CAI-GRIE’s mission is: To make a positive contribution to the Common Interest Development Community through education and networking.
connect A PUBLICATION OF THE GREATER INLAND EMPIRE CHAPTER OF CAI
ISSUE FOUR 2014
Legal Update 2014
our mission the Devil is in the details. In Community Association Law…
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connect Table of Contents A PUBLICATION OF THE GREATER INLAND EMPIRE CHAPTER OF CAI
www.cai-grie.org
OFFICERS Kimberly Lilley, CMCA, CIRMS.................................................. President Berg Insurance Agency, Inc. Nancy I. Sidoruk, Esq.........................................................President-Elect Epsten Grinnell & Howell APC Lana Hamadej, LSM, PCAM............................................. Vice-President Avalon Management Group, AAMC Alisa Toalson, CMCA, AMS, CCAM ......................................... Secretary Professional Community Management Dana Mathey, CMCA, AMS, PCAM ........................................ Treasurer Euclid Management Company BOARD DIRECTORS Greg Borzilleri......................................... PCW Contracting Services, Inc. Weldon L. Brown, CCAM, CPM ................ Weldon L. Brown Company Linda Cooley.............................Rosetta Canyon Community Association Dori Kagan, CMCA, CCAM-Emeritus...................... Pacific Premier HOA & Property Banking Cyndi Koester, CMCA, AMS, PCAM................................. Sunwest Bank Nick Mokhlessin...............................ValleyCrest Landscape Maintenance Robert Riddick, CMCA.......................................Sunnymead Ranch PCA Shelly Risbrudt............................................Pilot Painting & Construction Kristie Rose, CMCA, AMS, PCAM........................ FirstService Residential Chapter Executive Director DJ Conlon, CMCA ADMINISTRATIVE ASSISTANT Ginny Aronson-Hoke EDITOR IN CHIEF Cang Le, Esq. ............................................................Adams Kessler, PLC PUBLICATIONS COMMITTEE Linda Cooley.............................Rosetta Canyon Community Association Jasmine Fisher, Esq.....................................................Adams Kessler, PLC Lana Hamadej, LSM, PCAM ....................... Avalon Management Group Gary Kessler, Esq........................................................Adams Kessler, PLC Kimberly Lilley, CMCA, CIRMS.....................Berg Insurance Agency, Inc. Robert Riddick, CMCA.......................................Sunnymead Ranch PCA Betty Roth, CCAM, CMCA, AMS, PCAM Avalon Management Group, AAMC Nancy I. Sidoruk, Esq. .............................Epsten Grinnell & Howell, APC
Features
Departments
4 Case Law Wrap Up 2014
6 President’s Message
By Mary M. Howell, Esq., CCAL
By Kimberly Lilley, CMCA, CIRMS
8 Legislation: How Much Do You Know? By Pamela Voit, CMCA, AMS, PCAM
11 Grassroots Efforts to Effectuate Legislative Change By Robert Riddick, CMCA
14 Hot Bills for 2014: It Was a Very Busy Year!
10 Editor's Link By Cang Le, Esq. 14 Simple Guidelines for New Directors 20 Past President's Perspective Featuring Lana Hamadej, LSM, PCAM
By Gary Kessler, Esq.
18 The State-Wide Legal Forum: What We Learned By Kimberly Lilley, CMCA, CIRMS
22 A Short Perspective on the September Luncheon By Betty Roth, CMCA, AMS, PCAM
24 Service Dogs & Associations By Timothy, CMCA, AMS
DESIGN & PRODUCTION Kristine Gaitan..................Rey Advertising & Design/The Creative Dept.
All articles and paid advertising represent the opinions of authors and advertisers and not necessarily the opinion of either Connect or the Community Associations Institute – Greater Inland Empire 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. Connect is an official quarterly publication of Greater Inland Empire Chapter of the Community Associations Institute (CAI–GRIE). The CAI–GRIE 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 the CAI–GRIE Chapter. Reproduction of articles or columns published permitted with the following acknowledgment: “Reprinted with permission from Connect Magazine, a publication of the Community Associations Institute of Greater Inland Empire Chapter.” Copyright © 1998–2014 CAI-Greater Inland Empire Chapter. Advertising, articles or correspondence should be sent to: CAI-GRIE Chapter 5029 La Mart, Suite A • Riverside, CA 92507-5978
The Greater Inland Empire Chapter of CAI hosts educational, business and social events that provide the Chapter’s Business Partners various opportunities to promote their companies’ products and services to Community Association owners and managers serving the Community Association Industry. It is expected that all participants in Chapter events — whether they be educational, business or social — will conduct themselves
(951) 784-8613 / fax (951) 848-9268 info@cai-grie.org
in a professional manner representative of their business or service organization so as not to detract from the experience of others seeking to benefit from their membership in the Chapter.
CONNECT WITH GRIE • ISSUE FOUR 2014
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Case Law Wrap Up 2014 Huntington Continental Town House Assn. v. Miner (2014) 230 Cal. App.4th 590
Must an association accept partial payments form a homeowner after a lien has been recorded and judicial foreclosure proceedings commenced? The answer, after a convoluted appellate process, is “yes.” A brief history: an owner did not respond to several pre-lien communications, after which the association recorded a lien. After the suit was filed to foreclose the lien, the owner proposed a payment plan. Attorney drafted the plan, but owner failed to sign (though owner made two payments on the debt). Thereafter, the attorney indicated suit was going to go forward. Owner asked for and received an accounting. Thereafter, owner sent a cashier’s check to the president’s home. President told the owner that he would instruct the attorney to accept the payment, but the attorney rejected the payment. Association won at trial, but on appeal, two courts ruled that the association (and its attorney) were required by the Davis-Stirling Act to accept partial payments, even in the absence of a signed payment plan. The court felt that the legislature’s intent was to severely limit an association’s right to foreclose. The court noted that various amicus curiae (including AARP) had written to oppose the use of foreclosure by associations, as “unjust,” “extremely damaging” and “particularly severe for older homeowners.”
Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754. After association’s construction defect attorney met with homeowners to discuss the status of the association’s lawsuit, defense attorneys sought during
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ISSUE FOUR 2014 • CONNECT WITH GRIE
various depositions to force disclosure of statements made by the attorney in these informational meetings. To the relief of both association and its homeowners, the court denied the request to force disclosure of such statements, on the basis of the attorney-client privilege. Acknowledging that the attorney’s “client” is the association, the court nevertheless held that the statements made were privileged: “A disclosure in confidence of a communication that is protected by [attorney-client privilege] when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer … was consulted, is not a waiver of the privilege.” The court noted that public policy favored extending the privilege, because to do otherwise would allow defendants to indulge in a “harassment tactic… [shifting] the focus of the case from damages caused by [defendant’s actions] to damage caused by allegedly inflammatory or false information….” The court noted that the Davis-Stirling Act “places certain obligations on an association to communicate with individual owners about any proposed construction defect litigation...” and that keeping the owners informed, though not specifically required by statute, was “reasonably necessary” for the attorney to carry out her duties to her client. Finally, the overall confidentiality of the communication was not waived, because attendance at the meetings “was restricted to the owners alone, not to tenants, prospective buyers, real estate agents or other such third parties….”
Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722 Developer-directors formed the majority of the
BY MARY M. HOWELL. ESQ., CCAL
association’s board when trails constructed by the developer and owned by the association were damaged in a slope failure. The developer-directors represented to the association that the association was responsible for paying for repairs to the trails. It later turned out (according to the complaint) that the trails actually were to be maintained in perpetuity by the developer, and that the developerdirectors knew this, and misrepresented to the rest of the board that the association was liable. Association sued for breach of fiduciary duty, fraud, and related actions. The developer-directors filed a motion to strike (anti-SLAPP), arguing that the statements made had been “protected free speech.” (An anti-SLAPP motion allows the court to dismiss a complaint based on certain types of protected speech very early in the case.) The trial court denied the developer-directors’ motion to strike, and the appellate court agreed. First, the court noted that the actions based on the directors’ failure to speak (withholding information) are not protected by the anti-SLAPP statute and therefore not subject to a motion to strike. Next, the defendants argued that true basis for the complaint was the way the developer-directors had voted, rather than what the directors had said, and that voting was a constitutionally protected type of speech. But the court found that voting was “merely incidental” to the actual complained-of breaches of duty. Finally, the court turned to the most difficult of the causes of action, fraud. Since fraud requires an affirmative misstatement, the anti-SLAPP motion might potentially apply. The decision turned on whether homeowner association meetings are “official proceedings” or the deliberations of a “governmental body.” After acknowledging that numerous cases and some commentary refer to associations as “quasigovernmental” in nature, the question of who was to pay for repairing the trails was not a matter before a governmental or official body. Finally, said the court, the question of who was to pay for the repairs is not an issue of public interest. Accordingly, none of the possible bases for granting a motion to strike existed, and the defendantdirectors’ motion was properly denied.
Concluding Remark
Under our system of jurisprudence, court decisions are often the final word on how a law, a contract or the CC&Rs are to be interpreted. It is not enough to simply read a statute and decide what it means. Instead, the student of community association legal concepts needs to dig into the rulings of reviewing courts to fully understand the law. (Besides, cases are a lot more interesting than the statutes! Happy reading!) Mary M. Howell, Esq., CCAL, is a Shareholder and Chair of the Senior Communities Practice Group at Epsten Grinnell & Howell, APC, which has offices in San Diego, Inland Empire and Coachella Valley. She recently co-authored the updated Continuing Education of the Bar text on “Advising California Common Interest Developments.”
CONNECT WITH GRIE • ISSUE FOUR 2014
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PRESIDENT’S MESSAGE
STEPS TO EFFECTIVE LEADERSHIP – STEP 4 Our Chapter theme this year is
Kimberly Lilley, CMCA, CIRMS is Director of Marketing for Berg Insurance Agency and the 2014 Chapter President for CAI-GRIE. She may be reached at Kimberly@BergInsurance.com.
ensure that everyone on the committee has a chance to share
“Shall We Dance? Steps to Effective
their ideas. That shift of dynamics, while subtle, can make all
Leadership.” We have already talked
of the difference between a successful chair and a frustrated
about the first three steps:
committee. As they learn this lesson, and understand how much
• Work in the “trenches”
work it actually takes to encourage and track creativity from the
• Lead Locally
team, they become ready to chair a full committee, where they
• Be a Visionary
have a chance to really hone their leadership skills.
Which leads us full-circle to Step
Once that is done, the next step is service on the Board of
Four: Return to Your Roots – Bring
Directors. A new set of skills is needed, as the member needs
Up New Leaders. Ask yourself, “Who
to stop thinking in terms of “doing” and think more in terms of
is working in the ‘trenches’ today?” When you look for those
setting vision, goals and policy for the organization as a whole.
who are making a difference at a committee level, give them a
While the perspective has shifted, leadership always comes
chance to expand their skills by chairing a sub-committee. Help
down to the same thing: wanting to contribute to the success
them see the difference between the skills needed to show up to
of the organization. The more you can nurture and grow these
a meeting full of ideas and tasks accomplished as a committee
skills in others within the organization, the more options your
member, and the skills needed to lead the subcommittee and
organization has for a bright future!
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ISSUE FOUR 2014 • CONNECT WITH GRIE
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How Much Do You Know? By Pamela Voit, CMCA, AMS, PCAM
D
id you know that 9 million homeowners live in a community association in California, and 65 million nationwide? This means that 25% of Californians and 1 in 5 Americans live in a community where they have agreed to restrictions that establish a system of self-governance by the owners. So how is it that each year CAI monitors an increasing number of bills that affect associations? To get a better understanding of the legislative issues in our industry, I reached out to some exceptional industry leaders who have been actively engaged in legislation for many years. Skip Daum has been the Legislative Advocate for California Legislative Action Committee (CLAC) since 1992, and is currently a member of the CAI G&PA committee and on the Board of the Foundation for Community Association Research (FCAR). Dick Pruess is a longtime board member, a past Chairman of CLAC, and has received CAI’s 2012 Award of Excellence in Government & Public Affairs for his testimony to a subcommittee of the US Congress regarding the effects of foreclosures on common interest developments (CIDs). Kelly Richardson, Esq., CCAL, of Richardson Harman Ober PC, is also a past Chairman of CLAC, is a member of the CAI Board of Trustees and is the 2015 President Elect for CAI National. 8 |
ISSUE FOUR 2014 • CONNECT WITH GRIE
And finally, Dawn Bauman, CAE, is Sr. Vice President of Government & Public Affairs for CAI National. Whether you are a veteran or new to the industry, you are no doubt aware that new legislation continually affects how CIDs are regulated. As a board member or professional, you are required to continually reevaluate and retool your procedures in order to adhere to the new laws. Early on, there were only a handful of recurring issues that faced the industry. According to Skip, community associations were largely under the legislature’s radar until the mid 1990s. Dick recalls that there was a realtor’s bill that would have required managers to have real estate licenses and be regulated by the California Department of Real Estate. And Kelly and Dawn both agree that the right to sue over developer defects dominated the legislation, along with specific disclosure obligations. However, the limited scope of focus was soon to disappear, and now there is an ever-increasing rise in legislative issues. According to Skip, since the Davis-Stirling Act (DSA) was enacted in 1985, it has been amended more than 50 times. In California, legislator term limits have resulted in approximately 40% of state legislators being replaced each term, and there are approximately 2500
bills introduced each year, with dozens of them affecting community associations. Dawn also explains, “The number of issues facing each state has changed tremendously. Fifteen years ago, I would guess CAI was tracking no more than a couple of hundred legislative bills in the entire country. Today, we track nearly a couple of thousand. The issues today are often oneoff constituent issues that resulted from a homeowner or small group of homeowners complaining to their legislator. Legislators want to serve their constituents and their instinct is to help the individual asking for help. Often it is difficult to understand the way a community association is governed and operates. Therefore, constituents’ issues sound plausible. In reality, most one-off constituent issues that are resolved in legislation have a negative effect on the majority of the neighbors living in the community association.” But the legislation is not all bad news. All of those interviewed agreed that there has been significant legislation that has resulted in positive regulations for communities. Skip believes that the DSA created the perception of independent and local governance. And Kelly indicated that, “In the past ten years, the California Law Revision Commission’s rewrite of the CID Act is far and away the best improvement in making the Act less confusing and more ‘userfriendly’ for professionals and owners alike. Dick also stated that Assembly Bill 2273 which requires early notification of foreclosures, helped associations collect assessments to avoid passing along default costs to homeowners. And of course, there have been significant protections put in place to conduct proper elections, and governance affecting board transparency. But with the ever-increasing number of issues being put under
a microscope in Sacramento, what challenges will we face in the future? Although specific issues such as assessment revenue recovery; elections and voting; and increasing national regulation scrutiny will continue to dominate the dialogue, according to the experts, homeowner apathy and legislator education are definitely major considerations. Kelly states that “CIDs are not municipalities. We need to help remind our elected officials that CIDs are private organizations, and that one size does not fit all.” Dick agreed that we will continue to be challenged by legislator’s ignorance of what CIDs are when they author bills that are intended to help a few constituents, but affect all 50,000 associations in California. Negative stories in the media were also mentioned, as it does not reflect an accurate view of the benefits that homeowners realize by living in a CID. In fact, Dawn describes the challenges this way: “The two major challenges to community association legislation are the squeaky wheel effect and the power of money. Legislators listen to the squeaky wheels (aka the complainers who don’t like their community association rules or the victims of the community associations). However, according to valid research that has been confirmed over the past decade, nearly 9 out of 10 people living in a community association are happy with their experience. Squeaky wheels complain to legislators and try to get law changes that have a negative effect on community associations. This requires CAI to spend a tremendous amount of effort to educate legislators about the reality of the general feeling of community associations. The power of money is also a challenge. Community associations are typically nonprofit corporations. They don’t raise money to try to lobby for their rights. The community associations are up against
the banks and sometimes other very powerful lobbies like the real estate agents and the developers. Unfortunately, money talks in the political world. This reality oftentimes makes it difficult to compete.” So it seems we will not escape the potential of over-regulation any time soon. And to effect positive changes that lead to responsible legislation, all agreed that involvement and education are the keys to increasing our legislative influence. To begin with, CAI members should be aware of the wide range of legislative resources that are available to them. They should also keep up with current legislation through their chapter events, the CAI and CLAC websites, and social media so that they can educate association leaders on the value of supporting responsible legislation. Monetary support through the Buck-A-Door or More helps fund necessary advocacy that results in successful lobbying. And continuing to grow our grassroots efforts with the homeowners we serve is imperative. As Skip aptly points out, “It’s imperative that owners stand up for themselves and be counted. This must be a never-ending effort!” After all, didn’t this all start as selfgovernance? Now you know! For a list of resources visit the CAI-CLAC website at www.CAICLAC.com. To review the CAI Public Policies, satisfaction research polls and other national resources visit www.CAIonline.org and click on the Issues & Advocacy tab. Pamela Voit, CMCA, AMS, PCAM is President/CEO of Voit Management in Murrieta, is Past-Chair of CAI’s California Legislative Action Committee (CLAC), and serves as one of CAIGRIE’s CLAC delegates.
CONNECT WITH GRIE • ISSUE FOUR 2014
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EDITOR’S LINK
I
n a prior life, I practiced tax law and dealt exclusively in the tax code and regulations. Tax law may be the most
infamous area of law known for constant change (and confusion). When I started my career as an attorney for homeowner associations, I never imagined community association law
Cang Le, Esq.
could equal the constant change (and confusion) of the tax code. Now, after many years of practicing community association law, attending hundreds of board meetings,
industry events, appearing and arguing HOA legal issues before judges, and teaching directors, managers, and non-HOA attorneys about HOA law, I would argue that community association law parallels the nuance, complexity, and constant change of tax law, or any other area of law for that matter. This issue will address the new laws and legal issues that face community associations. Evidence of the constant change and complexity of community associations, and the laws that the govern them, can easily be surmised from the articles and discussions within this issue. A legal and legislative issue is now an annual occurrence. Moreover, there are thousands of annual seminars, tradeshows, classes, publications – statewide, national, and international – that teach the millions of homeowners, volunteers, and industry professionals about the constant changes of community association law. As legal counsel for associations my job is ostensibly to advise on the law. Part of that role is constantly being informed of the changing laws that govern associations, and trying to effectuate positive changes in the laws at the legislative level, for associations and the industry. One of the unique things about this industry is how closely the legal professions work with all the other professions – from the managers, reserve analysts, insurance brokers, to the landscapers and other vendors that serve an association. Such a close relationship between the legal profession and others in the industry underlies how important community association law is to the day-to-day workings of associations. And to better serve associations and to continue to promote the positive growth of this industry, it behooves all those that serve and work for associations to stay abreast of the changes that affect associations. We hope that this issue will help to navigate the changing landscape of the community association world – at least for this year. In closing, as this is the last issue for 2014, I would like to thank all the members of this committee, authors who have contributed articles, and the executive director, for helping to make this magazine a success and great product.
Cang N. Le is a Senior Associate at Adams Kessler PLC and heads the firm’s Riverside office - 11801 Pierce Street, Riverside, CA 90505 and he can be reached at 1-800-4642817 or cle@adamskessler.com.
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ISSUE FOUR 2014 • CONNECT WITH GRIE
Grassroots Efforts to Effectuate Legislative Change By Robert Riddick, CMCA
O
kay, to some of you reading the title of this article, it might sound a little long-winded. To others, it might sound pretty straightforward, and to others, it might possibly sound like an attempt to sway legislation one way or another, regarding the legalization of, say, marijuana. Well, the fact of the matter is that it’s actually the second thought above, i.e., that it’s straight-forward in its meaning, and is exactly the phenomenon that’s happening throughout the great state of California these days. So, let’s examine this phenomenon a bit, in the hope that we (you and I), will leave this article a little more enlightened about exactly what’s going on here. Grassroots! The word itself is so illustrative of who and what it represents: The “common people,” the “middle class,” “rank and file,” or even “the masses,” all identify with the term. Whether you’re a group of coworkers at the office, who are concerned about pending legislation that you think might impact you all negatively, or whether you’re one of many property management company CEOs, whose concerns center around another pending piece of legislation that could, if passed, potentially positively impact the multiple client communities that your company manages, they both represent the same entity when it comes to attempting to effectuate legislative change, namely “grassroots.” And where do these so-called grassroots entities exist? Simple answer: everywhere! They are, or could be, the social clubs in your community, the homeowner association members in various associations throughout the state (we’ll come back to them in a moment), the members of the various social-political groups that represent special-interest issues, small business owners, the moms and dads of the PTAs, the Scouts, the Little League, you name it. It boils
down to just about any group of folks that, when necessary, come together collectively for the singular purpose of raising their voices behind a legislative issue (or against one) that they firmly believe will make their quality of life either inherently better or worse. And, they can sometimes be ferocious in both their dedication as well as their determination to effectuate legislative change.
Efforts to Effectuate Legislative Change
A good recent example is what happened with this year’s State Assembly Bill 1738, the so-called “new IDR Bill” that was passed and signed into law, despite the nearheroic efforts of the grassroots forces that tried desperately to defeat this onerous bill. Under normal circumstances, this may have been another bill driven by forces unaware of the true impact of the change it would bring to how association disputes are resolved. Instead, it allowed CAI-CLAC to marshal its grassroots forces together during the time the bill was being considered, in order to launch a drive consisting of over 2,000 individual constituent-written letters being sent to their elected representatives, expressing their non-support and displeasure with this bill. And, although not successful, the effort clearly demonstrated to those same elected officials the raw power of grassroots efforts designed to effect legislative change. In this particular case, it also served to better educate lawmakers on how goodintentioned laws can sometimes have bad consequences. We saw another example of the synergy of grassroots efforts when there were literally thousands of letters written to our legislators who were considering the passage of AB 2561 in its original form, which would have allowed for individual homeowners in associations to grow produce Continued on page 12 CONNECT WITH GRIE • ISSUE FOUR 2014
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Grassroots Efforts... Continued from page 11
(cabbage, corn, carrots, etc.) in their front and backyards, and also be able to market the produce grown. With an avalanche of grassroots correspondence from all over the state (and interestingly enough, from many of the thousands of homeowner associations throughout the State), the bill was amended to limit growth
to the backyard only where it would have minimum impact from a visual standpoint. The grassroots efforts are clearly in evidence during the spring of each year when our own grassroots folks make the annual journey up to the state Capitol in Sacramento to meet with our elected representatives, and to discuss with them what our positions are on the many and various pending bills that
especially impact the quality of life for association members throughout the State. I’m certain that you’ve read several past articles penned by our members that describe what our “Day at the Capitol” is all about, so I won’t burden you with more of that, except to say that there is probably no better example of the force, the persuasive power, and the sheer impact our grassroots folks have on those same legislators we elect (and, their meeting us for the first time) as when we visit their offices during Day at the Capitol. Arriving prepared to discuss in depth, the pros and the cons of the different bills that affect us, the grassroots efforts at effectuating legislative change are on clear display by and for all to see. And it doesn’t matter if, as part of our statewide grassroots efforts, you write a letter, or write many letters, send faxes, make those calls to your elected officials, or even take the trip up to the Capitol while proudly displaying our latest “position-buttons,” to better voice our support or opposition, the fact-of-the-matter is that all of us can, through our well-organized grassroots efforts, actually effect real legislative change in our State. The phenomenon continues. And, in the long run, that can only be a very good thing!
Robert is the current President of Sunnymead Ranch PCA, and a past GRIE-Chapter President as well. He is also serving his fifth year on the CAI National CAVC committee, and is a past CAI National Board of Trustees member. He will be ending his sixth year as a GRIE-Chapter Board member at the end of 2014, and will continue to serve as the CAI-GRIE CLAC Liaison.
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ISSUE FOUR 2014 • CONNECT WITH GRIE
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Article of the Year - Using Tablets for Board Members - Another Step Toward Going Green by Blake Morlet
Rising Star Valerie Reyes, Villa Park Landscape
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ISSUE FOUR 2014 • CONNECT WITH GRIE
Committee of the Year - Ambassadors
Community Outreach Volunteer of the Year - Kristie Rose CMCA, AMS, PCAM FirstService Residential
2014 Board of Directors Appreciation
2014 President's Appreciation presented to Kimberly Lilley, CMCA, CIRMS
Hall of Fame Inductee Lana Hamadej, LSM, PCAM - Avalon Management Group, AAMC with Hall of Famer & Past President Mark Jones, AMS, PCAM
Manager of the Year - Keren Calder, CMCA, AMS - Equity Management, AAMC
Community Associat ion of the Year - Ro setta Association - Linda Cooley and Adam Ar Canyon Community mi Management Group - Lana Hamadej, LS t - Managed by Avalon M, PCAM
Industry Innovation of the Year - CLS Landscape Management, Inc. Business Partner of the Year - Angelo Tomiselli - Rodent Pest Technologies, Inc.
Hall of Fame Inductee Michelle Hill President's Award: Weldon L. Brown, CCAM, CPM Weldon L. Brown Company
Chairperson of the Year Marlene Arredondo - Artistic Maintenance, Inc.
CONNECT WITH GRIE • ISSUE FOUR 2014
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Hot Bills for 2014: It Was a Very Busy Year! BY GARY KESSLER, ESQ.
T
he Legislature was extremely busy this past year passing new laws directly affecting common interest developments on several important subjects. Consequently, it is essential that association managers, directors, and members familiarize themselves with these significant changes to the Davis-Stirling Act.
New Association Duty to Repair and Replace Exclusive Use Common Area Civil Code section 4775 currently states that owners are responsible for maintaining their exclusive use common area (EULA), but is silent on the responsibility for repairing and replacing EULA. Effective January 1, 2017, the legislature has filled that gap by specifying that associations are responsible for repairing and 16 |
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replacing the exclusive use common area (unless otherwise provided in the governing documents). Although the new statutory language was intended to clarify the law, unanswered issues remain. For example, the statute does not define the terms “repairing” and “maintaining.” Should an association amend their governing documents to specifically define those terms? If so, what definitions should be used? Should such an amendment be added to the recorded CC&Rs, or to the rules that do not need membership approval? If EULA is damaged and needs to be repaired, should the Association make the repair and then attempt to recoup the repair costs from the member on the theory that he/she breached their duty to maintain under section 4775?
New Right to be Assisted by an Attorney or another person during an Internal Dispute Resolution Meet and Confer Session; Any Resolution or Settlement must be in a Writing Signed by Both Parties Civil Code sections 5910 and 5915 currently authorize the association and a member to utilize a meet and confer process for the purpose of attempting to resolve disputes informally (internal dispute resolution or IDR). The Legislature has amended these sections to state that each party has the right to be assisted by an attorney or another person (at their own cost) during the IDR meet and confer session. The amendments also clarify that in order to be binding and enforceable, any agreement reached during the meet and confer process
must be in writing signed by both parties. So that no one is surprised by the attendance of an attorney or other person at an IDR session, the board may want to consider amending their IDR procedures to require advance written notice if a party intends to bring an attorney or another person to the IDR meeting.
New Requirements for Preparing, Providing, and Charging for Transfer Disclosure Documents Civil Code sections 4528 and 4530 currently require the association to provide an owner or his/her designee with certain transfer disclosure documents in connection with a prospective transfer of the owner’s separate interest, and authorize the association to collect a reasonable
fee based upon its actual costs for providing those documents. The Legislature has amended these sections to do the following: 1) The association must collect its reasonable fee only from the seller of the separate interest; 2) The association cannot charge an additional fee for electronically delivering the documents in lieu of a hard copy; 3) The association must provide an estimate of the fees it will be charging for the documents on the statutory form upon receipt of a written request and “prior to” processing the request for documents; 4) Any fees which are charged for the documents must be “separately stated, and separately billed from all other fees, fines, or assessments billed as part of the transfer or sales transaction”; 5) Any documents which are not “expressly required” to be disclosed in Civil Code section 4525 “shall not be included in the document disclosure”; 6) The seller must provide the purchaser “at no cost” with current copies of all documents specified in section 4525 that are in the seller’s possession; 7) The fee for each document provided to the seller must be “itemized” in the seller’s disclosure statement to the purchaser; and 8) The seller must compensate the association, person or entity that provides the disclosure documents to the prospective purchaser.
New Laws Relating to Association Prohibitions on Low-Water Using Plants, and Use of Recycled Water for Landscaping Irrigation Civil Code section 4735 currently states that a governing document provision is void if it has the effect of prohibiting the use of low water-using plants or if it restricts compliance with a water-efficient landscape ordinance or a government water use restriction. That section has been amended to: 1) Clarify that “architectural or landscaping guidelines or policies” are also void if they have the effect of prohibiting the use of low-water-using plants or restricting compliance with a water-efficient landscape ordinance/ government water-use restriction; 2) Provide that governing documents and architectural guidelines/policies are void if they have the effect of prohibiting lowwater-using plants “as a replacement of existing turf;” and 3) Provide that an association may not impose a fine or assessment against an owner who reduces or eliminates watering of vegetation during an official state or local drought state of emergency, unless the association uses recycled water for landscaping irrigation. New law voiding governing document provisions which restrict using homeowners backyard for personal agriculture: The legislature has added a new Civil Code section 4750, which states that any governing document provision that prohibits or Continued on page 18
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Hot Bills... Continued from page 17
unreasonably restricts the use of a homeowner’s backyard for personal agriculture is void and unenforceable.
New Drought Related Legislation Concerning Pressure Washing of Exterior Surfaces The legislature has added a new Civil Code section 4736 which states that any governing document provision which requires pressure
washing of the exterior of a separate interest and any appurtenant exclusive use common area during a state or local government declared drought emergency is void. Gary Kessler is an attorney with Adams Kessler PLC, and has been representing California common interest developments for over two decades. He can be reached at (800) 464-2817 or gkessler@AdamsKessler.com
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The State-Wide Legal Forum: What We Learned… BY KIMBERLY LILLEY, CIRMS, CMCA:
T
his year’s Legal Forum: California Communities took place in San Diego at the Marriott Marquis, and, as usual was prefaced by delegates and liaisons from all over California coming together for their Annual Planning Meeting for the California Legislative Action Committee (CLAC). This was the time where the previous year’s legislative work was reviewed and plans were made for the upcoming year. Thursday night’s CLAC Benefit Dinner at Buster’s Beach House was the perfect way to celebrate the statewide coming together of CAI members to promote the heightened education and professionalism of our industry in California. Victoria Cohen, a homeowner, seemed excited about the growth and future of CAI when she said, “If Tom Skiba’s announcement pertaining to homeowner courses, taking CAI training in-house to management company offices, etc., then I believe CAI is poised for the national growth they deserve.” A manager in San Diego mentioned, “I liked the fact there were advanced classes for those that have been in the industry for some time. Further, I liked how the speakers engaged the audience so it was more interactive.” Mike Romo, from S&L Association Management in Murrieta, said, “What I walked away with is somewhat elementary, but essential, and that is knowing and understanding your HOA’s governing documents and management contract. Even if the governing documents are just bullet pointed for yourself so you have a better understanding of the community you are managing.” 20 |
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Another San Diego manager stated, “I attended both days and view this Legal Forum and the info received mainly as a great REMINDER tool. I truly appreciate hearing over again the vital aspects of the legal requirements of management and properly adhering to these requirements. I also gained additional knowledge and insight at each of the sessions I attended.” Sheila Robbins, General Manager for Village Park Community Association in Irvine, commented on two of the programs: The XYZ’s of Enforcing Governing Documents – “Relevant since it’s always a challenge for managers when Boards change,” and Deciphering the Code: How to Read and Understand Recorded Documents – “Most informative and advanced.” Becky Groenewold, General Manager for Ocean Hills Country Club in San Diego, agreed with Sheila, “The BEST part of the program to me was the program on Deciphering the Code. I could have listened to the speakers for much longer. They gave great info that I have been dying to learn from someone. You should have them attend EVERY event. This is great stuff and they just didn’t have enough time.” “My take away from the CAI Legal Forum was from the session titled, Risky Rules: The Hidden Liability Lurking in Your Rules. This well-done session brought out the fact that even though the wording of a rule may sound great to the creator(s), it is very important to have that rule reviewed and interpreted by other entities such as a Rules Committee and/or the Association’s legal counsel so as not to create a rule which may appear to be discriminatory or unnecessarily
restrictive due to interpretation,” says Betty Roth, Avalon Management Group, onsite General Manager at Sunnymead Ranch PCA. Another San Diego manager liked Enemy at the Gate: Responding to Criminal Activity in Associations, and gathered information relating to cameras and disclosures, crime prevention, tips for managers, and the attorney-client privilege. Regarding The XYZ’s of Enforcing Governing Documents, Joanne Pena, PCAM, from Horizon Management in the Greater Los Angeles area liked the, “Information regarding new legislation on IDR and the homeowners’ right to bring their attorneys. I have an IDR request pending now, and so this was particularly relevant. Also, the fact that outside agencies can be called on to assist in enforcing certain provisions of the CC&Rs… For example, the City can impose a Hotel Tax for short term leasing of units.” Cheri Leal from Paragon Equities in the Greater Los Angeles area said, “I picked up information I was not previously aware of and the team actually brought clarity to me on how the reserve study can sometimes ‘work.’ The speakers [for If You Read “Blah, Blah, Blah” When Reviewing Reserve Studies, This One’s for You] were a good match and played off each other well.” John MacDowell from Fiore Racobs & Powers had this to say about the State of CAI keynote by Tom Skiba, “I learned that community associations contribute more significantly to California’s economy than I had realized - $6 billion in operating funds, most of which go directly to the small
businesses that serve associations. Tom Skiba’s State of CAI talk drove this home, and inspired me as well. Our legislators and the general public need to understand this, and those of us in the industry need to understand it most of all. I also learned about a great publication, ‘State Advocacy: Key Issues,’ published by CAI National.” Carol Whitlock, a Desert Resort Management manager seemed to agree with John, “Frankly the high light of the conference was the opening with the State of CAI.” And Michael Berg, President of Berg Insurance Agency, took this away from the keynote speech, “Membership is key; looking at the long-term plans and who will be defining communities in the future.” Gregory Smith, the President of M&C Association Management in Stockton had a great overview of the whole experience, “This was my first ever CAI Legal Forum: California Communities, and I got a pretty broad perspective as a Liaison to CLAC. On Thursday, I saw the
dedication, commitment, and passion of community volunteers, managers, and business partners displayed as we discussed and debated about the best path forward for our industry in California. Thursday evening, I witnessed those same people and quite a few others enjoying each other’s company and contributing to that same cause they are passionate about. Friday was a great day of education and networking. I’d have to say it was an extremely successful
and encouraging event. We have an incredible group of volunteers fighting for our industry in California.”
Kimberly Lilley, CIRMS, CMCA, is Director of Marketing for Berg Insurance Agency and the current Chair of CAI-CLAC’s Fundraising & Event Committee and can be reached at kimberly@berginsurance.com.
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M , PCA M S L ej, amad H a n La ring Featu
Why did you become President of CAI-GRIE? (Did someone ask you? Were there other circumstances that led to you becoming President?) I had the privilege of serving as the Chapter’s President in 2000. Much has changed since that time in our industry. There were no specific circumstances that led me to becoming President a second time, but when asked if I would consider serving again for 2013, I was excited to jump back in. CAI has always been an important part of my career and the opportunity to give back for a second time, especially with the many industry changes proved to be exciting. When you became President of the Chapter, what was your main goal(s) for the Chapter? (Was there an obvious specific need? Did you have a theme? If so, why did you pick the theme, and how did you think it would further the Chapter as a whole?) My goal both times that I served as President was related to the educational offerings that our Chapter 22 |
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provides. To me, one of the biggest benefits of CAI is the education that is available for all categories of membership, but especially for managers and Community Association Volunteers (CAVLs). I did have a theme. My theme was Cruise CAI-Sail to Success. This was my attempt to tie in my love of cruising while setting a message that using the resources provided by CAI can contribute to your successes whether you are a manager, business partner, or CAVL. While we had fun tying the theme into most things that we did in 2013, I feel that the message, while simple was effective. While we can all go to the Internet and find information, attending a CAI program, workshop or other session, in my opinion, still proves to be the best “bang for your buck.” Not only do we have wonderful knowledgeable volunteers that can enhance our learning experience, but we are able to network with industry professionals, colleagues, and friends allowing us to combine knowledge with socializing with our members.
What did you feel were your biggest successes with the Chapter? I did not become President either time for personal successes. Any successes that the Chapter experienced during either term can be attributed to the entire Chapter, but most importantly to the volunteers who served with me on the board, to all of the committee members and chairs, and most importantly to the two executive directors that I was privileged to work with. While the organization is volunteer driven, having strong professional executive directors to work with and guide us is important to our successes as a Chapter. What did you feel were your biggest challenges with the Chapter? I think the biggest challenge that I personally encountered was to encourage CAVLs to attend our various offerings. As a manager, I know that it has always benefited me when board members arrive at meetings armed with knowledge of how to run their association. They
feel fulfilled in their volunteer role and their knowledge certainly makes my job easier. As a Chapter, we need to find a way to encourage CAVLs to attend our programs. I know that many who do attend our programs on a regular basis have consistently expressed to me that CAI is helping them be a better board member at their association. What do you see as the challenges facing the Chapter today? Our Chapter has grown significantly which is wonderful. We are now considered a large Chapter after many years in the medium category. The challenge that I think faces us is how spread out geographically our Chapter is. Our programs need to be scheduled at locations that encourage members to join us while at the same time not discourage others to attend. And while we have continued to experience growth, I think it is important that we look at our educational offerings to make sure that they are interesting and relevant and continue to bring in our members and make our valued business partners continue to invest their dollars in our Chapter. What advice/words of wisdom would you impart to the Chapter today? I would recommend that current and future leaders of the Chapter continue to keep things fresh. Make sure that our educational offerings are interesting and significant. Ask the members what is working well and be prepared and open to hear how we can improve. As our Chapter numbers grow, it needs to continue to advance in the programs that we provide as well as the total benefits of membership.
Lana Hamadej, LSM, PCAM is the Vice President of Avalon Management Group with offices in Temecula and Canyon Lake. Ms. Hamadej currently serves as Vice President of the Greater Inland Empire Chapter of CAI.
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Service Dogs & Associations How to take the bite out of the accommodation question BY TIMOTHY MAW, CMCA, AMS
I
t is estimated that there are between 70 and 80 million dogs in the United States. Approximately 37-47% of all households in the United States have a dog. These numbers are quite staggering, and are probably conservative since they most likely do not include wild dogs and unregistered dogs that are illegally bred and sold. Dogs are bred, raised, and trained for a variety of reasons such as show, police and rescue work, etc., and some are trained for either service or therapy. How many times has one been in a market, restaurant, mall, or other facility and seen an organization asking for donations to assist returning veterans with a therapy dog or a person escorting a dog wearing a yellow, maroon, or black vest? Those colored vests signify a service or therapy dog. 24 |
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Service dogs? Therapy dogs? Is There a Difference? Actually, there is quite a big difference! Generally, service dogs (not referred to as pets) are defined as working dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include but are not limited to, guiding visually impaired persons, alerting hearing impaired persons, assisting wheelchair bound persons, alerting persons suffering from seizures, alerting handicapped persons to take prescribed medications at a certain time, alerting diabetics of possible low blood sugar or oncoming diabetic shock in order to avert with insulin, and calming a person with PTSD during an anxiety attack. The assistance or task a dog has been trained to provide must be directly related to the person’s particular disability.
Therapy dogs are defined as having received training to provide comfort or emotional support. Therapy dogs do not qualify as a service dog because they do not provide assistance to a disabled person with daily living activities or functions. Rather, therapy dogs are prescribed by a physician, psychologist, or psychiatrist as part of a treatment process or program to alleviate a person’s depression, social, or psychiatric disabilities. All of the information provided above helps to understand what the difference is between service dogs and therapy dogs, but how does that affect associations? This article will primarily address service dogs. Homeowners associations differ in size, resident character makeup, amenities offered, governing documents, etc. However, all associations have a common
denominator in that they must reasonably accommodate persons with disabilities who require the use of a service animal. Per the California Department of Fair Housing guidelines, persons with disabilities have the right to use the services of a guide, signal, service dog, or other such designated animal and to keep such animals around their dwellings. Since governing documents differ, it is important that associations protect themselves and the resident requesting accommodation for the service dog. Associations can require proof of disability before allowing a service dog that violates an association’s restrictions (which may include size, breeds, and even limitations on number of dogs or pets). Associations cannot demand to know the specific disability, only that a person has a disability and the service dog is
required. Such proof is usually in the form of a letter from their attending physician. To overcome pet restrictions in an association, a person requesting accommodation must show that they have a legal disability and that the service dog assists with or helps alleviate the disability. Service dogs, because of their classification status, are not counted against the limited number of pets a person can have. Associations can adopt reasonable rules regarding the accommodation of service dogs within the community itself. A few examples of such reasonable rules may be that the service dog does not urinate or defecate in inappropriate locations, create a nuisance by unreasonably barking or whining, does not show aggression towards other persons or animals, must stay within a certain distance of its owner at all times unless
performing a specific task related to the owner’s disability which requires the dog to be working at a greater distance. Associations can prohibit pets from the pool area with the exception of a service dog. Allowing a service dog in the water is a different matter altogether due to health and safety reasons, unless the service dog has been trained to assist or perform a task directly related to the disability of the swimmer and does not pose a threat to the sanitary conditions of the pool. Some requests for service dog accommodations may not be legitimate. If a resident cannot provide the necessary documentation required by an association, then that association may prohibit a dog that violates the governing documents. It is important to note that under California Penal Code 365.7 any person who knowingly and fraudulently represents himself or herself through verbal or written notice, to be the owner or trainer of any canine licensed/ qualified/identified as a guide, signal, or service dog shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding 6 months, by a fine not exceeding $1000, or by both fine and imprisonment. It is recommended that boards consult with their legal counsel for any rule change pertaining to or for assistance in a service dog accommodation request. Timothy Maw, CMCA, AMS is a 9 year portfolio manager and Vice-President of CID Property Management, Inc. and can be reached at tim@cidpmi.com. CONNECT WITH GRIE • ISSUE FOUR 2014
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A Short Perspective on the September GRIE Luncheon Hoarder Presentation
W
hen Cang Le, of Adams Kessler PLC, asked me to join him in a presentation on hoarding, as one of the four topics being presented at the September GRIE Luncheon, I was honored. I did not realize at the time that hoarding was an issue that an association might have to deal with, nor did I realize that it could even be a concern in the community that I currently manage. After all, did I really have the kind of hoarders that we all see on TV? In researching hoarding for the presentation, it became clear that there are different degrees as well as types of hoarding. Hoarding is considered a mental health concern. In an association, it could be as simple as storing unsightly items in the front or rear yard of a property or as severe as collecting food within the residence. If the items continue to grow, this could be a sign of a hoarding issue. As I delved into the subject even more, I found that there are many agencies that can be of service to an
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association as well as the families of persons who may need help and do not have the ability to help themselves out of their situation. Since it may be a sensitive issue with possible discriminatory ramifications if not approached correctly, associations may want to seek legal advice before moving forward with non-compliance requests for what may turn out to be a mental health issue. Betty Roth, CMCA, AMS, PCAM Avalon Management Group Onsite at Sunnymead Ranch PCA
A higher level of engagement.
CAI Annual Conference & Exposition April 29–May 2, 2015 Caesars Palace Las Vegas Texting, talking and tweeting are all great ways to stay in touch, but nothing compares to face-to-face interaction. The best way to meet people, build deeper connections with colleagues and strengthen peer networks is through real interaction. And the best place to interact with your community association peers is at the CAI Annual Conference and Exposition.
Bring a higher level of engagement to your personal and professional network and meet face to face at the Annual Conference.
CONNECT WITH GRIE • ISSUE FOUR 2014
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