When all else fails, boards must consider foreclosing on a property
in order to remove a non-paying member and capture the funds needed to keep the lights on. This process is lengthy and leaves little room for error. With one missed deadline, the association may be required to start the process over again, further delaying the collection of assessments from an owner of a distressed property. Fortunately, with the passing of Senate Bill 1221, the risk of missing the deadline associated with recording the Notice of Sale is reduced. However, it is important to keep in mind that the total period of time associated with the foreclosure process does not change.
The Non-Judicial Foreclosure Process As is commonly known, a non-judicial foreclosure is the preferred method used by associations to foreclose on a property when the assessments are not paid. The procedural requirements for non-judicial foreclosures are set forth in the law and are very specific. After specific notices and the filing of a lien, if the homeowner continues to fail to pay his or her assessments, the association files a Notice of Default. For the next three months, there is a redemption period in which the homeowner may attempt to pay the late assessments. If the homeowner is unsuccessful, then a Notice of Sale is recorded and the process culminates in a Trustee’s Sale where the property is sold to the highest bidder. An auctioneer conducts this sale as instructed by the association and reports the results back to the association.
The Impact of SB 1221 Existing law requires that when a homeowner fails to pay his or her common-interest development assessments, the 12
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
association must record a Notice of Default and mail it to the owner. In the case of a non-judicial foreclosure, the association is then required to record a Notice of
WARD & HAGEn LLP
Sale not less than three months after the Notice of Default is filed, stating the time and place of the sale. The purpose of SB 1221 is to alleviate a potential unintended consequence arising from the current law, specifically, a possible delay of the foreclosure sale that could arise from innocent delays in the recording of the Notice of Sale. This is especially important if those delays create technical violations of the non-judicial foreclosure law. This new bill permits the Notice of Sale to be filed up to five days earlier than allowed under current law; however, it does not move the actual sale date of the property or otherwise shorten the foreclosure process. The author of the bill states that prior to the enactment of the current law, SB
Serving HOA Clients Throughout San Diego County Construction Disputes Litigation
HOA General Counsel Insurance Issues
Mediation/Arbitration Collections
Contact: Kirk Yake 440 Stevens Avenue, Suite 350 Solana Beach, California 92075
306, Notices of Sale were required to be published in newspapers with general circulation at least 20 days prior to the sale of the property and recorded with the County Recorder at least 14 days
858.847.0505
www.wardhagen.com
C e l e b r at i n g O u r 3 7 t h Y e a r
prior to the sale. SB 306 conformed these dates so that Notices of Sale must now be published and recorded at least 20 days prior to the sale, but not less than 90 days from the recording of the Notice of Default. The change is intended to give the public and those relying on the recording process as much advance notice
We know the difference between getting the job done
of sales as possible. The problem is that while publication dates can be coordinated very precisely between the association and the newspapers, the recording process is
and getting it done right.
subject to greater opportunity for error. If the recorder closes early on a given day due to budget cutbacks, or if the Notice
Full Service Community Management
of Sale document is delivered to the Recorder’s Office the next day, and not actually recorded until the following day, at no fault of the association, a technical violation of the law can occur. If this happens, the homeowner may successfully
800-227-6225 S a n D i e g o • C h u l a V i S ta • C a r l S b a D • m u r r i e ta
www.waltersmanagement.com
Continued on page 14 COMMON ASSESSMENT MAGAZINE • SPRING 2011
13
SENATE BILL 1221 Continued from page 13
Association Bank Services
challenge the foreclosure process, and the
Specialized Banking Services For Community Associations and Management Professionals
association may have to start the process over. Existing law prohibits the recording of the Notice of Sale until at least three months have passed since the recordation
Operating and Reserve Checking With No Monthly Service Charges Automated Lockbox Services, Online Payments, ACH Business Online Banking Remote Deposit CDARS* Placement Services Association Loans Simplified Association Signature Cards Experienced Association Bankers
of the Notice of Default. The interaction of these two rules leaves the association no room for error. It must record the Notice of Sale no less than 20 days before the sale, and no less than three months after the recording of the Notice of Default. Therefore, if there is a one- or two-day delay in the recording of the Notice of Sale, the foreclosure sale may also have to
Jan Hickenbottom
be delayed or a violation of the law may
PCAM, CCAM Vice President 4301 MacArthur Blvd. Newport Beach, CA 92660 (800) 848-6771
occur. To address this issue, SB 1221 would permit a Notice of Sale to be recorded five days earlier in the process— 85 days after the recording of the Notice of Default— Member FDIC
rather than the existing 90 days. According to the author, those extra five days seek to account for any delays in the recording
www.FirstBankHOA.com
*CDARS is a service mark of Promontory Interfinancial Network, LLC. FDIC Insured up to $50 million per Tax ID.
process. However, the actual sale date may not occur any sooner than allowed by
driven by results & passionate about proaCtive improvements
existing law— to be precise, three months and 20 days after the Notice of Default is filed.
Continued Challenges for Associations While SB 1221 should help reduce timing errors associated with the recording of a Notice of Sale, it does not address a significant problem associated with delinquent owners. There are homeowners who choose to simply give
• landscape maintenance • Water Conservation & management • design & installation • Complete irrigation services • tree & shrub Care • integrated pest management • fertilizer & soil analysis
up and walk away prior to the initiation of a foreclosure. These owners have the misunderstanding that they are not CommerCial landsCape maintenanCe speCialists serving san diego for over 30 years
responsible for assessments once they move out of the property. Moreover, they do not understand that they are personally responsible for their debt; it does not go away when they turn their backs on it. Depending upon the total delinquency in assessments at the time the homeowner
licensed/Certified for smart Controller installation & maintenance
14
619.579.9151 • fax 619.461.0814 www.labahns.com 5000 Thorne Dr., Ste. F • La Mesa, CA 91942
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
vacates the property, foreclosure may not be a viable option. The process could take too long for the association and has no
guarantee that the increasing delinquency will be recovered. Thus, it is important that boards are familiar with all collection options available to them. Boards are encouraged to seek support from their managing agents and legal counsel,
"Why see the generalist when you can see the SPECIALIST ?"
BEST SERVICE
educate homeowners about their personal obligations, and select the best option(s)
BEST PRICE
for collecting the debt. Rick Salpietra is an attorney whose firm is located in Rancho Santa Fe, California. His firm’s emphasis is community association law. He was the President of the San Diego Chapter of CAI in 2003 and 2009, and is currently a board member. He is also a member of CAI’s National Board of Trustees, and member of the College of Community Association Lawyers (CCAL).
Jean-Marie Salvia, CCAM®, PCAM®, is the Regional Manager for the Carlsbad office of Walters Management.
Voted Best In our Class! • DECK COATINGS (MAINTENANCE AND REPAIR) • DECK RECONSTRUCTION (DRY ROT, STUCCO) • BELOW GRADE OR PLANTER WATERPROOFING
OVER 5 million square feet of Deck Coatings and Waterproofing-Installed, Repaired and Rehabilitated
Call: 888-388-WICR (9427) www.wicr.net
Inspector of Elections Services provided by Qualified Legal Professionals. Is your CID complying with California Law?
• Residential, commercial and industrial associations’ elections involve an
• Reduce the stress and workload involved with elections of directors, recalls, amendments to governing documents and special assessment elections.
important legal process that should be handled by an attorney.
The Law Offices of Richard Salpietra has processed over 100,000 ballots in past elections. We handle all aspects of an election as the Inspectors of Elections including interpreting governing documents, creating and mailing all election documents, collecting ballots, conducting the annual or special meeting, tabulating votes and announcing the results.
We have the answers to your legal questions – when you need them.
858.756.2233 • www.salpietra.com COMMON ASSESSMENT MAGAZINE • SPRING 2011
15
SAN DIEGO 2010 CAI-CLAC HONOR ROLL By Sam Dolnick, CAI-CLAC Delegate-at-Large
This is the second year that the CAI-CLAC Honor Roll is being presented. All individuals involved in common interest communities, whether they are associations, homeowners, professionals, managers or business partners who have contributed funds to CAI-CLAC in 2010 on behalf of common interest communities to assure that our voice is heard in the halls of the California legislature are to be congratulated. CAI-CLAC monitors legislation regarding common interest developments (condominiums, planned developments, stock cooperatives and community apartment projects) that the legislators are asked to deliberate and vote upon each year. The San Diego Chapter reached its 2010 goal of $28,528. Thanks to all contributors. Each issue of Common Assessment features the names of the contributors and those individuals responsible for obtaining the contribution. ABSOLUTELY NO FUNDS are given to any political party or to any candidate. All funds are used solely for issue oriented legislation affecting CIDs. However, our legislative advocate must be paid and items like stamps, stationery, phone calls, rent, maintenance of web site and other similar expenses must be paid. Our congratulations and thanks to the following contributors from January 1 to December 3, 2010. 2010 Goal = $28,528
CONGRATULATIONS: GOAL REACHED!!! Andalucia Townhomes HOA Lisa Isaacson AMS CCAM
Ocean Hills Summit HOA Mike Mazur
Anderson & Kriger, Joel Kriger
Ocean Terrace/Spinnaker Ridge Frank Lombard
Association Reserves San Diego LLC Matthew Swain Brookfield HOA, Jim Martin CAI San Diego Chapter Barbara Ozenbaugh, CMP
O’Connell Landscape Main Eric Shephard Pacific Green Landscape Inc. Pacific Western Bank, Ken Carteron
Clean Earth Restorations
Payne Pest Management, Willie Payne
Victoria Cohen
Popular Association Banking
Community Association of Bernardo Heights Becky Groenwold
Restoration Management Company
Coronado Shores Condo Assn #6 Jim Liese CMCA AMS CCAM CMI Sam Dolnick Epsten, Grinnell & Howell, APC Emergency Services Restoration Heather Flores Padron Fenton Grant Mayfield Kaneda & Litt, LLP Genesee Highlands Richard Harman il Palio HOA Lisa Isaacson AMS CCAM Interiors by Design, Geri Musser La Jolla Soledad West HOA Lisa Isaacson AMS CCAM La Mesa Colony HOA, Alicia Lloyd Lake Park Condominium Assn Zelma Hall CMCA Law Offices of Richard Salpietra MC Painting, Lisa Isaacson, AMS, CCAM
Riviera Del Mar Arch. Comm. Corp. Betty-Ray Wilson Rock Springs East COA, Dawn Walters SBS Lien Services, Mitch Willet Seven Oaks Mgmt Corp #4, Gerie Vellios The Missions @ Ivey Ranch, Connie Cain Vermont Villas Condo HOA, Dawn Walters Villa Marbelle HOA, Robert Donaldson Villa Trieste at Del Oro Hills MA Villa Trieste Master Village Park Townhome Corp #3 Walters Management Wells Fargo Bank, Mark Durazo West Park Owners Assn, S. Dale Hess Westturf Landscape Mgmt Wild Rose Ranch CA Woodbridge Estates HOA Lisa Isaacson AMS CCAM
Nautilus General Contractors 16
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
THANK YOU TO OUR OCTOBER 8TH TRADE SHOW EXHIBITORS Westturf Landscape Management Western Towing Wells Fargo US Bank Three Phase Electric Summit Security Steven Smith Landscape, Inc. Smoothstone Construction & Consulting Smith Architects, Inc. Servpro of La Jolla Service Master by Rapid Response S.B.S. Lien Services RSI Roofing Rodent Pest Technologies Restoration Management Company Premier Roofing CA, Inc. Popular Association Banking Payne Pest Management Pacific Western Bank O’Connell Landscape Maintenance New Way Landscape & Tree Service Nautilus General Contractors, Inc. Mutual of Omaha Bank/Condo Certs Mt. Helix Pest & Termite Control, Inc. Master Plumbing and Leak Detection Mailboxes ‘R’ Us Landsystems LaBahn’s Landscaping Interiors: By Design Hersum Construction, Inc. Haney Accountants, Inc. Feinberg Grant Mayfield Kaneda & Litt LLP Epsten Grinnell & Howell APC Empire Community Painting Emercon Construction, Inc. Dunn Edwards Paints Del Mar Pacific General Contractors California West Patrol California Sub-Meters Brinks Services Bob Piva Roofing Bald Eagle Security Services AV Builder Corp Arborwell Animal Pest Management Advanced Painting and Wood Repair
You Made a Difference in 2010! CALIFORNIA LEGISLATIVE ACTION SUCCESS STORY By Kimberly Lilley, CMCA, CIRMS
association (i.e., all of their neighbors), to decide that they would pay $5 toward their obligation, and then be done… that was a bit too much. I was not alone in my angst, however, as the Legislative Action arms of all eight chapters of California’s CAI worked together to send over 900 letters to Brownley to let her know that this kind of bill was not a help at all, but a major financial fiasco for associations state-
I don’t know if you’ve heard, but in 2010 Community Associations
wide. Brownley heard us and gutted the bill; and eventually the bill
Institute (CAI) members from all over California made a huge
died. AB 2502 is the perfect example of how we can (and did!) make
difference in the legislative process, including the impact some
a difference in how the state of California governs associations.
legislation has (or could have had) on associations throughout the state. Let me take you back to a bill called AB 2502 authored by
AB 2016 (authored by Torres) was a bill that CAI sponsored. In other words, we realized there was a need for the bill, got the language for the bill drafted, found an “author” in the legislature,
Brownley. This was initially set up as legislation that would help
and then helped in any way we could as the bill made its way
out homeowners who were in need of payment plans. It also had
through both houses of the legislature (attended hearings, educated
the goal of preventing unethical collections procedures. Not a bad
other legislators about the bill’s
plan, right? The reality of the bill hit, however, when we discovered
impact, etc.). AB 2016 allows
that not only would these “payment plans” have to be discussed
Homeowners’ Associations to
in open session (most likely embarrassing the homeowner who
record a single “blanket”
needed the plan), but the amount of the payment could be anything
request (covering all
the homeowner chose. Anything! As the treasurer on my board I
parcels within the
practically fainted when I found that out. It is hard enough to budget
association) to be
for the current water cost increase, but to add onto that a law that
notified within
would allow a homeowner who owed thousands of dollars to the
Continued on page 18 COMMON ASSESSMENT MAGAZINE • SPRING 2011
17
YOU MADE A DIFFERENCE...
demanding that a form be filed for EACH
stepped in and made a difference in how
Continued from page 17
parcel or lot within an association (and that
an association functions on a day-to-day
meant a fee for each parcel or lot within
basis – for the better.
15 days of foreclosures. This allows
the association), creating a strategic (and
Some other bills that CAI spent time
the association to begin collecting
financial) nightmare for associations. The
tracking, and discussing with legislators,
assessments much more quickly than in
“blanket” adjustment to the law allows
were AB 1793 (Saldana) Mandatory
the past, because the association is able
associations to file just once for all of their
Artificial Turf Approval, AB 1927 (Knight)
to identify where to send the bill, and to
parcels or lots, saving time, money and
Limitations on Rental Restrictions and
whom they should be directing it. The
some sanity as well. AB 2016 passed both
AB 1975 (Fong) Water Sub-Metering.
“blanket” aspect was added with AB
houses and was signed into law by the
With AB 1793 (Saldana), this was an
2016 as a “clean up” to last years’ bill.
governor. It took effect in January 2011.
attempt to expand upon AB 1061 from
Some county recorders offices had been
Once again, with AB 2016, CAI (i.e., you)
the year before. AB 1061 provided that an association cannot disallow low-waterusing plants as an entire class. While the association can determine which plants to allow through their architectural guidelines, they must allow SOME low-water-using plant life in the association. AB 1793 wanted to make approval for artificial turf mandatory. Since each association determines its own “look” (which is part of the reason that unit owners buy into that association) to have the state require mandatory approval of something that is addressed in the association's architectural guidelines seemed to over-step the state’s authority. It was discovered in our
PETERS ATTORNEYS AT LAW
investigations that in addition to the initial
&
problems we had with the bill, there were
FREEDMAN,L.L.P.
quite a few artificial turf products with unhealthy levels of lead, which made mandatory approval of these products a liability nightmare. There was also a
A full service law firm dedicated to representing community associations
Experience you can rely on... People you can trust Encinitas Office
Desert Office
(760) 436-3441
(760) 773-4463
www.hoalaw.com
mail@hoalaw.com
question regarding the impact of run-off from artificial turf that has yet to be fully explored, and the case was made. This bill was vetoed by the governor. AB 1927 (Knight) placed limitations on rental restrictions. It proposed that if an association wanted to limit rentals within their complex they would have to meet some very high quorum requirements that, given today’s apathy at voting time, would be practically impossible to meet. As we are all discovering, high owner-occupancy rates are important in getting loans for the association (among other things), so there is a financially-sound reason to limit rentals. This law would have made
18
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
it practically impossible. Our team of
happy. Thanks to all of the associations who contributed to the California Legislative Action
advocates explained this to the legislators
Committee in 2010 to help us do this amazing work. You are making a difference.
in Sacramento. Our opposition made it
Thanks to all who help make associations in California better places to live!
necessary for the sponsors of the bill to change the language to such an extent
Kimberly Lilley is the Chair of the California Legislative Action Committee Roundtable in San
that any common interest development
Diego, a Delegate to the state-wide Legislative Action Committee and serves on the Executive
that currently existed would no longer be
Committee for state-wide CLAC. She can be reached at Kimberly@berginsurance.com.
affected by the bill, even if it had passed. While it did pass through both houses, it was vetoed by the governor. AB 1975 (Fong) was a bill that you probably never heard about. It was proposed legislation that would require that all associations be sub-metered. Not such a big deal, right? Many associations who aren’t sub-metered WANT to be sub-metered. But here, as Shakespeare might say, is the rub: the association would not be able to recoup the costs of sub-metering from the members of the association. Homeowners are the only possible source of funds to do the submetering! CAI was the ONLY opponent to this bill when it went to hearing. We spoke against it, explained that in the “real” world it would not work as proposed, and it died in the Senate Appropriations Committee. Yet ANOTHER wonderful example of why CAI works so hard to write, track and educate about legislation
Professional. Capable. Friendly.
that impacts associations. So imagine a world without the Legislative Action Committee of the Community Associations Institute… an association would be forced to record 280 separate forms with the county recorder to be notified of foreclosures, forced to pay 280 fees, forced to re-file (and re-pay) 280 times if any of our information changed, it would never be able to get a loan, it would be required to approve any artificial
Year after year our list of satisfied, well-managed communities grows. Our team of accredited, certified community managers offers unparalleled credibility and integrity. Call Curtis Management today for the highest caliber, hardest working professionals to manage your community. Toll Free 877.587.9844.
Just what you’ve been looking for in professional community management. www.curtismanagement.com
turf requests (on the roof… really?), and it would be having perpetual bake sales to try to pay the sub-metering company for all of the work we were required by law to have them do… Sounds like a nightmare. While living in an association may not be “heaven,” it is still “home” and we will do everything we can to keep that home
COMMON ASSESSMENT MAGAZINE • SPRING 2011
19
Thank you to our Award Banquet Exhibitors Able Restoration Animal Pest Management Antac Pest Control Artistic Maintenance Association Reserves San Diego LLC AV Builder Corp Bald Eagle Security Services Berg Insurance Agency Bob Piva Roofing California Sub-Meters Clean Earth Restorations Easyturf, Inc. Emercon Construction Inc. Epsten Grinnell & Howell APC Green Valley Landscape & Maintenance Interiors: By Design Jon Wayne Construction & Consulting JW Cleaning & Restoration LaBahn’s Landscaping Landsystems Mt. Helix Pest & Termite Control, Inc.
Annual Awards Luncheon & Trade Sho
Mutual of Omaha Bank/CondoCerts New Way Landscape & Tree Service O’Connell Landscape Pacific Green Landscape, Inc. Pacific Western Bank Payne Pest Management Popular Association Banking Premier Roofing CA, Inc. PrimeCo Painting, Inc. Pro-Tech Painting Reconstruction Experts ResCom Services, Inc. Restoration Management Company RSI Roofing S.B.S. Lien Services
Emerald Sponsors Bald Eagle Security Services Epsten Grinnell & Howell, APC JW Cleaning & Restoration Restoration Mangagement Company ValleyCrest Landscape Maintenance
San Carlos Cleaning Services, Inc. Service Master by Rapid Response Servpro of La Jolla Sky Security Services Summit Security Transport Data Systems Urban Tree Care, Inc. US Bank Valley Crest Landscape Maintenance Wells Fargo Westturf Landscape Management 20
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
Sapphire Sponsors Anderson & Kriger, Frazee Paint Green Valley Landsc Paul Davis Restorati Peters & Freedman
ow
s LLP
cape & Maintenance, Inc. ion & Remodeling n, LLP
OUTSTANDING COMMITTEE PERSON OF THE YEAR Public Relations Matthew Swain Membership Marie Vasilieff Magazine Tina Rozycki Education Services Shannon Smith Monte Carlo Night Louise Stettler Golf Classic Chris DiNino Billiards Karina Tatum CLAC Lisa Isaacson
2010 CHAPTER AWARD WINNERS RECRUITER OF THE YEAR Tina Rozycki, CMCA Curtis Management COMMITTEE MEMBER OF THE YEAR Jim Fraker, PCAM Billiards Tournament, Public Relations PCM BUSINESS PARTNER OF THE YEAR Shannon Smith Artistic Maintenance COMMUNITY MANAGER OF THE YEAR Karina Tatum SD Preferred Property Managers HOA OF THE YEAR Canyon Woods HOA PRESIDENT’S AWARD Barbara Ozenbaugh, CMP
COMMON ASSESSMENT MAGAZINE • SPRING 2011
21
Would You Like E-Mail Addresses With That Membership List? BY CARRIE M. TIMKO, ESQ.
In Worldmark v. Wyndham Resort Development
Worldmark also claimed that it complied with Corporations Code section 8330 because it provided Miller with a “reasonable
Corporation (2010) 187 Cal.
alternative” to producing the membership list. Worldmark would
App.4th 1017, the Third
have allowed Miller to submit a copy of the documents he wished
District Court of Appeal held
to distribute to the membership, and if Worldmark determined the
that a California non-profit
material to be appropriate, it would have forwarded the documents
mutual benefit corporation
to a mailing house for mailing at Miller’s expense. Worldmark
is required to provide e-mail
later agreed to cover 50% of the cost of mailing. The court found
addresses maintained by
this alternative to be unreasonable, since the cost to Miller would
the corporation in response
have totaled around $1 per member, or $260,000. Moreover, Miller
to a member’s request for a membership list. Worldmark is a California nonprofit mutual benefit corporation owned by over 260,000 members. The corporation owns timeshares across the country. One of Worldmark’s members, Robin Miller, requested that
requested the membership’s e-mail addresses so that his materials could be distributed in time for the annual meeting. Mailing would have taken much longer. Corporations Code section 8330 also governs common interest developments (see Civil Code section 1363(f)), so the Worldmark decision is controlling with regard to homeowner requests for membership lists from an association. However, there are options
Worldmark provide the corporation’s membership with petition
under the Davis-Stirling Act that would restrict homeowners’ access
to amend its bylaws. Worldmark refused Miller’s request, and in
to member e-mail addresses. Civil Code section 1365.2(a)(1)(I)(iii)
response Miller demanded that Worldmark allow him to inspect
allows a homeowner to “opt out” of sharing his name, property
and copy the corporation’s membership records, including e-mail
and mailing address if he notifies the association in writing that he
addresses, so he could distribute his own petition. Worldmark told
would prefer to be contacted by an alternative mailing process that
Miller that he could not have access to the e-mail addresses, and
would qualify as “reasonable” under Corporations Code section
then petitioned the court to set aside Miller’s demand.
8330. Additionally, there is no statutory requirement that member
Worldmark claimed that Miller was not entitled to the
e-mail addresses be maintained by the association. Nevertheless,
membership’s e-mail addresses because there was no statutory
where e-mail addresses are maintained, they are subject to
authority requiring it to provide such information. Further,
membership inspection.
Worldmark was concerned with protecting the privacy of its
So, what’s the bottom line for homeowners associations? Where
membership, and considered its e-mail roster to have “tremendous
an association maintains e-mail addresses to communicate with
commercial value.” California Corporations Code section 8330(a)
its members, such information must be provided to homeowners
(1) provides that unless the corporation provides a “reasonable
requesting a membership list unless the addressee specifically
alternative,” it must allow a member to “inspect and copy the
requests to “opt out.” Associations may also consider offering a
record of all members’ names, addresses and voting rights…”
“reasonable alternative” for mailing owners’ messages, such as
so long as the proper procedures are complied with. Worldmark
sending the e-mail itself.
contended that the term “members’ addresses” did not encompass e-mail addresses. The Court of Appeal disagreed, holding that the language of Corporations Code section 8330 was broad enough to include e-mail addresses.
22
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
Carrie M. Timko, Esq. is an associate attorney with the law firm of Epsten Grinnell & Howell, APC.
CAI ROCKS!
UBM071_Jan26W_SanDiego_4.75x7.5_4C
CAI volunteers were proud to participate in Vistans ROC, an annual event in Vista, where homes are painted and re-landscaped by volunteers. This year’s Vistans ROC (Restore Our Community) was held on Saturday, October 9th, and over 30 homes received an exterior makeover. CAI sponsored one home, and Jim Fraker coordinated the makeover for this house. CAI volunteers included Christy Gramann of Four Season Tree Care, Lisa Sandie and staff from Silverado Management, Shaun Marie Daly and two landscapers of KR Landscape Services, and Dmitriy Todorov of Bald Eagle Security Services, Inc..
One of your most valuable business relationships starts here. Community Association Management isn’t learned overnight. That’s why our relationship managers study the ins and outs of your industry and with that, design customized banking solutions to fit your specific needs. Peace of mind starts with a strong financial partner with award-winning customer service and nearly twenty years of helping businesses like yours grow. To put our HOA Banking expertise to work for you, visit us at HOAbankers.com or call us today. Relationship Manager: Julie Marquez, CTP, 866-679-6764 Jolen Zeroski, CMCA®, 800-669-8659, x4 Mahendra “Sammy” Sami, CTP 877-839-2947 Team Leaders: Pamela Hazard, CMCA®, 800-669-8659, x1 Michelle Hill, 800-669-8659, x2
National Sales: Mickel Graham, PCAM®, 866-210-2333, x1 Industry Manager: Mark Reider, CMCA®, 800-846-5821
HOAbankers.com ©2010 Union Bank, N.A.
COMMON ASSESSMENT MAGAZINE • SPRING 2011
23
NewsStand N E W S F R O M C A I N AT I O N A L Pointe Community Association, Inc., in Boca Raton, FL, will serve as CAI’s 2011 president-elect. Brumfield and Danella will be joined by 12 new or reelected members of the Board of Trustees and 15 newly elected or reelected members of CAI’s three Membership Representation Groups (MRGs). “I’m honored and excited to serve as CAI president, especially during this time of growth and opportunity,” says Brumfield. “There’s much that the board and I are eager to accomplish, and I’m confident we will reach these goals with the help of our dedicated member volunteers and our national and chapter staff. Working together as a team, there is nothing we can’t accomplish on behalf of our members and those who serve and make their
Find it Fast While our website, www.caionline.org, has a search function and site map, a new web page, Find It Fast should help members and others locate top pages on our website, e.g., designations, events, G&PA, specific periodicals, member logos, PMDP courses, address changes and so on. The page also includes hyperlinks for the staff members who are the contacts for the content on those pages, e.g., Sondra Frank for Chapter Contacts. The page is linked on the homepage under Quick Links.
New CAI Leaders Take Office January 1 Steven Y. Brumfield, CMCA, AMS, PCAM, vice president of operations for the National Lifestyle Division of Wentworth Property Management, will begin his one-year term as the 38th national president of Community Associations Institute (CAI) January 1. Headquartered in Eatontown, NJ, Wentworth operates in 14 states. This will be Brumfield’s sixth year on the CAI Board of Trustees. He has also served on the board of directors for CAI’s Pennsylvania and Delaware Valley chapter. His professional experience includes serving as the assistant director of community associations for a nationwide home builder and working for property management firms in Virginia and Florida. Prior to his career in association management, Brumfield spent several years as vice president of a family-owned, custom-home building company. He is a veteran of the United States Marine Corps, having served in Operations Desert Shield and Desert Storm. Kathryn C. Danella, CMCA, LSM, PCAM, manager of Boca 24
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
homes in common-interest communities.” “We’re happy to have someone as knowledgeable and passionate as Steven leading our Board of Trustees as we continue to build on past successes,” says CAI Chief Executive Officer Thomas M. Skiba, CAE. “Beyond his extensive industry experience and great insight, Steven brings people together to achieve common goals. His leadership will prove invaluable to CAI and our 30,000-plus members.” CAI’s 2011 Board of Trustees includes five new members: Victoria A. Cohen, Lake Murray Terrace, San Diego, CA Henry A. Goodman, Esq., Goodman & Shapiro, LLC, Dedham, MA Cathy S. Kelly, CMCA, AMS, PCAM, Ocean Ridge Management, Boynton Beach, FL Lori Loch-Lee, CMCA, AMS, PCAM, Brown Community Management, Mesa, AZ Kelly G. Richardson, Esq., Richardson & Harman, PC, Pasadena, CA The following members return to the 14-member board (*appointed to an additional two-year term): Dennis C. Abbott, CMCA, AMS, PCAM, Abbott Enterprises, Inc., Charlotte, NC Ted S. Herrle, CMCA, AMS, LSM, PCAM, Admiral’s Cove Master Property Owners Association, Jupiter, FL *Julie McGhee Howard, Esq., Weissman, Nowack, Curry & Wilco, PC, Atlanta, GA John McInerney, AMS, LSM, PCAM, Talis Management Group, Inc., AAMC, Raleigh, NC Drew Regitz, AssociationVoice, LLC, Denver, CO Richard Salpietra, Esq., Law Office of Richard Salpietra, Rancho Santa Fe, CA
Michael Wm. Shiflett, InterNeighborhood
reelected):
LLC, Plymouth, MA
Council of Durham, Durham, NC
Drew Regitz (chair), AssociationVoice, LLC,
*Thomas C. Engblom, CMCA, AMS, PCAM,
Denver, CO
Community Association Banc/CondoCerts,
constituencies are represented by the
Henry A. Goodman (chair-elect), Esq.,
Oak Lawn, IL
Association of Professional Community
Goodman & Shapiro, LLC, Dedham, MA
Mickel Graham, PCAM, Union Bank – HOA
Managers (APCM) Board, Business Partners
*Robin L. Barlow, CIRMS, ADP Barlow
Banking Services, Atlanta, GA
Council (BPC) and Community Association
Insurance, Easton, PA
*Bruce R. Gran, CMCA, AMS, PCAM,
Volunteers Committee (CAVC). Members of
Jennifer Brick, Stark & Stark, Lawrenceville,
HomeWiseDocs.com, Scottsdale, AZ
each MRG are elected by CAI members of
NJ
*Thomas W. Larson, RS, Facility
that corresponding membership group.
*Heather L. Cozby, CPA, Cozby & Bruno,
CAI’s three primary member
Continued on page 26
The 2011 APCM Board (*newly elected or reelected): Dennis C. Abbott (chair), CMCA, AMS, PCAM, Abbott Enterprises, Inc., AAMC, Charlotte, NC *Lori Loch-Lee (chair-elect), CMCA, AMS, PCAM, Brown Community Management, Mesa, AZ Pamela D. Bailey, CMCA, AMS, PCAM, Chaparral Management, AAMC, Spring, TX *Kara Cermak, CMCA, AMS, PCAM, Rowell, Inc., Elgin, IL *Michael A. Feltenberger, CMCA, AMS, PCAM, Legum & Norman, Inc., Alexandria,
Who else can say – our account executives know community management backwards and forwards.
VA Staci M. Gelfound, CMCA, AMS, PCAM,
Who else can say – our relationship managers speak your language and understand your business.
Association Integrated Management Services, LLC, Gaithersburg, MD
Who else can say – our technology group has revolutionized the business of association management.
*Barbara Barron Herndon, CMCA, AMS, PCAM, Professional Community Management, San Antonio, TX Ted S. Herrle, CMCA, AMS, LSM, PCAM, Admiral’s Cove Master Property Owners Association, Jupiter, FL *Marge Imfeld, PCAM, I & I Property
ExpEriEncE
Management, Fresno, CA Cathy S. Kelly, CMCA, AMS, PCAM, Ocean
HOA Banking HOA Loans Internet Cash Management Online Payment Systems Dedicated Customer Service
Ridge Management, Boynton Beach, FL Jared McNabb, CMCA, PCAM, Crowninshield Management Corporation, AMO, Peabody, MA Steven Shuey, PCAM, Personalized
Cyndi Koester
Property Management, Cathedral City, CA
AVP / Regional Account Executive
*Gregory G. Smith, CMCA, AMS, PCAM, Springs, CO
949.235.8498 Toll Free 866.800.4656, ext. 7494 cyndi.koester@mutualofomahabank.com
Robin Steinkritz, CMCA, AMS, PCAM,
mutualofomahabank.com
Colorado Association Services, Colorado
Heritage Property Management Services, Inc., Atlanta, GA The 2011 BPC (*newly elected or
Z4746
Community Association Banc is a division of Mutual of Omaha Bank. Member FDIC. Equal Housing Lender CACM Affiliate Member. National Corporate Member of Community Associations Institute.
COMMON ASSESSMENT MAGAZINE • SPRING 2011
Equal Housing Lender
25
NEWSSTAND Continued from page 26
Engineering Associates, P.C., Fairfax, VA *Hayden Miller-Luczka, CMCA, PCAM, Community Association Banc/CondoCerts, Vienna, VA *Caroline Record, Esq., Berman, Sauter,
Renewing Members
Record & Jardim, P.C., Morristown, NJ *Jeffrey Van Grack, Esq., Lerch, Early & Brewer, Chartered, Bethesda, MD The 2011 CAVC (*newly elected or
Thank you to our chapter members that have renewed their CAI membership. We appreciate your continued support and participation in our chapter.
reelected): Michael Wm. Shiflett (chair), InterNeighborhood Council of Durham, Durham, NC Victoria A. Cohen (chair-elect), Lake Murray Terrace, San Diego, CA Marilyn Brainard, Wingfield Springs Community Association, Sparks, NV *Julie Hardy Cramer, Westmont, IL Fred Mellenbruch, Lake Mission Viejo Association, Mission Viejo, CA *Robert Riddick, Moreno Valley, CA *Robert Rothwell, Henderson, NV
26
4-Points Management Agency............... 2004 7 Oaks Mgmt Corp #4............................. 2005 A. McKibbin & Co. . .................................1997 Alante/MCS Insurance Services .............2009 Alliance Association Financial Services . ...............................................2008 Andrew Jager ...........................................2007 Angelic Luna . ...........................................2009 Aquaspecs, Inc. ........................................2001 Arborwell ..................................................2008 Artistic Maintenance, Inc. .......................2005 Association Reserves San Diego, LLC . 2008 Bald Eagle Security Services, Inc. ..........2009 Berg Insurance Agency ...........................2003 Bill Greenlee, CMCA ...............................2009 Bob Piva Roofing .....................................2009 Bonita Vista Community Association ....1982 Bruce Becker, CCAM, CMCA, AMS ............1980 Byron Mettler, CMCA ..............................2009 California West Patrol . ............................2010 CertaPro Painters..................................... 2003 Christy Gonzales ......................................2010 Clean Earth Restorations ........................2008 Coral Tree Plaza Owners Association . ..2008 Daniel Goodrich, CCAM, CMCA, AMS . ............2004 DAPA Janitorial Service ..........................2007 David Abrams . .........................................2005 Debra Weikel, CMCA, AMS, PCAM . ...........2005 Del Mar Pacific General Contractors, Inc. . .....................................1997 Donald Michaels ......................................2006 Dunn-Edwards Corporation ...................2002 Equity Management ................................2010 First California Bank . ...............................2000 Frazee Paints ............................................2009 G.R.G. Management Inc. ........................2009 Green Valley Landscape & Maintenance, Inc. . ...............................2008 Hidden Ridge at Carlsbad ......................2001 HOA Elections of California, Inc. .............2009 Hugh Maynard, CMCA............................ 2005 Ian H. Graham Insurance ........................2009 Janet Wagner, CCAM, CMCA ...............2006 Jessica McKenzie .....................................2010 Jill Bronk ...................................................2005 Jon Wayne Construction & Consulting .1990 Julie Bigelow, PCAM ...............................2009 Karina Tatum............................................. 2006 Katy Camp, CCAM ..................................2008 Kimberly Johnson, CMCA ......................2005 La Mesa Colony Homeowner Assn .......2007 LaBarre/Oksnee Insurance Agency .......2001 Lakeridge Park Condo Association .......2006 Landscapes USA, Inc. ..............................2010 Law Office of Laura Kwiatkowski . ..........1993 Le Parc Chateau .......................................1999 Linda Strom, PCAM .................................2005
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
Lloyd Pest Control ...................................2006 Loren Fisk, CMCA, CCAM ......................2009 Lori Graham, CMCA, AMS, CACM . .......2006 Management Resource Center . ............2009 Marie Donovan ........................................2000 Mario Trejo, AMS .....................................2005 Mary-Anne Monck ...................................2003 MC Builders Corporation .......................2010 Melanie Hudson . .....................................2010 Mike Lutz . .................................................2006 Ned Heiskell, PCAM . ..............................2009 Nicholas Brennan . ...................................2009 Nina Stanley .............................................2008 Orange Coast Building Services, Inc. . ..1999 Pacific Green Landscape, Inc. ................1988 Patricia Ginger.......................................... 2006 Patrick Morrisey, CMCA.......................... 2009 Park West Landscape Maintenance, Inc. ...2010 Prater Architects, Inc. ..............................1998 R&D Pest Services, Inc. ...........................2009 Rancho Del Mar Association ..................2009 Renaissance La Jolla Community Assn ...2002 Richard Johnson ......................................2005 Robin Fennell, CMCA .............................2009 Rolling Hills Ranch Community Assn......1999 Ronald Phipps, CMCA, AMS, LSM, PCAM . ............2011 Roy Palacios Insurance Agency, Inc........2005 S.D. Preferred Property Managers . .......1995 Sabrina Afkhami, CCAM, PCAM.............2006 SCT Reserve Consultants, Inc................. 1994 Seabreeze Management Company, Inc. ...2009 Shannon McMurray, CMCA, AMS .............2008 SHE Manages Properties ........................2005 Silverado Community Management Service .........................1996 Site Plan Advantage ................................1993 Sky Security Services................................ 2008 SmartStreet a Division of RBC Bank . ...2004 Summit Security Guard & Patrol ............2003 Sunrise Pointe Homeowners Assn .........2008 Sunset Hills Terrace HOA .......................2003 Susan Fakhouri .........................................2009 Susan Thrasher .........................................2009 The Golden Girls at MPM Realty ...........2004 Three Phase Electric, Inc. ........................2007 Traci Mays .................................................2010 Tracy McGuffin, CMCA, AMS .................2010 Treebeard Landscape . ............................2010 Varsity Painting .........................................2009 Victoria Cohen .........................................2005 Westwood Townhomes 11-12 Corp.......2009 WICR .........................................................2000 William Cozza . .........................................2010 William Stewart, PCAM ...........................2005 Zelma Hall, CMCA ...................................2005 October/November/December 2010
Homeowners’ Corner
Case Study: Another Perspective
T
he Fall 2010 issue of Common
“review”) was brought to the attention
Assessment, in the Homeowners’
of the management firm and the board
Column, was about a case study
of directors, an “audit” of the financial
of an association that violated many of
statements was immediately made and
the precepts of its governing documents
this new “audit” was mailed to each
and state statutes.
member.
It is interesting to note that
Effect: The management firm and
homeowners from six different
board of directors took their fiduciary
associations called stating that the
duties seriously and when notified of an
article must have referred to their
error took corrective action.
association and wanted verification.
Items 5 & 6 (Membership
These homeowners were wrong, the
Meetings): The governing documents
article did not refer to their associations.
stated that annual membership
However, no calls were received from
meetings shall be held between seven
the homeowners that were members
days prior to seven days after the date
of the association that the case study
of the first annual meeting called by the
described. Is there a lesson to be
Declarant.
learned from this? But there is another perspective on
Effect: In the over twenty years that this association has been in existence,
Readers of this column are encouraged to send their opinions on the above and suggestions for future columns to samdolnick@ juno.com or by phone, 619-697-4854. Sam Dolnick has served as president of his association, is a former homeowner representative of the San Diego Chapter Board of Directors, former homeowner trustee of CAI National, and former director of the CAI Foundation for Community Association Research. He is currently homeowners’ delegate on the California Legislative Action Committee, and president of the Baker/Dolnick Education Foundation.
Guest articles are always welcome!
the original case study — an association
the annual membership meetings
that attempts to its best ability to
were always held within the time limits
do everything correctly, to follow
stated. The owners have the satisfaction
the governing documents and state
of knowing that their attendance was
directors nor the management firm are
statutes; and the board, when notified of
desired and welcomed.
hiring contractors, professionals, friends
errors or misinterpretations, makes every attempt to take corrective action. The format of this article will follow that of the previous case study.
Item 7 (Conflict of Interest): The board members sign a code of conduct which prohibits conflict of interest
or relatives to obtain compensation improperly. Item 8 (Federal/State Income
between vendors and employees. The
Taxes): Federal and State income taxes
Items 1, 2, 3 & 4 (Audit/Review):
management contract has some clauses
are always filed in a timely manner. In
The association’s governing documents
that prohibit a conflict of interest by the
addition FICA taxes are also filed in a
called for a mandatory external audit of
manager as an agent of the association.
timely manner.
the financial statements by a certified
So far, to anyone’s knowledge, there has
public accountant for each fiscal year
never been a violation of the conflict
penalties and interest are not charged
with copies going to the owners. The
of interest portion of the governing
by the governmental agencies and
members received copies of a “review”
documents.
therefore their assessments are used
of the financial statements. When this error, (an “audit” was needed and not a
Effect: The owners have the confidence that neither the board of
Effect: The homeowners know that
wisely. Continued on page 28
COMMON ASSESSMENT MAGAZINE • SPRING 2011
27
HOMEOWNERS' CORNER Continued from page 27
Item 9 (Water Damage/Laundry
Item 10 (Corporate Status): Civil Code 1363.6 Required Filing of Biennial Statement has always been filed in a timely
Machines): Whenever water damage or
manner with the Secretary of State and
water stains on ceilings and walls are
thus the corporate status of the association
reported to management, a work order
has never been suspended. As fees were
is immediately filled out. An employee
also paid no penalties were ever assessed.
comes to the unit, assesses the amount
Effect: Since the corporate status
of damage and whether or not it is the
remains valid the homeowners are
association’s or owner’s responsibility
protected and not placed in jeopardy.
to take corrective action. If it is the
Conclusion: This “A Case Study:
association’s responsibility, repairs are
Another Perspective” is presented to
undertaken.
show that although there are some
The governing documents do not allow
associations that continually violate their
laundry machines in the units. Separate
governing documents and state statutes,
rooms are provided which contain laundry
there are also many associations that are
machines and dryers. Whenever an owner
run efficiently and honestly. These board
requests permission from the board for the
members are aware of their fiduciary
installation of washing machines in the unit,
responsibilities and make every effort to
the request is always denied.
uphold the integrity of their associations.
Effect: The owners are aware that
Homeowners should be alert to the actions
everyone is being treated equally and
their board members are taking and should
the governing documents apply to all
be vigilant in confronting them when the
consistently.
governing documents are not adhered to.
Providing Community Associations with Insurance Solutions BERG INSURANCE AGENCY, INC.
23651 Birtcher Dr., Lake Forest, CA 92630 5055 Avenida Encinas, Suite 100, Carlsbad, CA 92008 800.989.7990 phone 949.586.9877 fax
28
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
New Members Accurate Termite Pest Control ......................................................... 8/2010 Agri Service, Inc. . .............................................................................. 7/2010 Avram Insurance Agency .................................................................. 7/2010 Cheryl Leonard .................................................................................. 7/2010 Community Legal Advisors, Inc. ...................................................... 8/2010 Dan Bradshaw . .................................................................................. 8/2010 Denaire Walker .................................................................................. 9/2010 Frances Fellers ................................................................................... 8/2010 Gail Thompson .................................................................................. 8/2010 JC Plumbing and Heating, Inc. ........................................................ 7/2010 Jennifer Richardson . ......................................................................... 7/2010 JW Cleaning & Restoration .............................................................. 8/2010 Karen Mulholland .............................................................................. 9/2010 Oaks North HOA #2 . ........................................................................ 8/2010 Progressive Security Screens, LLC ................................................... 7/2010 Rosemarie Coley ............................................................................... 9/2010 San Diego Pest Control .................................................................... 9/2010 Sierra Highlands Community Association . ..................................... 8/2010 Smoothstone Construction and Consulting, Inc. ........................... 9/2010 The Home Depot .............................................................................. 9/2010 Tina Canales ...................................................................................... 8/2010 University Towne Square . ................................................................. 7/2010 Valleycrest Landscape Maintenance . .............................................. 8/2010
WoodWizzards/Mazza Construction . .............................................. 8/2010 C & H Gardens Artistic Landscape & Tree Service, Inc................ 10/2010 Christine Natalia .............................................................................. 10/2010 Daniel Jager . ................................................................................... 10/2010 Downstream Services, Inc. . ............................................................ 10/2010 Eugene Alfaro .................................................................................. 12/2010 Erika Taylor ....................................................................................... 11/2010 Focus Property Management, Inc. . ............................................... 10/2010 IronStone Bank ................................................................................ 12/2010 Jennifer Landon, CMCA ................................................................. 10/2010 Joann Pucello .................................................................................. 10/2010 Kristen Barnett ................................................................................. 10/2010 La Cresta Tree Company................................................................ 12/2010 Lifetime Composites, LLC .............................................................. 12/2010 Mediation Solutions ........................................................................ 12/2010 Michael Abdou Insurance Agency . ............................................... 11/2010 NCS Plus, Inc. .................................................................................. 10/2010 Nicole Bargas .................................................................................. 12/2010 Rey Insurance Services, Inc. . .......................................................... 11/2010 Southland Paving, Inc. .................................................................... 11/2010 Sunset Commercial Services, LLC.................................................. 11/2010 Vicki MacHale .................................................................................. 10/2010 Westwood Townhomes 11-12 Corporation .................................. 12/2010
The Only Choice for Your Protection Great Customer Service Accurate Invoicing $2,000,000 Liability Insurance
Damage Replacement Guarantee Real Estate Inspections
Toll Free 877.277.3970 or 858.277.2228 www.paynepestmgmt.com SA N DI E GO • O RA NG E COU NT Y • LOS A NG E LE S
COMMON ASSESSMENT MAGAZINE • SPRING 2011
29
Do I Really Have to My House? SHRINK
BY JAMES R. MCCORMICK, JR.
C
lear Lake Riviera Community Association has architectural guidelines in place that limits the
heights of homes within the development. In March 2005, homeowner Robert Cramer, a general contractor, submitted plans to the association’s architectural committee for construction of a new home. The plans were approved subject to the height restriction, and on each page of the plans the following statement was stamped: “structure height not to exceed 17 feet from control point of lot.” The Cramers were notified of this height restriction several times during the course of their construction and they acknowledged the limitation on the approved plans. During the construction of their home, the Cramers were further notified by the architectural committee that their house deviated from the approved plans and that the completed building would violate the height restriction. Despite this notice, the Cramers proceeded with construction and when the house was completed it exceeded the 17-foot height restriction by nine feet, impinging severely on the views from at least two neighboring homes. Thereafter, the Cramers unsuccessfully requested a variance from the committee seeking a ratification of their violation of the height restriction. In June 2006, the association filed suit against the Cramers requesting declaratory relief of violation of the guidelines and the approved construction plans, an injunction to require compliance with the approved 30
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
CONTACT YOUR PROS FOR A FREE ESTIMATE TODAY 1-800-399-3199 plans and the height restriction, and monetary damages. The trial court found for the association, rejecting the Cramers’
www.pro-techpainting.com
YOUR SINGLE SOURCE FOR ANY PROJECT
various arguments that the height restriction was invalid or unenforceable, and ordered them to bring the house into compliance with the guidelines. The Cramers appealed. On appeal, the Cramers challenged the validity of the height guideline, the validity of the architectural committee, and the grant of injunctive relief. The Appellate Court affirmed the injunctive relief, ultimately determining that the trial court applied appropriate standards of review
• Color Consulting & Scheme Board
• Class B Licensed
• Stucco Repair & Re-texturing
• Online Tracking Service
• Curb & Light Pole Painting
• Wood Inspection & Repair
and that its decision to require compliance
• Pressure Washing & Water Reclamation • Stain & Finish Work
with the height restrictions was proper.
• Wrought-Iron Repair & Repaint
• Elastomeric Coatings • $2,000,000 Liability Insurance • Interest-Free Financing
• Energy Efficient & Green Coatings
• Uniformed Crews
One of Cramers’ arguments was that the architectural guidelines and height restriction were never adopted by a
• Roof Tile & Gutter Cleaning
L OCALLY S ERVING S AN D IEGO
&
• Warranties
O RANGE C OUNTIES
properly constituted committee. The association produced evidence showing that the height restriction guideline had been enforced since at least 1995. The Cramers argued, however, that since there was no direct evidence presented (i.e., minutes of meetings, tabulation of votes, etc.) showing that the guidelines had been adopted, the association could not enforce the guidelines. The Appellate Court found “no legal support” for the Cramers’ claim that the association was required to provide direct, rather than circumstantial, evidence to show that its use restrictions were properly adopted. The Appellate Court further stated that simply because the association was unable to locate a document reflecting the adoption of the guidelines does not necessarily support a finding they were never properly adopted. The Cramers further contended that forcing them to bring their home into compliance with the height restriction was effectively ordering them to “tear down Continued on page 32
COMMON ASSESSMENT MAGAZINE • SPRING 2011
31
What Boards and Managers Can Learn from this Case Boards and managers should document adoption of architectural guidelines and should document how and when owners are advised of these regulations and requirements. Additionally, owners’ violations of the regulations and requirements should always be documented in writing. Owners living by the adage, “seek forgiveness instead of permission” subject themselves to being compelled to expend significant sums bringing their homes into compliance with an association’s architectural guidelines. Assuming all of the facts support such a determination, owners who build or modify their residences in violation of their association’s architectural guidelines cannot after the fact seek a variance based on a claim that it would be too expensive to bring the home into compliance.
DO I REALLY HAVE TO SHRINK MY HOUSE? Continued from page 31
their house,” and that the court should have awarded damages instead. In reviewing whether to uphold the decision of the trial court, the Appellate Court applied a three-part “hardship doctrine” that is applicable to encroachment cases. Under this doctrine, to determine whether to grant or deny an injunction requiring removal of an encroaching structure, three factors must be considered: 1. The defendant must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. 2. Irreparable injury. Unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff will suffer irreparable injury regardless of the injury to defendant. 3. Hardship to defendant. The hardship to defendant from granting the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by defendant. The Appellate Court upheld the injunction order, relying on the trial court’s findings that Mr. Cramer knowingly violated the height regulation and that his actions were not innocent and, at best, negligent. Furthermore, the evidence supported a finding of irreparable harm to the surrounding neighbors such as loss of view, loss of privacy and diminution in value. Importantly, the Appellate Court stated: If the Cramers were permitted to use the fait accompli of their home’s completion to avoid enforcement of the height guideline, the association would effectively lose the ability to enforce any of its guidelines. Members could build their homes in any manner they pleased, arguing afterward in response to an action to enforce the guidelines that compliance
32
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
ssl_CAI_0210:Layout 1
would be unreasonably expensive. Evidence presented by the Cramers’ expert showed that the house could be
1/19/10
10:23 AM
Page 1
Improving more than just your property.
brought into compliance for approximately $200,000. The Appellate Court found that the economic damage to Cramers of $200,000 was not grossly disproportionate to the $75,000 in diminished value of one of the surrounding homes and the loss of value to the other homes and other damages difficult to quantify.
S TEVEN S MITH L ANDSCAPE I NC .
On the basis of the record before it, the Appellate Court determined that the trial court had not abused its discretion in directing the Cramers to bring their home into compliance with the height restriction.
James R. McCormick, Jr. is a partner with the law firm of Peters & Freedman, LLP, with offices in Encinitas and Palm Desert and can be reached at jmccormick@ hoalaw.com.
From installation to maintenance, Steven Smith Landscape Inc. provides every landscape need. Specializing in HOA landscape maintenance, we improve curb appeal and enhance your overall HOA experience. In partnership with management and the Association, we bring clear, concise communication, quick response and project satisfaction. For your larger landscape needs, our full service construction division can meet your needs. Our reference list includes Poway Unified School District, City of Escondido, City of Santee, City of San Marcos and U.C.S.D. Call Today For A Professional Proposal
760/745.9916
Lic No. 456160
Thank you to Our November 5 Morning Program Sponsors Epsten Grinnell & Howell, APC Master Plumbing & Leak Detection Mutual of Omaha/CondoCerts Peters & Freedman, LLP Popular Association Banking Restoration Management Company
COMMON ASSESSMENT MAGAZINE • SPRING 2011
33
Lamden Does Not Provide Carte Blanche Protection to Associations BY LAURI CROCE, ESQ.
T
he rule of judicial deference announced by the Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowners
Association (1999) 21 Cal.4th 249 (Lamden) has been used for the past decade by association boards throughout California as a shield against liability for negligence and good faith mistakes detrimentally affecting homeowners. Division Three (Orange County) of the Fourth Appellate District of the California Court of Appeal explains in Affan v. Portofino Cove Homeowners Association (2010) 189 Cal.App.4th (Portofino Cove), that Lamden is not the super-shield some boards would like to believe it to be. It is necessary to recount the specific facts of the Portofino Cove case in detail to understand the decision’s importance. For some ten years the board ignored its maintenance obligations with respect to common area plumbing including sewer and drain lines servicing a three story stacked condominium building situated over an underground parking garage. The Affans purchased their Portofino Cove condominium in 1986 as a vacation home and suffered sewage back-ups into their kitchen sink and the sink and bathtub in the master bathroom six times over a nine-year span. They made a written complaint to the association and its management company, but their complaint did not result in a remedy of the situation. The Portofino Cove association changed managing agents in 2004 to Huntington West 34
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
Properties (Huntington), also a defendant
its failure to prevent the sewage eruption
in the lawsuit. In 2005, the Affans again
and provide for a complete repair of the
complained about the very chronic situation
unit.
of sewage backing up into their unit, and
After a bench trial, the trial court found
Huntington finally addressed the issue
in favor of the association without even
after gaining the board’s approval to do
making a determination on the elements
so. Unfortunately, the plumber’s attempt
of negligence or breach of the CC&Rs,
to jet-clean the mainline resulted in a
despite compelling expert testimony of
massive sewage eruption into the Affans’
each. The trial court simply stated that the
condominium, rendering it uninhabitable.
judicial deference rule of Lamden meant
The association hired an emergency clean-
the association and Huntington were not
up company to perform the necessary
negligent and did not breach the CC&Rs
remediation, but the association neglected
with respect to their respective duties to
to restore the Affans’ unit to an undamaged
maintain the sewage system. The trial
condition when the association’s insurers
court also determined, however, that the
became embroiled in a coverage battle. The
association was contractually liable under
Affans had enough, and filed suit against the
the CC&Rs to pay for restoration of the
Portofino Cove Association for negligence,
unit following the sewage eruption. Finally,
private nuisance, and breach of the CC&Rs
the trial court determined there was no
because of its years-long failure to maintain
prevailing party, and therefore each party
the sewer system, and its more recent
was to bear its own attorneys’ fees and costs
failure to restore the damage to the Affans’
of suit.
unit. The Affans also sued Huntington for negligence and private nuisance based on
The Court of Appeal reversed the trial Continued on page 36
COMMON ASSESSMENT MAGAZINE • SPRING 2011
35
Continued from page 35
court on all issues except the issue of the association’s contractual liability to pay to restore the Affans’ condominium. The Court
LAMDEN DOES NOT PROVIDE CARTE BLANCHE PROTECTION TO ASSOCIATIONS
of Appeal emphasized that Lamden is not an automatic protection against liability, and analyzed the Portofino Cove association’s acts and omissions in detail to illustrate its point. First, the Court of Appeal explained that Lamden’s judicial deference rule, under which the court may not substitute its judgment for that of a board making a decision in consultation with experts, in good faith, and in the best interests of the entire community (even if that decision is erroneous), applies only when an actual decision-making process is undertaken and a conscious decision is made. The judicial deference doctrine does not shield an association from liability for ignoring problems: instead, it protects the Association’s good faith decisions to maintain and repair common areas. In Lamden, the Supreme Court recognized the essence of an association’s duty to maintain and repair is a duty to act based on reasoned decision-making. [189 Cal.App.4th 930, 942. Italics original.] The Portofino Cove association failed to act for some ten years demonstrating the opposite of action required for Lamden to apply. Second, the Court of Appeal explained there must be findings of fact made to apply the Lamden judicial deference rule, including findings of a competent investigation, good faith on the part of the
Associated Professional Services The Management Alternative
Providing cost-effective, efficient Accounting Services for: • Self-Managed Homeowners associations • Associations Employing an On-Site Manager • Portfolio Managers
Call Neal Chazin 36
(619) 299-6899
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
board, and an analysis of the best interests of the community. The most important finding missing in this particular case was that of a deliberative process of decisionmaking on the part of the board. Quoting from Lamden, the Court of Appeal stated: Finally, the association did not meet its burden of proving its decision not to engage in maintenance was an exercise of its discretion ... to select among means for
discharging an obligation to maintain and repair common areas. (Ibid.) The record contains no evidence the board selected Aamong means when it responded to each of the Affans’ nine sewage eruptions by simply hiring a plumber to snake their drain. [189 Cal.App.4th 930, 943.] In addition to the foregoing, the Court of Appeal swiftly dispensed with the erroneous conclusion by the trial court regarding Huntington by a terse explanation that Lamden applies only to
Around San Diego The interNational Association of
NALMCO and/or project recognition
Lighting Management Companies
that benefits NALMCO and the lighting
(NALMCO) presented three of its
industry.
members with the Lumina Award. The
The recipients of the 2010 Lumina
Lumina Award is presented for special
Awards included Scott Weiss, CLMC,
merit, recognizing commitment, loyalty
CSLC, President of Three-Phase Electric
and dedication to the leadership of
of Irvine, CA.
associations and not to managing agents. And the Court of Appeal did not even discuss the attorneys’ fees issue. It simply stated that as to the appeal and crossappeal challenging the trial court’s decision not to award attorneys’ fees to either party, the judgment is reversed. 189 Cal.App.4th 930, 945.
18TH ANNUAL
LEGISLATIVE DAY AT THE CAPITOL
The Portofino Cove case is instructive for associations, their lawyers, and community managers. It clarifies the extent and limits of the Supreme Court’s Lamden decision. It provides clear guidance for
APRIL 10-11, 2011
pleading and proving application of Lamden’s judicial deference rule as an affirmative defense. And it illustrates the judiciary’s intolerance for gross mismanagement. Throughout the Portofino Cove decision, the court’s disdain for the reckless series of Portofino Cove boards shirking their responsibilities was palpable. Expert testimony based on investigation undertaken some three years after the Affans filed suit was treated as too little, too late (not to mention that the expert testified the association took the wrong steps in 2005 to address the situation when it finally did do so at Huntington’s urging.) The Court of Appeal did not appear to blame Huntington for the years of neglect by the association preceding its tenure. Rather, Huntington’s fate in the litigation was simply left for retrial. Lauri Croce, Esq., is the Senior Associate with Joel M. Kriger, APC, the Community Association Division of Anderson & Kriger LLP.
CAI California Legislative Action Committee 5355 Parkford Circle, Granite Bay, CA 95746 Phone: (916) 791-4750 caiclac@aol.com www.caicalif.org COMMON ASSESSMENT MAGAZINE • SPRING 2011
37
Service Directory Display advertisers receive a complimentary listing in the Service Directory.
BUILDING MAINTENANCE PROGRAMS ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
Sonnenberg & Company Leonard Sonnenberg................ 858-457-5252 fax 858-457-2211 lens@sonnenbergcpas.com www.sonnenbergcpas.com
Associated Professional Services Neal Chazin......................619-299-6899 x101 fax 619-299-8242 nchazin@apsmanagement.com www.apsmanagement.com
ATTORNEYS
S.H.E. Manages Properties, Inc. Karen Martinez, CCAM ..........................................619-291-6300 x 320 fax 619-291-8300 karen@shemanages.com www.shemanages.com
Anderson & Kriger Janet Wilcox.............................. 619-589-8800 fax 619-464-2600 jwilcox@a-khoa.com www.a-khoa.com
Walters Management Joe Farinelli............................... 858-495-0900 fax 858-495-0909 jfarinelli@waltersmanagement.com www.waltersmanagement.com
Epsten Grinnell & Howell, APC Jon Epsten, Esq........................ 858-527-0111 fax 858-527-1531 jepsten@epsten.com www.epsten.com
Curtis Management Company Patrick S. Campbell, CCAM....... 877-587-9844 fax 858-587-9972 pcampbell@curtismanagement.com www.curtismanagement.com
Fenton Grant Mayfield Kaneda & Litt, LLP Katy Krupp................................. 949-554-0700 fax 949-554-0707 kkrupp@fentongrant.com www.fentongrant.com Greco Traficante Schulz & Brick, APC Peter Schulz............................... 619-234-3660 fax 619-234-0626 pjs@gtlaw.cc www.gtlaw.cc Peters & Freedman, LLP David M. Peters......................... 760-436-3441 fax 760-436-3442 www.hoalaw.com Law Offices of Richard Salpietra Rick Salpietra............................. 858-756-2233 fax 858-759-9938 rsalpietra@salpietra.com www.salpietra.com Ward & Hagen, LLP Kirk Yake..................................... 858-847-0505 fax 858-847-0105 kyake@wardhagen.com www.wardhagen.com
38
Clean Earth Restorations Rachel Roberts.......................... 619-284-4239 fax 619-284-4279 rachel@cleanearthrestorations.com www.cleanearthrestorations.com
FACILITIES ENGINEERING COMMUNITY ASSOCIATION MANAGEMENT
ACCOUNTANTS
EMERGENCY RESTORATION SVCS.
CONSULTING Curtis Management Company Patrick S. Campbell, CCAM....... 877-587-9844 fax 858-587-9972 pcampbell@curtismanagement.com www.curtismanagement.com
CONSTRUCTION MANAGEMENT Sullivan Construction Management Pat Sullivan................................. 619-722-7580 fax 866-306-6804 pat@sullivancm.com
DECKING & DECK COATING ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com WICR, Inc. Kelly Durham............................. 760-327-8641 fax 760-327-8642 kelly@wicr.net www.WICR.net
SPRING 2011 • COMMON ASSESSMENT MAGAZINE
ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
FENCING/GATES Fenceworks, Inc. Tom Barrett................................ 760-724-8131 fax 760-724-2513 tbarrett@fenceworks.us www.fenceworks.us ProTec Building Services, Inc. Julie Villelli................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
FINANCIAL SERVICES Curtis Management Company Patrick S. Campbell, CCAM..... 877-587-9844 fax 858-587-9972 pcampbell@curtismanagement.com www.curtismanagement.com First Bank Jan Hickenbottom.................... 800-848-6771 fax 949-477-0255 Jan.hickenbottom@fbol.com www.FirstBankHOA.com Mutual of Omaha Bank / CondoCerts Cyndi Koester............................ 949-235-8498 fax 888-493-1973 ckoester@cabanc.com www.cabanc.com Pacific Western Bank Ken Carteron............................. 760-432-1335 fax 760-432-1339 kcarteron@pwbonline.com www.pwbonline.com Popular Association Banking Larry Hooper.............................. 714-864-5171 fax 714-864-5190 lhooper@bpop.com www.bpop.com Union Bank of California Michelle Hill............................... 800-669-8659 fax 951-281-1449 michelle.hill@unionbank.com www.unionbank.com
MAINTENANCE & REPAIR ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
GENERAL CONTRACTORS Del Mar Pacific Michael Bruce............................ 858-792-1500 fax 858-792-0076 mbruce@delmarpacific.com www.delmarpacific.com ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
GRAFFITI REMOVAL ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
INSURANCE Berg Insurance Agency Kimberly Lilley, CMCA, CIRMS....800-989-7990 fax 949-586-9877 kimberly@berginsurance.com www.berginsurance.com
JANITORIAL ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
LANDSCAPE MAINTENANCE AND/OR CONSTRUCTION LaBahn’s Landscaping Michael Salsberry...................... 619-579-9151 fax 619-461-0814 msalsberry@labahns.com www.labahns.com Pacific Green Landscape, Inc. Stephanie Lundstrom............... 619-390-9962 fax 619-390-0865 stephanie@pacificgreenlandscape.com www.pacificgreenlandscape.com Steven Smith Landscape Gigi Golden-Smith.................... 760-745-9916 fax 760-745-1982 ggolden@stevensmithlandscape.com www.stevensmithlandscape.com
LANDSCAPE MAINTENANCE AND/OR CONSTRUCTION cont'd Westturf Landscape Heather Collins.......................... 760-650-3120 fax 760-650-3125 heather@westturf.com www.westturf.com
ROOFING Premier Roofing Bill Capito.................................. 619-667-4565 fax 619-667-1281 billc@premierroofingca.com www.premierroofingca.com
SECURITY SERVICES
LIGHTING ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
Bald Eagle Security Dmitriy Todorov......................... 619-230-0022 fax 619-230-6610 dmitriyt@baldeaglesecurity.com www.baldeaglesecurity.com
TOWING PAINTING CONTRACTORS Pro-Tech Painting Chris Cena................................. 858-527-0200 fax 858-527-0220 chris@pro-techpainting.com www.pro-techpainting.com
Western Towing Kathy Tighe................................ 619-297-8697 fax 619-296-2822 denisetb@westerntowing.com www.westerntowing.com
WATER SUBMETERING PEST CONTROL Payne Pest Management Jason Payne............................... 858-277-2228 fax 858-277-2212 jpayne@paynepestmgmt.com www.paynepestmgmt.com
California Sub-Meters Robert Anaya............................. 858-571-8999 fax 858-571-4470 robert@calsubmeter.com www.calsubmeter.com
PLAYGROUND AUDITS & INSPECTIONS ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
RAINGUTTER/DOWNSPOUT CLEANING ProTec Building Services, Inc. Julie Villeli.................................. 858-569-1080 fax 858-569-1088 jvillelli@protecbsi.com www.goprotec.com
RESERVE STUDIES Association Reserves San Diego LLC Matthew Swain, RS................... 619-567-5239 fax 619-568-3564 mswain@reservestudy.com www.reservestudy.com Sonnenberg & Company Leonard Sonnenberg................ 858-457-5252 fax 858-457-2211 lens@sonnenbergcpas.com www.sonnenbergcpas.com
2011 Annual Educational Conference & Trade Show Wednesday, April 6, 2011 DoubleTree Hotel Mission Valley
COMMON ASSESSMENT MAGAZINE • SPRING 2011
39
1081 Camino del Rio South Suite 207 San Diego, CA 92108
CAI-SAN DIEGO Marketing Plan MeMbers
2011 Marketing Plan MeMbers Bronze
PLATINUM
Peters attOrneYs at LaW
&
Freedman
, L.L.P.
GOLD Anderson & Kriger Animal Pest Management Landsystems, Inc. Mutual of Omaha Bank/CondoCerts Park West Landscape Maintenance Inc. Premier Roofing CA, Inc. RSI Roofing Services, Inc. Western Towing
Anderson & Kriger Artistic MAintenAnce AssociAtion reserves sAn diego, LLc Av BuiLder Berg insurAnce Agency cLeAn eArth restorAtions BRONZE eMercon construction FeinBerg grAnt MAyFieLd KAnedA & Litt LLPControl Accurate Termite & ,Pest interiors: By design Arborwell LABAhn’s LAndscAPing Artistic Maintenance LAndsysteMs, inc. Association Reserves San Diego, LLC LAw oFFices oF richArd sALPietrA AV Builder Corp. MAster PLuMBing & LeAK detection Bald Eagle Security Services Mt. heLix Pest And terMite controL Berg Insurance Agency new wAy LAndscAPe & tree service Clean Earth Restorations o’conneLL LAndscAPe Emercon Construction PAciFic green LAndscAPe Fenceworks, Inc. PAtio guys Fenton Grant Mayfield Kanada & Litt, LLP reconstruction exPerts First Bank Association Services rodent Pest technoLogiesFirst California Bank sBs Lien services LaBahn’s Landscaping serviceMAster By rAPid LawresPonse Offices of Richard Salpietra sKy security services Master Plumbing & Leak Detection us BAnK Mt. Helix Pest & Termite Control westturF LAndscAPe MAnAgeMent New Way Landscape & Tree Service
O’Connell Landscape Maintenance Payne Pest Management Personal Touch Cleaning & Maintenance, Inc. Popular Association Banking ProTec Building Services Pro-Tech Painting Reconstruction Experts SBS Lien Services ServPro of La Jolla Sullivan Construction Management Summit Security Union Bank US Bank