Common Assessment Spring 2010 by CAI San Diego

Common Spring 2010

The professional provider of education, advocacy and resources for Community Associations

C a l i f o r n i a L e g a l U p d at e 2010 Season of compliance pg. 6 AB 474: Conserving water on a BUDGET pg. 14 AnnUAl Awards banquet & trade show pg. 22 C o m m o n A s s e s s m e n t Ma g a z i n e â&#x20AC;˘ S p r i n g 2 0 1 0

2010 Event Calendar All dates, times and locations subject to change. Please visit our website, www.cai-sd.org, for an updated calendar.

J a n u a ry

July

21-23 21-23

PMDP M-100 Course CA Law Seminar – Tucson, AZ

F e b r u ary

Morning Educational Program Getting the Most Out of Your CAI Membership Courtyard By Marriott

August

5 Trade Show DoubleTree Hotel Mission Valley Legal Update 2010 27 Essentials of Community Association Volunteer Leadership

TBA Day at the Races Del Mar 27 Trade Show DoubleTree Hotel Emergency Preparedness

March

Septem ber

3 Morning Educational Program HOA Board Elections Can Be Fun!! 12 Billiards Tournament Jolt ‘n Joes La Mesa 26 CID Law Course Courtyard by Marriott

10 Morning Educational Program Topic TBA 17 CAI San Diego Golf Classic Coronado Golf Club 22-23 PCAM Case Study 22-25 Large Scale Managers Workshop Reston, VA

12 Legislative Day in the Capitol Sacramento, CA 16 Educational Conference & Trade Show DoubleTree Hotel Topics TBA 28-May 1 CAI National Conference Las Vegas, NV

1 CID Law Course Courtyard by Marriott TBA Trade Show Topic & Location TBA 9 Essentials of Community Association Volunteer Leadership 14-15 M-320 – High Rise Management 29 Statewide CAI Law Conference Location TBA

April

M ay 7 Monte Carlo Night Kona Kai Resort 21 Morning Educational Program Topic TBA

Octo ber

No vem ber 5 Morning Educational Program Almost Free Legal Advice Courtyard by Marriott

June

18-19

2 Trade Show Topic TBA DoubleTree Hotel

Dece mber

24-26 CEO-MC Retreat Location TBA

3 Holiday Award Luncheon & Trade Show DoubleTree Hotel Mission Valley

PMDP M-203 Course

Contents Features 6 Season of Compliance

by Lauri Croce, Esq. and

Jamie L. Schwartz, Esq.

7 It’s All About Communication

by James F. Danow, Esq.

8 Strengthening and Expanding the Protection of Water Efficient Landscaping

by Jeffrey A. French, Esq.

18 Potential Cost Impact and Other Effects of SB 407 (Padilla)

by Andrew Felsburg

20 A Smoldering Issue

by Laurie S. Poole, Esq.

38 Mold: How to Prevent It, How to Remediate It

11 November 13 Morning Program

29 2010 CAI Board of Directors

2 Chapter Event Calendar

39 October 2009 Trade Show

4 President’s Message

Chapter News

22 December 11 Annual Awards Banquet & Trade Show

Departments

Page 7

by Chris Hodge, PCAM

27 New and Renewing Members 28 Homeowners Corner – Amending Documents? Items to Consider, Part I

10 Good News for Good Samaritans

by Carrie M. Timko, Esq.

12 The Calderon Act – Still Relevant Today

by Gregory S. Lew, Esq.

14 AB 474 – Conserving Water on a Budget

by Carrie M. Timko, Esq.

by Jonathan Massie, Esq.

16 SB 209: New Transparency in the ADA Litigation Process

by Sam Dolnick

32 Newsstand 34 CLAC Donations Honor Roll 40 Service Directory 42 What’s New in San Diego Back Cover 2010 Marketing Plan Members

Page 22

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presiden t ’ s

m e s s ag e

Common

EXECUTIVE COMMITTEE

Mapping Out the New Year

Chris hodge, pcam.......................................................... PRESIDENT Elite Community Management Cyndi Koester, PCAM............................................. President Elect Community Association Banc Louise stettler......................................................... Vice President Epsten Grinnell & Howell, APC

elcome to the first issue of Common

tina rozycki, CMCA........................................................ treasurer Curtis Management

Assessment for 2010. I am honored

Marie Donovan................................................................secretary Homeowner

to follow in a long list of distinguished

individuals serving as President of the San Diego Chapter of CAI. I am also excited to work with the current Board of Directors. They have elected me to the office of President and I will work hard to

Chris Hodge, PCAM is a Community Association Manager Member who has worked at Elite Community Management for the past 15 years. He holds the designation of PCAM through the Community Association Institute.

improve CAI in San Diego County.

Mr. Hodge is the 2010 President of the CAI San Diego Chapter. He previously served on the Board of Directors for six years and was the Chapter President in 2002. He has served on various committees and is also a director of the Baker/Dolnick Education Foundation.

of membership including education, trade shows and

This year our chapter will need to work on retention of membership as well as recruiting new members to the organization. Please encourage your colleagues to join our chapter so they too, can enjoy the benefits social events. We have great number of committees that work hard to make things happen at CAI. As members who are involved in CAI can tell you, the more you give in time the more rewards you can obtain from this great organization. The Board of Directors is very focused on the education of homeowners and managers, as well as Business Partners in the organization. The Education Committee is continuing to work very hard to design educational events that are timely as well as useful for the entire membership. I know that this year will be successful for CAI due to high quality events that are planned, in addition to the efforts of our members, the Board of Directors and our committees. I look forward to working with you all.

DIRECTORS DAVE ABRAMS.......................Community Association Manager Member Jim Fraker, PCAM...........................Professional Community Management Elizabeth French, Esq................................. Green, Bryant & French, LLP Elaine Gower....................................................................... Homeowner Kimberly Lilley, CMCA, CIRMS....................... Berg Insurance Agency, Inc. JASON PAYNE.................................................. Payne Pest Management Rick Salpietra, ESQ........................... Law Offices of Richard Salpietra Karina Tatum.........................................SD Preferred Property Managers RAY WAITE.............................................................................. Homeowner

CHAPTER Executive DIrector barbara ozenbaugh, CMP 619-299-1376 Managing editor barbara ozenbaugh, CMP 619-299-1376 New & Renewing Advertising sales Barbara Ozenbaugh, CMP 619-299-1376 design & production Kristine GAITAN Rey advertising & design 760-746-8700 Magazine EDITORIAL committee CYNDI Koester, PCAM, CCAM, CHAIR......Community Association Banc kimberly LILLEY................................................ Berg Insurance Agency jim danow, Esq.....................................Epsten Grinnell & Howell, APC Sam Dolnick.................................................................... Homeowner JEFF French, ESQ...................................... Green, Bryant & French, LLP Laurie Poole, ESQ........................................... Peters & Freedman, LLP Barbara ozenbaugh, CMP....................... Chapter Executive Director tina rozycki.........................................................Curtis 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.”

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

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Season of Compliance by Lauri Croce, Esq. and Jamie L. Schwartz, Esq.

New state and federal laws regarding swimming pools in common interest developments will now be enforced. Everyone knows by now about the Virginia Graeme Baker Pool and Spa Safety Act (the “Act”), Title 15 United States Code Sections 8001 B 8008, which requires that public swimming pools and spas be equipped with anti-entrapment main drain covers that comply

with specified ASME/ANSI performance standards. In October 2009, Governor Schwarzenegger signed into law Assembly Bill 1020, which brings California law, Health & Safety Code Sections 18942 (amended), and 116064.1 & 116064.2 (added), into parity with the

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federal Act to require all public pools be equipped with anti-entrapment devices, such as safety vacuum release systems, suction limiting vent systems, gravity drainage systems, and automatic pump shut-off systems. Both the federal and state statutes define a

public pool or spa to include those on the premises of residential common interest developments. Local governmental agencies are charged with enforcement of the law. The California Legislature expressly declared its intent to occupy the whole field of health and safety standards for public swimming pools and to preempt all local health and safety standards relating to public swimming pools. Under the law prior to October 2009, public swimming pools were exempted from requirements that newly constructed pools be equipped with specified safety features, including anti-entrapment grates for drain suction outlets. The new California law would require newly constructed public swimming pools to have at least two main drains per pump that are hydraulically balanced and symmetrically plumbed as specified. All existing public swimming pools must be retrofitted to have anti-entrapment devices or systems that meet ASME/ ANSI or ASTM performance standards. Any existing public swimming pool with a single main drain that is not an unblockable drain will have to meet at least one of the specified standards.

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Interestingly, in June 2009, the San Diego Department of Environmental Health (“DEH”) mailed out a “Pool Supervision Advisory Notice” (“Notice”) to the owners and permittees of all public swimming pools and spas within San Diego County of the responsibility, under California state law, to have all pools under the supervision of a person who is responsible for its operation, maintenance, and bather safety. The Notice appears to usher in active county enforcement of swimming pool regulations in San Diego County after a twenty-five year hiatus, just in time for the DEH to also begin enforcement of California’s new swimming pool safety act requirements. The question that arises, then, as to the liability of the designated Pool Supervisor. The County Counsel’s office for the County of San Diego has unofficially opined upon telephonic inquiry that the County has no intention of holding the Pool Supervisor personally liable for the safety of bathers. If someone is injured in the pool, according to County Counsel, the permit holder (i.e., the homeowners association) could be held liable, but personal liability of the Pool Supervisor is limited to making sure the water is clear, the pumps are operating, and the like. It remains to be seen how the County’s Pool Supervisor regulations will dovetail with the new 2009 swimming pool safety laws. If you have any questions, you can contact the Duty Specialist at the County of San Diego Department of Environmental Health at (619) 338-2379.

It’s All About Communication By James F. Danow, Esq.

Assembly Bill 899, effective January 1, 2010, has three components. The first amends Civil Code Section 1350.7, which permits the association to communicate with a member “electronically” (e.g., email, facsimile, etc.) provided the member has agreed to that form of communication. The amendment now requires that the member provide an “unrevoked consent” (which is not defined or explained). We would deem this requirement to be satisfied by a written consent from the member which specifies the exact type of electronic communication which that member agrees to accept. Once accepted, the association can send all communications to that member electronically, replacing both personal delivery and the mail. The second component (new Civil Code Section 1363.005) is a requirement that the association provide any member who requests it, a copy of what is called the Disclosure Document Index (see below). This index will allow every member to identify the information or documents which must be disclosed on a regular basis by the association. DISCLOSURE DOCUMENTS INDEX ITEM

DESCRIPTION

REFERENCE CODE

Assessment and Reserve Funding Disclosure Summary 1.

(form)

Civil Code Section 1365.2.5

Pro Forma Operating Budget or Pro Forma Operating 2.

Budget Summary

Civil Code Section 1365(a) Civil Code Sections 1365(e) and 1367.1(a)

Assessment Collection Policy

Notice/Assessments and Foreclosure (form)

Civil Code Section1365.1

Insurance Coverage Summary

Civil Code Section 1365(f)

Board Minutes Access

Civil Code Section 1364.05(e) Alternative Dispute Resolution (ADR) Rights 7.

(summary)

Civil Code Section 1369.590

Internal Dispute Resolution (IDR) Rights (summary)

Civil Code Section 1363.850

Architectural Changes Notice

Civil Code Section 1378(c)

10.

Secondary Address Notification Request

Civil Code Section 1367.1(k)

11.

Monetary Penalties Schedule

Civil Code Section 1363(g)

12.

Reserve Funding Plan (summary)

Civil Code Section 1365(b)

13.

Review of Financial Statement

Civil Code Section 1365(c)

14.

Annual Update of Reserve Study

Civil Code Section 1365(a)

Finally, AB899 now requires that the association and Reserve Funding Disclosure Summary (number 1 in the illustration below) includes (1) the interest rate earned on the Association’s reserve funds, and (2) the “assumed” inflation rate used to calculate future major component repair and replacement costs.

Lauri Croce and Jamie Schwartz are attorneys with Anderson & Kriger.

James F. Danow, Esq. is a shareholder with Epsten Grinnell & Howell, APC.

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Strengthening and Expanding the Protection of Water Efficient Landscaping By Jeffrey A. French, Esq.

continuing trend for 2010 is the legislature’s efforts to achieve water conservation through increased regulation of common interest developments. Not all of the proposed water conservation bills became law, but several water conservation minded bills were signed into law by the

Governor this year, including AB1061. AB 1061 repeals current Civil Code section 1353.8 and replaces it with a revised version of almost the same statute. Original section 1353.8 was adopted with the goal of preventing common interest developments from adopting “architectural guidelines” that prohibit

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or have the effect of prohibiting the use of low water plants as a group. However, the application of original section 1353.8 was somewhat limited as it applied only to “architectural guidelines” and not the other governing documents that an association might have. New section 1353.8 has an expanded application as

it applies to all “governing documents” that an association may have, and not just the “architectural guidelines.” Also, the new statute specifically “voids” and makes “unenforceable” any portion of a governing document that prohibits or includes conditions that have the effect of prohibiting the use of low water-using plants as a group. As a concession to the Legislative Action Committee, the legislative lobbying arm of CAI, new section 1353.8 makes it clear that it does not prohibit an association from applying landscaping rules and regulations to an owner’s proposed use of water efficient landscaping. It is just that the application of the rules and regulations cannot run afoul of section 1353.8(a) such that they have the effect of making it problematic to use water saving plants. Nonetheless, associations can still require such things as a written application, neighbor consultation, committee review, written approval, completion within a certain time frame, final inspection and other regulatory mechanisms designed to ensure that the improvements are done consistent with the

governing documents. The bottom line is that new section 1353.8 is a revised version of the former statute that applies to all governing documents, has the effect of voiding any provision of a governing document that violates the statute, and preserves the ability of an association to apply landscaping rules and regulations to proposed water saving landscaping same as any other improvement. The net effect of revised section 1353.8 for most associations should be minimal, as many associations are already cognizant of the critical water issues facing California and recognize that water efficient landscaping is going to become more prevalent in common interest developments as water rates increase and legislation continues to promote, or outright require, its use. Jeff French is an attorney with the law firm of Green Bryant

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Good News for Good Samaritans By Carrie M. Timko, Esq.

If you hadn’t heard, in December 2008, it got a little dicey for people in California who wanted to rescue others in danger.

hat is when the California Supreme Court, in Van Horn v. Watson (2008) 45 Cal.4th 322, ruled that the immunity afforded to “good Samaritans” under California Health and Safety Code section 1799.102 extended only to those persons who rendered emergency 10

“medical” care at the scene of a “medical” emergency. In Van Horn, a woman sued her friend for removing her from a car that had just been involved in an accident (the friend thought the car was about to explode). This removal unfortunately may have worsened the women’s injuries, as she

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became paralyzed. The trial court initially held that the friend’s “rescue” was shielded from liability under Health and Safety Code section 1799.102. The Supreme Court, however, held that nonmedical care, which would include attempting to rescue someone from a potentially explosive vehicle,

did not qualify for statutory immunity. The Van Horn ruling didn’t exactly encourage people to aid those in danger. The Legislature’s answer to Van Horn was AB 83, which amended Health and Safety Code section 1799.102 to provide immunity from

civil damages for any person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency. This immunity extends to medical, law enforcement, and emergency personnel for any act or omission in providing such emergency care, but for everyone else, such immunity is only available to the extent the act or omission does not constitute gross negligence or willful or wanton misconduct. Thanks to AB 83, Californians no longer have to hesitate to provide emergency care to those in need, so long as they do so responsibly. People should no longer have to fear being sued for trying to save someone’s life. Carrie M. Timko is an attorney with Espten Grinnell & Howell, APC in San Diego.

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Still Relevant in the SB 800 World of Construction Defects (AB 927, Recent Revisions to Civil Code §1375.) By Gregory S. Lew, Esq.

alifornia Civil Code §1375 (the Calderon Act) sets forth the dispute resolution procedures and pre-litigation procedural requirements governing the assertion of a claim for construction defects against a builder, developer, or general contractor of a common interest development. As previously drafted, the Calderon Act would have expired as of July 1, 2010. Effective January 1, 2010, however, Assembly

Bill 927 extends the “sunset” or expiration date of the Calderon Act by an additional seven (7) years, through July 1, 2017. Assembly Bill 927 does not effect any substantive changes or impose any additional obligations upon common interest developments or the developers thereof. Assembly Bill 927 simply serves to extend the operative period of The Calderon Act for an additional seven (7) years. As such, Assembly Bill

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927 will have a negligible substantive effect on the pre-litigation dispute resolution process currently provided for by The Calderon Act. Senate Bill 800 (California Civil Code §895, et seq.) differs from the Calderon Act in significant affects. While it provides for an independent claim resolution process utilizing a “dispute resolution facilitator” the Calderon Act primarily facilitates a prelitigation notice process which is engaged in by the

parties before subsequent litigation. In contrast, Senate Bill 800 provides for a developer’s absolute right to repair reported defects, thereby (in theory) enabling the resolution of a claim for construction defects without the necessity of filing a lawsuit against the project developer. In addition, Senate Bill 800 includes express warranties and standards of construction applicable to project components, mandatory maintenance obligations, and defined construction defects. While both Senate Bill 800 and the Calderon Act provide for an outside statute of limitations of ten (10) years, Senate Bill 800 sets forth multiple defect specific warranty periods, some as short as one (1) year from the triggering event.* Senate Bill 800 does not apply to condominium conversions where a structure or structures originally constructed and operated as for example, a hotel, office building, or apartment building are later converted into a condominium project. Furthermore, Senate Bill 800 is limited in its application to residential

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units purchased after January 1, 2003. As the claims resolution process provided for by Senate Bill 800 does not apply to residential units purchased prior to January 1, 2003, a failure to renew the Calderon Act through Assembly Bill 927 would have resulted in a lack of availability of any pre-litigation dispute resolution procedure to the purchasers of residential units purchased prior to January 1, 2003. Due to the statute of limitation (ten years) applicable to construction defect claims, there are still a significant number of condominium projects which are well within their limitation period, and to which Senate Bill 800 does not apply (as they were purchased before January 1, 2003). For example, a condominium project completed on January 1, 2002, will be

within the ten (10) year outside statute of limitation through January 1, 2012, and units therein purchased prior to January 1, 2003, will not be subject to Senate Bill 800. Based on the foregoing, while the number of such projects is obviously decreasing every year (and will cease to exist on or about January 1, 2013) there are still a considerable number of condominium projects which are within the ten (10) year outside statute of limitations and to which Senate Bill 800 does not apply.* In addition, while there is a split of opinion as to whether or not the provisions of The Calderon Act apply to conversion projects, there is no question that the provisions of Senate Bill 800 do not. As such, without the extension of the Calderon Act effected through Senate

Bill 800, after July 1, 2010, there would likewise have been no pre-litigation dispute resolution procedure even arguably available to the to the purchasers of residential units in conversion projects regardless of whether they were completed before or after January 1, 2003. * Please note that the triggering events may vary from case to case and in addition, determination of the applicable statute of limitation and calculation of the expiration of same requires complex legal analysis. The following is provided for informational purposes.

Gregory S. Lew, Esq. is an attorney with Feinberg Grant Mayfield Kaneda & Litt, LLP.

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AB 474 â&#x20AC;&#x201C; Conserving Water on a Budget By Carrie M. Timko, Esq.

AB 474 makes it more cost effective for owners of real property in California to install permanent water efficiency improvements, i.e. equipment that saves water, such as artificial turf, permeable pavement, recycled water plumbing and cisterns. 14

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nder this legislation (which amends Sections 5898.12, 5898.14, 5898.20, 5898.21, 5898.22, 5898.24, 5898.28, and 5898.30 of, and adds to Section 5898.31, the California Streets and Highways Code relating to contractual assessments and water efficiency improvements and California Civil Code section 1102.6b regarding disclosures), public agencies can enter into voluntary contractual assessments with willing property owners to finance the installation of specified water-saving improvements. This applies to those water efficiency improvements that are permanently fixed to residential, commercial, industrial, agricultural or other real property. The voluntary contractual assessments are essentially a lowcost loan meant to encourage property owners to take action to conserve water. If a property owner enters into such an agreement, the assessments, interest and any penalties (for the water efficiency improvements) constitutes a lien against the property on which the improvements are made until they are paid off. A person who wishes to transfer property that is subject to a voluntary contractual assessment for water efficiency improvements must provide additional specified disclosures. AB 474 also requires that the public agency record an instrument creating the voluntary contractual assessment, along with a separate document entitled â&#x20AC;&#x153;Payment of

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SB 209: New Transparency in the ADA Litigation Process By Jonathan D. Massie, Esq.

Although a CID is subject to both State and Federal Fair Housing laws that prevent discriminatory practices, especially where a disabled owner requests an accommodation to existing rules and regulations to allow him or her to better access and use of the facilities.

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hen Congress passed the Americans with Disability Act (â&#x20AC;&#x153;ADAâ&#x20AC;?) in 1990, the intent of the legislature was to ensure that disabled Americans would be able to access public buildings and be treated fairly in the workplace. The intent of the ADA is laudable and necessary. However, as with most legislation, there were unintended negative consequences. As a result of the legislation, a flood of suits were filed, mainly aimed at small businesses alleging violation of the ADA and unfortunately forcing many small business to end operations due to the cost of the litigation and the potential fines and damages. In response to the rise in litigation and the impact on small businesses, in 2008, the California legislature enacted legislation to balance enforcement of disability access laws with an effort to provide relief to businesses that are either in compliance or are attempting to comply with both federal and state disability access laws. SB 1608 created the California Commission on Disability Access, required all inspections relating to permitting, plan checks, or new construction in privately owned buildings to be conducted by a building inspector who is a Certified Access Specialist (CASp), and established a procedure for a business sued for violations of construction-related disability access requirements to request a court-ordered stay and early evaluation conference (EEC) to resolve the complaint (if possible), if the business had been inspected by a CASp. SB 209 is a follow-up bill to address some issues, raised by the Judicial Council and the California Newspaper Publishers Association about the sealing of a CASp report filed with the court by a qualified defendant that were too late for inclusion in the final version of the bill. SB 209 requires that any inspection report prepared by a Certified Access Specialist (CASp) to the court in an action involving alleged violations

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of disability access laws to trigger an early evaluation conference, to remain confidential rather than be under seal and subject to protective orders of the court. The bill would specify who would have access to the CASp report and when confidentiality of the report would terminate. You may be asking yourself why include an article relating to legislation impacting mostly small business and not directly related to Common Interest Developments (“CIDs”) in a magazine that is focused on CID issues? Actually, there are lessons to be learned from this legislation. It is important to remember that the Adults with Disability Act (“ADA”) protect members of the public against handicap discrimination by a “place

of public accommodation.” A “place of public accommodation” includes a facility operated by a private entity that is open for use by the public and includes places such as concert halls, auditoriums or other places of public gathering. (42 U.S.C.§12181(7)). In general, a CID is not open to the public and is not considered a “place of public accommodation.” As a result, a CID is not subject to the ADA and is not obligated to provide the same services or architectural features that a business may have to provide. Determining whether a CID is a place of public accommodation is a factual consideration that depends on the unique circumstances of the particular case. It is important to refrain from allowing events that are open to the public that may transmute your CID into a

place of public accommodation. Restrict use of common area facilities to members and their guests and avoid functions that are open to the public and that are advertised as such. Second, although a CID is generally not subject to the ADA, it is subject to both State and Federal Fair Housing laws that prevent discriminatory practices, especially where a disabled owner requests an accommodation to existing rules and regulations to allow him or her to better access and use the facilities. In this event, you are urged to consult your CID attorney to properly respond and if necessary accommodate the request. Jonathan D. Massie is a partner in the law firm of Massie Berman and has specialized in the representation of Common Interest Developments for the past twenty years.

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Potential Cost Impact and Other Effects of SB 407 (Padilla) By Andrew Felsburg

urrently, existing law requires that all toilets or urinals sold or installed in the state use no more than an average of 1.6 gallons or one gallon per flush, respectively. SB 407 would establish requirements for residential and commercial property built before January 1, 1994 for the replacement of plumbing

fixtures that are not water conserving. For multifamily residential properties that are remodeling, the bill establishes that as of January 1, 2014 in order for a certificate of completion or occupancy/final permit to be approved by the local building department, all noncompliant plumbing fixtures

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must be replaced with water conserving plumbing fixtures. The bill also has a separate deadline of compliance for multifamily residential properties as of January 1, 2019 for the replacement of all noncompliant plumbing fixtures, whether involved in a permitted remodel project or not. This is definitely an item to make note of

when looking at budgets and reserve studies, as the average cost to replace a standard tank-style toilet (1.6 gallon flush) today is approximately $450, and that cost will obviously increase as time goes by. Waterless urinals have been gaining popularity for the purposes of saving on water usage and water bills, however they still require maintaining of the chemicals that allow them to function without water. The average cost today of a waterless urinal ranges from $300 to $500 depending on the make and model, plus the cost of installation. Multiply either of the replacement costs above by the number of toilets in all common areas for your property, and you can see where this could have a definite impact on your budget and reserves. Rental units are also addressed in SB 407, in that it gives an owner the right to enter into a rental unit for the purposes of installing, repairing, testing, and maintain the water compliant plumbing fixtures. It also states that on or after January 1, 2019 all plumbing fixtures in a rental unit must be water compliant at the time a tenant takes possession of the unit.

2 0 1 0 L e g a l u p d at e

For single-family residential properties, the bill establishes that as of January 1st, 2014 in order for a certificate of completion or occupancy/final permit to be approved by the local building department, all non-compliant plumbing fixtures be replaced with water conserving plumbing fixtures. Additionally as of January 1, 2017 the bill would require that a property owner replace all noncompliant plumbing fixtures, whether involved in a permitted project or not. The bill also has a disclosure provision that after January 1st, 2017 a seller must disclose to the purchaser (in writing) the requirements for replacing noncompliant plumbing fixtures, and whether they exist in the property that is being sold. Water conservation is one of the hottest topics in communities today, and it will continue to be as we move through 2010. With more and more legislation coming down the line that addresses how properties maintain and disclose these new regulations, it will be more important than ever to ensure that your properties are in compliance. Andrew Felsburg is with Nu Flow America Inc in San Diego.

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A SMOLDERING ISSUE Should Your Community Adopt Smoking Prohibitions in Governing Documents? By Laurie S. Poole, Esq.

n restating governing documents for homeowners associations, one can ascertain what the current issues are that face today’s communities. The latest is whether or not to incorporate “no smoking” restrictions into the governing documents. States, cities, owners of apartment complexes and, now, common interest developments have been dancing around this issue for the last decade, especially as the dangerous effects of second hand smoke have become widely publicized. In the past 5 years, this issue has significantly been ignited. Currently, 24 states have enacted laws banning smoking in enclosed public places, including schools, restaurants and government buildings. California is one of those states.1 California cities, including San Diego, have also imposed some smoking bans, many of which address smoking in public areas such as restaurants, bars, beaches, parks, etc. Some cities have enacted ordinances pertaining to smoking bans in apartment

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complexes. In 2007, the city of Belmont, California made a groundbreaking decision when it passed an ordinance that prohibits smoking within the individual units of multi-unit residences, including condominiums, if the units share at least one common floor or ceiling with another unit.2 The ban includes the patio/yard areas of these units. The “no-smoking” terms of the ordinance became effective on January 9, 2009. Since then, other California cities have adopted similar ordinances - Santa Monica (in January, 2009) and Richmond (in July 2009). According to a February 9, 2009 article in the San Diego Union Tribune, efforts are being made to persuade San Diego city officials to consider adopting similar ordinances. When it comes to determining whether common interest developments can ban smoking from the common areas, units, exclusive use common areas (e.g., patios and balconies), or all of the above, there is little guidance. Across the country, a few associations have adopted rules or amendments to their governing documents restricting smoking. As recently as July, 2009, it has been reported that associations in Minnesota,

Wisconsin, Massachusetts, Colorado and New Jersey have attempted to pass, or have passed, rules and amendments which ban smoking in the common areas and in the units of condominiums.3 These actions have not been without controversy. In 2006, one Colorado trial court upheld an amendment to the governing documents of a 4-unit condominium complex which banned smoking anywhere on the project, including in the units. In Suave v. Heritage Hills 1 Condominium Owners Association, the trial court examined testimony of the owners within the complex and determined that the seepage of second hand smoke into the units was a “nuisance” in this complex. The court further determined that the “no smoking” amendment was “proper, reasonable, made in good faith and not arbitrary or capricious” and did not violate any public policy or constitutional rights. While this case would could not be relied upon by a California court, the elements found by this court which led to its conclusion that the amendment was “reasonable” are similar to the test of “reasonableness” set forth in the California Supreme Court case of Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal. 4th 361. In California, common interest developments facing the issue of whether to adopt rules or restrictions banning smoking are without much guidance. Absent a state statute or city ordinance, associations are left to examine case law to determine the legality of such a proposal. Thus far, there is no published California court decision that has squarely addressed whether a common interest development can prohibit smoking in certain areas of the project, including the separate interests. However, in January,

2009, the case of Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540 was decided. In this case, smoking was banned in the Oakwood apartment complex’ apartments, but not in its swimming pool area. The plaintiff was a minor who had asthma and claimed that the smoke in the pool area was

aggravating her medical condition. Plaintiff sued the owner of the apartment complex under several theories, including a claim for nuisance. She asserted that she had three bouts of pneumonia from allowing smoking in the common area. The trial court found that even if all of Ms. Birke’s claimed facts were true, she was Continued on page 24

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2009 Annual Awards Luncheon & Trade show Thank you to our 2009 Annual Awards Luncheon and Trade Show Exhibitors Allied Barton Security Services Animal Pest Management Arborwell ARS of San Diego Artistic Maintenance Association Reserves San Diego, LLC AV Builder Corp Bald Eagle Security Berg Insurance Agency Best-Rate Repair Co, Inc. Bob Piva Roofing Company California Sub-Meters Clean Earth Restorations Community Association Banc Dunn Edwards Paints Dynamic Concrete Coatings, Inc. Emerald Paving Co. Epsten Grinnell & Howell, APC Feinberg Grant Mayfield Kaneda & Litt, LLP Four Seasons Tree Care, Inc. Global Disposal Reduction Services Green Valley Landscape Interiors: By Design LaBahn’s Landscaping Leak Control Services, Inc Lloyd Pest Control Mt. Helix Pest & Termite Control, Inc. New Way Landscape & Tree Services Nu Flow America, Inc. O’Connell Lanscape Maintenance Pacific Green Landscape, Inc. Pacific Western Bank Payne Pest Management Personal Touch Cleaning Peters & Freedman, LLP Popular Association Banking Premier Roofing CA, Inc. PrimeCo Painting, Inc. Restoration Management Company RSI Roofing Service Master Clean- Lemon Grove ServiceMaster by Rapid Response Steven Smith Landscape Summit Security TruGreen Landcare Union Bank Urban Tree Care US Bank Varsity Painting Westturf Landscape Management 22

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Thank You to the Luncheon Sponsors Platinum

1. Three happy attendees. 2. Our 2009 Committee Chairs. 3. Epsten Grinnell & Howell, Business Partners of the Year. 4. A surprised Cyndi Koester accepts her President's Award from 2009 President Rick Salpietra. 5. Outstanding Committee Members of the Year. 6. Kimberly Lilley, Committee Chair of the Year. 7. 2009 Marketing Plan Gold Members. 8. A smiling Rob Bacon and Steve Orton from Mt. Helix Pest Control. 9. Janet Wagner, Recruiter of the Year. 10. Legislative Action Award accepted on their behalf by Zelma Hall.

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LEGISLATIVE ACTION AWARD Portfolio – Lisa Isaacson, Walters Management On-Site – Lake Park Condominium, Zelma Hall RECRUITER OF THE YEAR Janet Wagner – Walters Management COMMITTEE CHAIR OF THE YEAR CLAC Chair Kimberly Lilley – Berg Insurance Agency

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A Smoldering Issue Continued from page 21.

not able to establish a nuisance cause of action by her complaint and effectively dismissed her lawsuit. In reversing the trial court, the appellate court determined that she could state a claim for nuisance because of her claimed injuries. The appellate court made no ultimate holding as to whether or not Ms. Birke’s claim for nuisance was valid but did say she had a right to bring evidence to try to prove the seriousness of her harm and try to make a claim that the harm she suffered outweighed the utility of Oakwood’s rule allowing smoking in the common area. Although the Birke case involved residents of an apartment complex and not a common interest development, the case is significant in that past cases have compared homeowners associations to landlords.4 The holding in the Birke case raises liability concerns about allowing smoking in common interest developments. Most association’s governing documents have provisions prohibiting “nuisances.” California Civil Code Section 3479 defines what constitutes a nuisance and states: Anything which is injurious to health, including but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.... is a nuisance. The determination of what act is a nuisance is not determined by a fixed rule. Instead, it depends on the facts of each situation, such as the nature of the offending use, the extent and frequency of injury, the effect on enjoyment of health and property and other similar factors. While the “nuisance” provisions in governing documents would most likely assist an association seeking to prohibit

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smoking, due to the factual nature of these claims, it may not be the most effective tool. This may be why associations are now seeking to include more specific “no smoking” provisions into their governing documents. For associations considering this alternative, there are several factors to consider. First, should the provision be an amendment to the recorded CC&Rs or adopted as a rule? There are pros and cons to each. It is generally less expensive and faster to adopt a rule provision. California law requires that certain “operating rules” be sent to the members to review 30 days prior to adopting. Most likely, a rule prohibiting smoking would be determined to be an “operating rule” subject to the 30 day comment period. After that time, and considering input from the owners, the Board can adopt the rule. There is no requirement of an owner vote. However, rules can also be removed

or revised by the same process. Therefore, one board may adopt a “no smoking” rule and the next board could repeal it. Also, if challenged, a rule would face tougher scrutiny than would a recorded CC&R provision. The burden would most likely be on the Board to prove the rule is “reasonable.” Amending the CC&Rs requires a vote of a certain percentage of the owners. Many CC&Rs require at least a majority vote of all the owners, and, often, more than a majority (e.g., 67% or 75% - a “supermajority”). Obtaining the vote of the owners is expensive and time-consuming. However, once recorded, a CC&R provision is presumed to be reasonable and the burden would be on the party challenging the restriction to prove it is “unreasonable.” Under the Nahrstedt case, the test of reasonableness is whether the restriction: 1. Violates public policy 2. Is arbitrary or capricious; or 3. The benefit of having the restriction

is outweighed by the burdens of enforcing it. One argument made by proponents against “no smoking” restrictions is that associations are overreaching by telling owners what they may not do within their own separate interests. There is at least one California case which determined that an association exceeded its authority by requiring an owner to clean clutter from inside the unit. See Cunningham v. Superior Court (1998) 67 Cal. App. 4th 743. However, supporters of smoking restrictions point to the health issues raised by subjecting other owners to second hand smoke. For associations considering whether or not to adopt a “no smoking” restriction, the best place to start may be to conduct a poll of its owners to determine if the community would support a “no smoking” provision and, if so, how much of the project should be included (common area only, or separate interests, and balconies Continued on page 26

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A Smoldering Issue Continued from page 25.

and patios).5 Other factors to consider are whether the provision would “grandfather” in existing owners so they would not be subject to the “no smoking” restriction. While this may help in the political process of passing a restriction (especially in a CC&R amendment vote), it will not provide immediate relief if second hand smoke complaints are a significant issue. The bottom line is that from a legal standpoint, “no smoking” restrictions in common interest developments have yet to be tested in California courts. Associations should consult with counsel prior to proposing a prohibition on smoking within the community. The decision to propose these restrictions must involve weighing the pros and cons for each particular association. Gaining input from the community is essential as that may assist in clearing the smoke and providing a clear path to follow. Laurie S. Poole has been an attorney with Peters & Freedman, L.L.P. since 1993 and is involved in restating

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1 See, http://en.wikipedia.org/wiki/List_of_smoking_bans_ in_the_United_States#.C2.A0California 2 Ord. No. 1032, § II, (Belmont Code of Ordinances Section 20.5) 3See, www.no-smoke.org. 4 See, e.g., Frances T v. Village Green Owners Association (1986) 42 Cal. 3d 490 and Mission Shores v. Pheil (2008) 166 Cal. App. 4th 789. 5 A survey can be found at www.smokefreeapartments.org .

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We welcome our new chapter members. We look forward to your involvement in our local chapter! American Pool Enterprises, Inc..11/2009 Susan Thrasher.........................12/2009 Somyr Perry .............................11/2009 California West Patrol ..............11/2009 Bill Greenlee ............................10/2009 Mickey Hillis ............................11/2009 MC Builders Corporation .........12/2009 Edward Heiskell, III, PCAM . .....12/2009 Michael Greenstein Co., Inc. . ..12/2009 Laura Hurtado .........................11/2009

R e n e w i n g

Robert Kelly .............................11/2009 Erin Lavergne . .........................11/2009 Angelica Luna . ........................11/2009 Reina White . ...........................10/2009 Marianne Hirschberg ...............12/2009 Susan Fakhouri .......................10/2009 Cristina Naemi .........................11/2009 Roseville Place HOA .................11/2009 S.B.S. Lien Services ..................12/2009 Byron Mettler ..........................11/2009

Seabreeze Management Company, Inc. ....................11/2009 Donald Kerl .............................10/2009 William Bennett . .....................10/2009 Julie Bigelow ...........................10/2009 Loren Fisk ................................10/2009 Western Insurance Professionals, Inc. ...............12/2009 Win-Dor, Inc. ...........................12/2009

m e m b e r s

Thank you to our chapter members that have renewed their CAI membership. We appreciate your continued support and participation in CAI-San Diego. Robert Donaldson...................................1992 Marie Donovan ......................................2000 Jeannette Lymphany ..............................2006 Donald Michaels ....................................2006 7 Oaks Mgmt Corp #4 . .........................2005 A. McKibbin & Co. . ...............................1997 Adams Kessler PLC . ...............................2004 Advanced Painting Co., Inc. ...................2001 Alliance Association Financial Services . ..2008 American Geotechnical, Inc. ..................1992 Anderson & Kriger .................................1984 Aquaspecs, Inc. ......................................2001 Association Reserves San Diego, LLC .....2008 Bald Eagle Security Services, Inc. ............2009 Best-Rate Repair Co., Inc. . .....................2006 Bob Piva Roofing . ..................................2009 Bonita Vista Community Association . ....1982 Brinks Services . ......................................2006 Richard Shannon ....................................2007 A. Prezzano ............................................2009 CertaPro Painters ...................................2003 CID Insurance Programs, Inc. .................1996 Jill Bronk ................................................2005 Clean Earth Restorations ........................2008 Community Archives, Inc. ......................2008 Community Association Banc CondoCerts ......................................2004 Linda Strom, PCAM ...............................2005 Coral Tree Plaza Owners Association.......2008 Dennis Brokaw, AMS...............................1994 Del Mar Pacific General Contractors, Inc. ...............................1997 Amanda Amezcua .................................2007 Pamela Hayter ........................................2005 Dawn Walters, CMCA, AMS ..................2005 Escondido Village HOA ..........................2006 Cameron Gonzales . ...............................2008 Feinberg Grant Mayfield Kaneda & Litt LLP .............................2005 Frazee Paints ..........................................2009 Gardner Pool Plastering . ........................2008 Shannon McMurray ...............................2008 Green Valley Landscape & Maintenance, Inc. .............................2008 Haney Accountants, Inc. ........................2009

Hidden Ridge at Carlsbad ......................2001 HOA Elections of California, Inc. ............2009 Graham Insurance . ................................2009 Jon Wayne Construction & Consulting....1990 La Mesa Colony Homeowners Association .......................................1999 La Mesa Townhomes, Inc....................... 2001 LaBarre/Oksnee Insurance Agency.......... 2001 Victoria Cohen .......................................2005 Zelma Hall, CMCA .................................2005 Law Office of Laura Kwiatkowski........... 1993 Le Parc Chateau .....................................1999 Peter Penzes, PCAM . .............................2005 Lloyd Pest Control ..................................2006 Management Resource Center . .............2009 Juanita Bailey .........................................2008 Sharyn Edwards, CMCA, AMS ...............2005 Mission Realty ........................................1989 Roger Reeve ...........................................2006 Mt. Helix Pest & Termite Control ............2000 Nautilus General Contractors, Inc............2006 Nissho of California, Inc. ........................1995 Susan Marchetti .....................................2009 Pacific Green Landscape, Inc. .................1988 Pacific Rim Property Management .........2009 Pacific Western Bank . ............................2004 Tonia Ferreira . ........................................2008 Patio Guys ..............................................2009 Personal Touch Cleaning & Maintenance, Inc. .........................2006 Julie Lambert, CMCA, AMS ...................2006 Cami Surette, CMCA, AMS . ..................2007 Poolscape Unlimited, Inc. .......................2008 Prater Architects, Inc. .............................1998 Prendiville Insurance Agency ..................2006 Presidio Place .........................................1998 Property Management Consultants, Inc.................................1989 Hugh Maynard, CMCA ..........................2005 Rancho Del Mar Association ..................2009 Renaissance La Jolla Community Association . ..................2002 Rolling Hills Ranch Community Assoc. ...1999 Roy Palacios Insurance Agency, Inc......... 2005 RSI Roofing ............................................2002

S.C. Wright Construction, Inc. ...............1997 Karina Tatum . ........................................2006 S.D. Preferred Property Managers ..........1995 Mario Trejo, AMS................................... 2005 William Stewart, PCAM.......................... 2005 SCT Reserve Consultants, Inc................. 1994 Sea Point Townhomes Community Association . ..................1979 SHE Manages Properties ........................2005 Daniel Goodrich, CCAM, CMCA, AMS 2004 Patricia Ginger .......................................2006 Andrew Jager . .......................................2007 Silverado Community Management Service ........................1996 Site Plan Advantage ...............................1993 Summit Security Guard & Patrol . ...........2003 Sunrise Pointe Homeowners Association .......................................2008 The Bridges Community Association ......2001 The Inspectors of Election ......................2007 Nicholas Brennan ...................................2009 The McGowan Companies . ...................2006 Janice Liese, CMCA, AMS ......................2005 Mary-Anne Monck .................................2003 Edwin Vitrano, PCAM ............................1993 U.S. Lawns .............................................2008 Union Bank ............................................2008 Urban Tree Care, Inc. .............................2003 Bruce Becker, CCAM, CMCA, AMS .......1980 Villa Trieste At Del Oro Hills Master Association ...........................1993 Vista La Jolla Townhomes . .....................2008 Donna Walters .......................................2007 Warner Springs Estates HOA ..................2001 Dale Hess ...............................................2007 Richard Johnson .....................................2005 Westwood Townhomes 11-12 Corporation ......................................2009 David Abrams, CCAM, MCM . ...............1985 Patrick Morrisey .....................................2009 AUGUST-DECEMBER 2009

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Hom eow n er s ’

cor n e r

Amending Documents? ITEMS TO CONSIDER — Part One

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, 619-6974854. 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 last issue of Common Assessment detailed how help is available in amending the Declaration. This column and the column for the following issue will discuss items to consider when the governing documents are to be amended. Governing documents include both the Conditions, Covenants and Restrictions (CC&Rs) and Bylaws. Questions, on items to consider, have been very consistent ever since the Homeowners’ Roundtable monthly meetings began in 1992. This column will attempt to give some suggestions on how this may be handled. It should be recognized that the author of this column is not an attorney, therefore, if any of the suggestions are used by CID members, please be sure to confer with your attorney to see whether or not the suggested item is suitable for your governing documents. The original CC&Rs and Bylaws are written by the Developer (or Declarant) in accordance with the Department of Real Estate (DRE) regulations. The Developer also will include items that he/she feel will make their sub-division unique, make

a profit, and sell quickly. Once the Developer sells all the units/ lots and the homeowner board of directors is elected, the board and the membership have the option of amending the documents as long as the amendment procedures of either the CC&Rs or bylaws are followed. The suggestions which follow are not in any specific order and may apply to either the CC&Rs or Bylaws dependent upon where the item is located in your particular documents.

Board of Directors The governing documents state the number of directors that are to be elected to the board. This is usually an odd number of individuals. In most documents only owners can serve; in a few documents non-owners (renters) may serve. What these documents do not mention, for the most part, are the qualifications that are necessary to serve on the

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board. It is suggested that the documents be amended to contain one or more of the following.

Qualifications to Be a Candidate for Board Member a. The candidate must be an owner of record. This means that the deed for the unit/ lot, as recorded in the Country Recorder’s Office, must contain the name(s) of the owner(s). Others cannot serve as board members. Comment: Only owners should be allowed to make financial decisions affecting other owners. Since nonowners do not have a financial investment in the unit/lot the non-owners should not be in a decision making position. Continued on page 30

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Homeowners' Corner Continued from page 28.

b. The candidate must be an owner for at least one or two years. [Comment: Candidate should have some familiarity with the association prior to being in a decision making position.] c. If there are multiple owners of a unit/lot, only one owner shall be a candidate. Comment: Since each unit/lot is entitled to only one vote, it is not reasonable to allow a unit/lot two or more votes on the board. d. Candidate cannot be in arrears in any financial obligation to the association nor have any violation of the governing documents that have not been resolved. Comment: As a board member has to make decisions on financial matters affecting other members, the board member’s financial items should be above reproach. e. Candidate shall complete a “Candidate Application Form” and submit to association office by the date and time

indicated on form. “Application Form” should contain the notation that the candidate has a copy of the governing documents (CC&Rs, Bylaws, and Rules and Regulations) and is familiar with them. Comment: All members should be mailed this form so that any qualified member may be on the ballot. Since the candidate, if elected, is responsible to be guided by these documents, he/she should be cognizant of its contents. f. It is recommended, but not required, that candidate has service on at least one association committee prior to becoming a candidate. Comment: The candidate should have some knowledge about the operation of the association by serving on a committee.

vacant. The board shall fill this vacancy by appointment of a qualified member as noted in Section ___ of this Article. Comment: A board member delinquent in financial affairs should not be in a position to judge other owners who are alleged to being delinquent. b. A board member who is absent for more than three consecutive regular board meetings shall have his/her position declared vacant. The board shall fill this vacancy by appointment of a qualified member as noted in Section___ of this Article. Comment: This item currently is in many governing documents. Continued absence from board meetings prevents the board member from performing his/her fiduciary responsibilities.

Board Member Responsibility

Board President

a. A board member who is delinquent in monthly, special or emergency assessment for more than forty-five days shall have his/her position declared

There has been much confusion about what the voting power of the president is: Is the president required to vote on all issues or only to break a tie vote? Can the president veto an issue approved by a majority of the board? The statutes, CC&Rs, and Bylaws are completely silent on this topic. To clarify the situation it is suggested that the following be added to the documents. The president shall preside at all meetings of the board. (1) The president shall vote as any other director and shall have no power of veto, and (2) the vicepresident shall perform the duties of the president if that office is vacant or if the president is absent or unable to act. Comment: The membership elects directors and thus all directors have an equal vote on all issues. The board appoints its own officers independent of owner membership. The above paragraph will eliminate confusion and controversy.

Owner of Record Listing It is amazing how many attendees of the Roundtable insist that at the annual membership meeting, when directors are 30

S p r i n g 2 0 1 0 • C o m m o n A s s e s s m e n t Ma g a z i n e

to be elected, there is no listing of who the actual owners are. Relatives of owners and in many cases lessees are allowed to vote. It is suggested that the associations include in their documents the provision that each owner, within five or ten business days of the close of escrow, present a copy of the recorded deed for that unit/lot from the County Assessors office, showing the name(s) of the actual owner(s). Comment: When the governing documents state that the owner of record shall be a board member, or allowed to vote, either at board member elections, for special assessments, or approval of other items, it is incumbent upon the association to have such a listing. If a management firm manages the association, the management contract should state that the firm shall keep such a list up-to-date.

Amending the CC&Rs Normally the CC&Rs may be amended by the affirmative vote, written consent, or any combination thereof of the members of the association holding at least 100%, 75%, 66 2/3%, etc., as the case may be, of the voting power of the association residing in its members. Experience has shown that it is extremely difficult to amend the document because of the number of members who do not vote. It is suggested that one of the following two methods be used to amend the Declaration. Method #1: This Declaration may be amended by the affirmative vote, written consent, or any combination thereof by _____% of those members of the association voting on the amendment. [Comment: This parallels voting in governmental elections. Only the ballots of those who vote are counted; the total voting power of the citizenship is not even considered.]

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News Stand N e w s fROM C AI NATIONA L

New CAI Leaders Take Office January 1 P. Michael Nagle, Esq., founding partner of the Maryland law firm of Nagle & Zaller, P.C., will begin a one-year term as the 37th national president of Community Associations Institute (CAI) Jan. 1. Elected by members of the CAI Board of Trustees, Nagle is a charter member of CAI’s College of Community Association Lawyers, a past president of the Central Maryland chapter and author or co-author of several CAI publications. Steven Y. Brumfield, CMCA, AMS, PCAM, vice president of operations for the Wentworth Group, an association management firm headquartered in West Long Branch, N.J., will serve as CAI’s 2010 president-elect. Nagle will be joined by six new or reelected members of the Board of Trustees and 14 newly elected or reelected members of CAI’s three Membership Representation Groups (MRGs). “Serving as president of CAI is an unqualified honor, but it’s also an opportunity to continue to build and strengthen CAI and the concept of community association living,” said Nagle. “CAI is a strong and indispensable organization—for management professionals, community leaders and service providers across the country. I look forward to working with the Board of Trustees, other industry leaders and CAI staff to bring even greater practical value to our almost 30,000 members in 2010 and beyond.”

CAI’s 2010 Board of Trustees includes four new members: Ted S. Herrle, CMCA, AMS, LSM, PCAM, Admiral’s Cove Property Owners Association, Jupiter, FL. Drew Regitz, AssociationVoice, LLC, Denver, CO. Richard Salpietra, Esq., The Law Offices of Richard Salpietra, Rancho Santa Fe, CA. Michael William Shiflett, InterNeighborhood Council of Durham, Durham, NC. Nagle, Brumfield and the following members return to the 14-member board (* reappointed to another term): *Dennis C. Abbott, CMCA, AMS, PCAM, Abbott Enterprises, Inc., AAMC, Charlotte, NC. Robert E. Barlow, Jr., CMCA, AMS, PCAM, CIRMS, ADP Barlow Insurance, Bethlehem, PA. David I. Caplan, CMCA, AMS, PCAM, Community Association 32

S p r i n g 2 0 1 0 • C o m m o n A s s e s s m e n t Ma g a z i n e

Management, LLC, Stevenson, MD. Kathryn C. Danella, CMCA, LSM, PCAM, Boca Pointe Community Association, Inc., Boca Raton, FL. Julie McGhee Howard, Esq., Weissman, Nowack, Curry & Wilco, P.C., Atlanta, GA. Michael J. Magnotta, III, Advanced Technology Group, Inc., Plymouth Meeting, PA. Jack McGrath, The Grande at Colts Neck Condo Association, Colts Neck, NJ. *John McInerney, AMS, LSM, PCAM, Talis Management Group, Inc., AAMC, Raleigh, NC. CAI’s three primary member constituencies are represented by the Association of Professional Community Managers (APCM) Board, Business Partners Council (BPC) and Community Association Volunteers Committee (CAVC). MRG members are selected by a vote of CAI members in each category of membership.

The 2010 APCM Board (*newly elected or reelected): David I. Caplan (chair), CMCA, AMS, PCAM, Community Association Management, LLC, Stevenson, MD. Dennis C. Abbott (chair-elect), CMCA, AMS, PCAM, Abbott Enterprises, Inc., AAMC, Charlotte, NC. *Pamela D. Bailey, CMCA, AMS, PCAM, Chaparral Management, AAMC, Spring, TX. Sue Carpenter, CMCA, AMS, PCAM, Community Management Professionals, Inc., Orlando, FL. Kathryn C. Danella, CMCA, LSM, PCAM, Boca Pointe Community Association, Inc., Boca Raton, FL. *Staci M. Gelfound, CMCA, AMS, PCAM, Association Integrated Management Services, LLC, Gaithersburg, MD. Ted S. Herrle, CMCA, AMS, LSM, PCAM, Admiral’s Cove Property Owners Association, Jupiter, FL. *Cathy S. Kelly, CMCA, AMS, PCAM, Ocean Ridge Management, Boynton Beach, FL. Lori Loch-Lee, CMCA, AMS, PCAM, Rossmar & Graham Management Co., Mesa, AZ. *Jared McNabb, CMCA, PCAM, Crowninshield Management Corp., AMO, Peabody, MA. Paula Santangelo, CMCA, AMS, PCAM, Mid-Atlantic Management Corp., AAMC, Plymouth Meeting, PA.

*Steven Shuey, PCAM, Team Property Management, Inc., Rancho Mirage, CA. *Robin Steinkritz, CMCA, AMS, PCAM, Heritage Property Management Services, Inc., Atlanta, GA.

The 2010 BPC (*newly elected or reelected): Robert E. Barlow, Jr., CMCA, AMS, PCAM, CIRMS, ADP Barlow Insurance, Bethlehem, PA. *Drew Regitz (chair-elect), AssociationVoice LLC, Denver, CO. *Sara E. Barry, CMCA, PCAM, Wolf, Rifkin, Shapiro & Schulman, LLP, Las Vegas, NV. Heather L. Cozby, CPA, Cozby & Bruno, LLC, Plymouth, MA. *George Demetriades, Paint-Group/PaintPro, Inc., Highstown, NJ. *Henry A. Goodman, Esq., Goodman & Shapiro, LLC, Dedham, MA. *Mickel Graham, PCAM, Union Bank–HOA Banking Services, Atlanta, GA. Michael J. Magnotta, III, Advanced Technology Group, Inc., Plymouth Meeting, PA. Marc Nuzzolo, CNL Bank, Boca Raton, FL. Caroline Record, Esq., Berman, Sauter, Record & Jardim, P.C., Morristown, NJ. Loura Sanchez, Esq., HindmanSanchez, PC, Arvada, CO. Lynn Voorhees, RS, Kipcon, Inc., North Brunswick, NJ.

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The 2010 CAVC (*newly elected or reelected): Jack McGrath (chair), The Grande at Colts Neck Condo Association, Colts Neck, NJ. Michael William Shiflett (chair-elect), InterNeighborhood Council of Durham, Durham, NC. Prudence Bachmann, The Masters Condominium Association, Suffolk, VA. *Marilyn Brainard, Wingfield Springs Community Association, Sparks, NV. *Victoria A. Cohen, Lake Murray Terrace, San Diego, CA. *Fred Mellenbruch, Lake Mission Viejo C o m m o n A s s e s s m e n t Ma g a z i n e • S p r i n g 2 0 1 0

News Stand

SAN DIEGO 2009 CAI-CLAC HONOR ROLL By Sam Dolnick, CAI-CLAC Delegate-at-Large

Various associations, individuals, professionals, managers and business partners in the San Diego Chapter have contributed funds to CAI-CLAC on behalf of common interest communities to assure that our voice is heard in the halls of the California legislature. CAI-CLAC monitors legislation regarding common interest developments (condominiums, planned developments, stock cooperatives and community apartment projects) that the legislators are called to deliberate and vote upon each year. Each issue of Common Assessment features the names of the contributors and those individuals responsible for 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, stationary, phone, 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 31, 2009. 2009 Goal = $30,277

GOAL MET!!!

Total Collected = $30,328 Andalucia Townhomes HOA Lisa Isaacson AMS CCAM

Interiors By Design Geri Musser

Seven Oaks Mgmt. Corp. No. 4 Geraldine Vellios

La Jolla Soledad West HOA Lisa Isaacson, AMC, CCAM

Southern California Tree Care

La Mesa Colony HOA Alicia Lloyd Lake Park Condo Association Zelma Hall CMCA

Association Reserves

MC Painting Meridian Residential Association

AV Builder Corp.

Meridian Residential Association

Roger & Laurie Benham

Missions @ Ivy Ranch Connie Cain

Berg Insurance Agency, Inc. Kimberly LIlley, CMCA Brookfield HOA Victoria Williamson CAI San Diego Chapter Barbara Ozenbaugh, CMP Victoria Cohen Carlsbad Woodbridge HOA Sara Streicher Coronado Shores Condo Assn #36 Jim Liese, CMCA, AMS, CCAM, CMI

Morning View Associates LLC Judith Stadler Ocean Hills Summit HOA Mike Mazur Ocean Terrace/Spinnaker Ridge Frank Lombardi Pacific Green Landscape, Inc. Pacific Western Bank Ken Carteron Payne Pest Management Willie Payne

Sam Dolnick

Premier Roofing CA, Inc. Tom Pigeon

Eastview RB Duplex Elite Community Management

Presidio Place HOA Dennis Beebe

Emerald Paving

Pro-Tech Painting Roman Bernal

Encinitas Corp. Center OA Equity Management Epsten Grinnell & Howell, APC Heartland Maintenance Corp. Ginger Murray il Palio HOA Lisa Isaacson, AMS, CCAM 34

The Highlands Maintenance Corp. Three Phase Electric Jeff Locher Union Bank Pam Hazard Urban Tree Care Vermont Villas Condo HOA Dawn Walters Villa Antigua HOA Diane Pew Villa Marbella HOA Robert Donaldson Villa Trieste at Del Oro Hills Professional Community Management Village Park Townhome Corp. #3 Wells Fargo Bank Mark Durazo Westturf Landscape Management Woodbridge Estates HOA Lisa Isaacson, AMS, CCAM Congratulation again! Let's see if we can reach our 2010 goal!!!

Rock Springs East C.O.A. Dawn Walters Saddleback Fence & Vinyl Products Sea Vista HOA

S p r i n g 2 0 1 0 • C o m m o n A s s e s s m e n t Ma g a z i n e

Continued from page 31.

Association, Mission Viejo, CA. “Change is inevitable, but one aspect of CAI never changes—the dedicated members willing to volunteer their time and expertise to help us bring even more value to each individual member and the industry at large,” said CAI Chief Executive Officer Thomas M. Skiba, CAE. “We’re fortunate to have so many committed members eager to step into leadership roles. Our ongoing success is a direct result of their energy and efforts.” NOTE: Complete board and MRG rosters are posted under “National Volunteer Leadership” in a membersonly section of the CAI website at www. caionline.org

Bart Park, Ron Perl Join NBC-CAM Board JAN. 15, 2010, ALEXANDRIA, VA—Two respected industry leaders—Bart Park III, CMCA, AMS, PCAM, of Capital Consultants Management in Arizona and Ron Perl of the New Jersey law firm Hill Wallack— have been appointed to the 2010 governing board of the National Board of Certification for Community Association Managers (NBC-CAM). The nine-member Board of Commissioners will be chaired by returning board member Robert Felix, CMCA, LSM, PCAM, RS, of Rossmar Graham in Phoenix, Ariz. A combination of industry professionals and community association homeowners, the board will guide the organization as it closes in on awarding its 10,000th Certified Manager of Community Associations® (CMCA) credential. The CMCA credential is the national standard of fundamental knowledge for community association managers. The program offers major benefits and assurance to homeowners, community

associations, legislatures and regulatory agencies. Felix, Park and Perl will be joined on the board by: Dennis Abbott, vice chair, CMCA, AMS, PCAM, of Abbott Enterprises, Inc., Charlotte, NC. Joe Bunting, secretary/treasurer, CMCA, AMS, LSM, PCAM, of Kiawah Island Community Association, Kiawah Island, SC. John Hammersmith, CMCA, AMS, PCAM, Hammersmith Management, Inc., Greenwood Village, CO. Sheryl Rosander, Esq., Coronado, CA. Beverly Scenna, Palm Harbor, FL. Jill Van Zeebroeck, CMCA, PCAM, Paramount Management Group, Inc., Camarillo, CA. Felix, who also operates the Felix Reserve Group, has been involved in nearly every aspect of residential and commercial development and commoninterest communities. He is a nationally recognized educator, speaker and author in the field of community associations and the development of residential and commercial projects. “I look forward to serving as chair of NBC-CAM’s Board of Commissioners,” said Felix. “I believe the strengths of the CMCA program come from the thousands of community managers who earn the CMCA and seek a common thread of knowledge, communication and professionalism.” More than 60 million Americans live in an estimated 300,000 community and condominium associations and cooperatives. Many of these associations reply on professionals to manage associations operations, many of which have multi-million dollar budgets. Community associations have estimated annual operating revenue of $40 billion. It is critical that community associations hire professionals who have demonstrated they have the fundamental knowledge necessary to manage associations

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effectively. “I am excited to be working with such a dedicated and talented group of commissioners,” said NBC-CAM Executive Director, Dawn Bauman. “Serving on the board is a significant commitment of time and energy, and I am confident that our commissioners will represent the strength of our CMCA program and professionals.” The board sets the policies and programs of NBC-CAM and is responsible for all aspects of the CMCA program— establishment of criteria for certification and recertification, development and enforcement of disciplinary policies and procedures, interaction with governmental regulatory bodies and public communications about the certification program. NBC-CAM is the first and only national organization created solely to certify association managers and to help consumers identify managers who have demonstrated fundamental competency and knowledge in the community management profession. It was founded as an independent entity by Community Associations Institute (CAI) in 1995. Since then, more than 9,500 professionals have earned the CMCA certification.

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earthy, musty smell), then a mold problem is likely to exist. If you suspect mold is present in your home, or if you want to determine the type or extent of the problem, you can hire someone to test the air quality. There are professional companies that do this. If you have a pipe break in your home, within days mildew and

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What can you do if you have a water emergency? Water source: If possible, stop the source of water. Turn off the outside water main, or if necessary call a plumber or other qualified professional. Air Conditioning: Turn on air conditioning to speed drying in summer. Keep temperature no lower than 72 degrees. Art Objects/Paintings: Remove valuable paintings and pictures from walls. Transfer all art objects to a safe place. Books/Magazines: Do not leave books, magazines or other colored items on wet carpet or floor. Carpeting: Blot wet carpeting with clean white towels. Remove Oriental or other colored area rugs from wall to wall carpet. Place a fan so air flows over carpet, speeding the drying process. Ceilings: Punch small holes in sagging ceilings to release trapped water. Place a plastic (not metal) bucket under the leak. Do not turn on ceiling fixtures if your ceiling is wet. Clothing/Fabrics: Move wet items to a dry place. Open and empty drawers, cabinets and closets for complete drying. Hang fur

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Walters Management Company Accountants Sonnenberg & Company

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Attorneys Anderson & Kriger

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Kimberly Lilley, CMCA, CIRMS ............................................ 800-989-7990 fax 949-586-9877 kimberly@berginsurance.com www.berginsurance.com

Landscape Maintenance and/or Construction KR Landscape Maintenance, Inc.

Shaunmarie Daly.................. 760-295-9720 fax 760-295-9730 sdaly@krlandscapeinc.com www.krlandscapeinc.com

LaBahnâ&#x20AC;&#x2122;s Landscaping

David Stuckey...................... 619-579-9151 fax 619-461-0814 dstuckey@labahns.com www.labahns.com

New Way Landscape and Tree Services, Inc.

Arthur Raybold.................... 858-505-8300 fax 858-505-8305 araybold@newwaypro.com www.newwaypro.com

Pacific Green Landscape, Inc.

Zoen Baldwin....................... 619-390-9962 fax 619-390-0865 zbaldwin@pacificgreenlandscape.com www.pacificgreenlandscape.com

Steven Smith Landscape, Inc.

Gigi Golden-Smith............... 760-745-9916 fax 760-745-1982 ggolden@stevensmithlandscape.com www.stevensmithlandscape.com

Westturf Landscape

Heather Collins.................... 760-650-3120 fax 760-650-3125 heather@westturf.com www.westturf.com

Outdoor Furniture Patio Guys

Towing Western Towing

Painting Contractors Pro-Tech Painting

Tree Service New Way Landscape and Tree Services, Inc.

Laura Terpack....................... 800-310-4897 fax 760-599-4660 commercial@patioguys.net www.patioguys.net

Chris Cena........................... 858-527-0200 fax 858-527-0220 chris@pro-techpainting.com www.pro-techpainting.com

Pest Control Payne Pest Management

Willie Payne......................... 858-277-2228 fax 858-277-2212 wpayne@paynepestmgmt.com www.paynepestmgmt.com

Kathy Tighe.......................... 619-297-8697 fax 619-296-2822 denisetb@westerntowing.com www.westerntowing.com

Water Submetering California Sub-Meters

Danielle Poanessa................ 858-571-8999 fax 858-571-4470 daniellep@calsubmeter.com www.calsubmeter.com

Arthur Raybold.................... 858-505-8300 fax 858-505-8305 araybold@newwaypro.com www.newwaypro.com

top to bottom pool plastering & remodeling

Pools/Spas Gardner Pool Company

Tom Cox.............................. 619-583-8880 fax 619-593-8886 info@gardnerpoolplastering.com www.gardenerpoolplastering.com

Plastering • Plumbing • Equipment • Decking • Solar Gardner Pool PlasterinG

Reserve Studies Association Reserves San Diego LLC

Matthew Swain, RS............. 619-567-5239 fax 619-568-3564 mswain@reservestudy.com www.reservestudy.com

Serving the San Diego Area

Associated Professional Services The Management Alternative

Sonnenberg & Company

Leonard Sonnenberg............ 858-457-5252 fax 858-457-2211 lens@sonnenbergcpas.com www.sonnenbergcpas.com

Roofing Premier Roofing

Bill Capito............................. 619-667-4565 fax 619-667-1281 billc@premierroofingca.com www.premierroofingca.com

800-246-POOL

www.gardnerpoolplastering.com

Providing cost-effective, efficient Accounting Services for: • Self-Managed Homeowners associations • Associations Employing an On-Site Manager • Portfolio Managers Call Neal Chazin

(619) 299-6899

Security Services Bald Eagle Security

Dmitriy Todorov................... 619-230-0022 fax 619-230-6610 dmitriyt@baldeaglesecurity.com www.baldeaglesecurity.com

Transport Data Systems

William Kreth....................... 619-295-5050 fax 619-295-5354 Bill@tds-its.com.com www.speednabber.com

C o m m o n A s s e s s m e n t Ma g a z i n e • S p r i n g 2 0 1 0

w h at ’ s n e w i n S a n D i e g o ?

RAISE THE ROOF!

Homeowners' Corner Continued from page 31.

Method #2: Ballots that are sent out should contain the following phrase. “Any ballot which is not returned within 30 days after the date on the ballot shall be considered as an affirmative vote.” [Comment: Because of apathy and many members ignoring the ballots, this forces them to vote if they are against the amendment or the issue. See Court of Appeal,

Fourth Appellate District, Case #D42976, Fourth La Costa Condominium Association v. Barbara Seith.] In order to keep this article to a reasonable length other suggestions regarding how the governing documents may be amended will appear in Part II, in the next issue of Common Assessment. Remember to confer with your association attorney if there is a follow up to any of the suggestions made above.

Congratulations to James Adams of RSI Roofing and his wife Amy on the birth of their son, Taylor James Adams, born Feb. 2, 2010, 7.9 lbs, 21 ¼ long.

DESIGNATED Kimberly Lilley, CMCA, CIRMS, Director of Marketing for Berg Insurance Agency, recently joined a select group of community association insurance and risk management professionals who have earned the Community Insurance and Risk Management Specialist (CIRMS) designation from CAI. Congratulations, Kimberly! Serving San Diego County for over 25 yearS

It's official Congratulations to Rick Salpietra, our immediate Past President, on his election to CAI National’s Board of Trustees. Rick will serve a 2 year term, and beat out several qualified nationwide candidates. Congratulations Rick!

Expert Care for a Beautiful, Trouble-Free Landscape.

760.295.9720 www.krlandscapeinc.com

S p r i n g 2 0 1 0 • C o m m o n A s s e s s m e n t Ma g a z i n e

• Professional Landscape Maintenance Service for Community Associations • State of the Art Water Budgeting and Management • We Make It Easy for You, You Deserve It License #427886

1081 Camino del Rio South Suite 207 San Diego, CA 92108

2010

CAI-SAN DIEGO Marketing Plan MeMbers

Platinum

Gold animal Pest manaGement Bald eaGle security del mar Pacific General contractors Pacific Western Bank Peters & freedman, llP PoPular association BankinG Premier roofinG of california, inc. Pro-tech PaintinG co.

Bronze Anderson & Kriger Artistic MAintenAnce AssociAtion reserves sAn diego, LLc Av BuiLder Berg insurAnce Agency cLeAn eArth restorAtions eMercon construction FeinBerg grAnt MAyFieLd KAnedA & Litt, LLP interiors: By design LABAhn’s LAndscAPing LAndsysteMs, inc. LAw oFFices oF richArd sALPietrA MAster PLuMBing & LeAK detection Mt. heLix Pest And terMite controL new wAy LAndscAPe & tree service o’conneLL LAndscAPe PAciFic green LAndscAPe PAtio guys reconstruction exPerts rodent Pest technoLogies sBs Lien services serviceMAster By rAPid resPonse sKy security services us BAnK westturF LAndscAPe MAnAgeMent