FALL 2020 F E AT U R E D A RT I C L E S :
STAYING SAFE AND SANE AT HOME PG. 12
THINGS ARE TOUGH ENOUGH; BOARD MEETINGS DURING A PANDEMIC PG. 20 LIMITING EXPOSURE TO LIABILITY FROM USE OF COMMON AREA AMENITIES DURING THE PANDEMIC PG. 02
Let’s Avoid a COVID-19 Financial Crisis in Associations PG. 06
WHAT ACTIONS, IF ANY, SHOULD BE TAKEN WHEN A RESIDENT TESTS POSITIVE FOR COVID-19? PG. 16
Limiting Exposure to Liability from Use of Common Area Amenities During the Pandemic By Tyler Kerns, Esq.
O
Then, as California began its phased ne of the greatest challenges that associations have faced during the
COVID-19 pandemic has been keeping track of the various governmental orders, protocols, and guidelines applicable to common area amenities such as swimming pools, fitness centers, and tennis courts. For months, association boards of directors, managers, and attorneys struggled to make sense of confusing and sometimes conflicting information. Most associations closed their common area recreational amenities at the outset of the pandemic.
re-opening and counties issued their own re-opening protocols/guidelines, associations had to assess the risks involved in opening their amenities during the ongoing pandemic. As of the time of this writing, some associations have chosen to keep their recreational amenities closed, but many others have decided to re-open. Associations that chose to reopen have taken a variety of steps to reduce exposure to potential liability in the event that someone alleges to have contracted COVID-19 from using the association’s amenities. The most important thing that associations can do to limit exposure to potential liability is to comply with the applicable governmental orders, protocols, or guidelines relating to the amenities. The most obvious example is pools. Most counties have issued
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THE LAW JOURNAL | W W W. C AC M . O RG
A PRACTICAL REVIEW OF COMMUNITY MANAGEMENT LAW
2020 CACM FALL LAW JOURNAL EDITORIAL COMMITTEE CHIEF EDITOR Fred Whitney, Esq. Whitney|Petchul some form of protocols or guidelines that
ATTORNEY GUEST EDITOR Jeffrey Beaumont, Esq. Beaumont Tashjian
apply to pools. Even if the “guidelines”
COMMITTEE MEMBERS
read like suggestions as opposed to
Spencer Edgett, Esq.
Jill Morgan, CCAM
requirements, associations should make
Chapman & Intrieri, LLP
Allure Total Management
every effort to comply with the guidelines
Jackie Pagano, Esq.
Eric Kazakoff, CCAM
because they establish a standard of care
Roseman Law, APC
Canyon Lake POA
Garrett Wait, Esq.
Hamlet Vazquez, MCAMHR
that the association would likely be held to if someone were to sue the association for negligence. If a court had to determine what would be a reasonable standard of
Kriger Law Firm
Katrina Solomatina, Esq.
Action Property Management
Hopkins & Carley
care that the association’s actions should be measured against, the county guidelines would provide a basic standard to apply. Accordingly, boards should carefully review any applicable county guidelines and should be mindful that there may also be applicable guidelines issued by the State or by the Centers for Disease Control and Prevention (CDC). Boards should implement a plan to comply with any applicable governmental protocols or guidelines for operating the types of amenities available at the property.
An archive of past issues can be found under Member Resources at CACM.org. The CACM Law Journal is a digital publication distributed four times per year to all members, in addition to supporters of the California Association of Community Managers. DISCLAIMER: CACM does not assume responsibility for the accuracy of articles, events or announcements listed. Please be advised that the opinions of the authors who contribute to the Law Journal are those of the author only, and do not necessarily reflect the opinions of CACM and other industry attorneys. Please note that in a constantly evolving industry there are frequently multiple interpretations of the controlling statutes and case law. The information contained in these articles is of a general nature and not intended as legal advice. If you have any questions, please discuss them
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THE LAW JOURNAL | W W W. C AC M . O RG
Continued from page 3
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The board can then add layers of further protection by implementing precautionary measures that go beyond the minimum governmental standards. For example, most
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county guidelines describe some sort of signage
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that needs to be posted, but associations can
BILLING AND COLLECTIONS
post additional signage. The CDC produced a good sign for posting at pools. Further, boards
reading, and billing services for common interest developments. We work directly with property managers and community leaders to while saving the residents and the community money in the process.
should consider posting signage warning amenity users that use of the amenities is at the users’ own risk and that the association cannot guarantee that the amenities are a virus-free environment.
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Some boards are also asking amenity users to sign a waiver of liability agreement in order to use the association’s amenities. However, it can be logistically difficult for some associations to
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Further, some boards are adopting emergency rules relating to the use of the amenities so that the association can implement enforcement actions against owners who violate such rules. Boards should understand that adopting rules comes with a duty to enforce violations of those rules, and boards should not adopt any rules that they are not prepared to enforce.
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Additional signage, liability waivers, and adopting rules might help to reduce exposure to
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THE LAW JOURNAL | W W W. C AC M . O RG
potential liability but, again, they should be
an award is granted. Boards should consult
thought of as additional layers of protection
their insurance representatives on whether
and not as a substitute for complying with
their policies would include any coverage
applicable governmental guidelines. It is
against COVID-19 related claims.
important for boards (and managers) to stay up to date with respect to the applicable
Ultimately, boards must determine the level
guidelines, which are updated from time
of risk that they are willing to accept and
to time, and to be prepared to adapt as the
what precautions to implement with respect
guidelines change.
to re-opening amenities during the pandemic. Some boards may decide that the liability
Unfortunately, even if a board does everything
risks or the unbudgeted expenses to comply
right, someone could still sue the association
with the applicable governmental guidelines
alleging that they contracted COVID-19
are too great to be able to safely re-open at
while using the association’s amenities.
a particular time. Boards should regularly
It would be difficult for someone to prove
communicate with association members
that they contracted the virus from the
through meetings, notices, etc. regarding
association’s amenities, and they would also
the status of the association’s amenities,
need to establish negligence on the part of
the guidelines applicable to the use of those
the association in order to prevail in such a
amenities, and the considerations that
lawsuit. However, boards need to be aware
have gone into the board’s decisions with
that insurance is unlikely to cover claims
respect to the precautions that the board has
related to the virus, since insurance policies
implemented.
often include exclusions for communicable diseases. Therefore, if someone were to sue the association alleging to have contracted the virus as a result of some failure on the part of the association (such as failure to comply with applicable county guidelines) and there is no insurance coverage, then the association would have to pay for its own legal defense fees instead of having those fees paid by insurance. Even if the association ultimately prevails in such a lawsuit, the unbudgeted legal expenses could be substantial, and there is no guarantee it could enforce its own attorney’s fees award, if such 5
THE LAW JOURNAL | W W W. C AC M . O RG
ABOUT THE AUTHOR
Tyler Kerns, Esq. of Kriger Law Firm specializes in community association law. He’s worked in the industry for 10 years and is based in La Mesa.
Things Are Tough Enough; Let’s Avoid a COVID-19 Financial Crisis in Associations By Sandra L. Gottlieb, Esq.
F
irst and foremost, the pandemic and its effects are tragic. Decisions that need to
be made regarding collections can be hard on the heartstrings under normal circumstances and even more so during the pandemic. That said, under Corporations Code § 7231, boards
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of the association as a whole, including their obligation to collect assessments that enable the association to meet its financial obligations (even if there is a legitimate reason an owner cannot meet their financial obligations to the association).
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When the federal government enacted emergency orders to place a moratorium on
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mortgage foreclosures, many association boards wondered if they should follow suit. The reality is, however, that most associations cannot financially afford to stop collection actions for the non-payment of assessments. Associations
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THE LAW JOURNAL | W W W. C AC M . O RG
are non-profit with no room in their budget
can quickly deteriorate. This can cause a loss
for excess expenses and across-the-board
of property values, an increase in breach of
deferrals of assessments. Without the means
fiduciary duty claims against board members
to meet their financial obligations, history
and their associations, the levying of special or
shows that an association’s infrastructure
emergency assessments, and much higher regular assessments later on. The economic reality is that assessments are the primary revenue stream for most associations. Failure to require the payment of assessments accelerates and compounds the financial distress
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of an association, making all owners responsible for the debt of the delinquent owner(s). So, unless an association is flush with a surplus (and when that happens, everyone assumes the assessments are too high and not tied to the anticipated expenses in the annual budget), it must pursue collections during the pandemic, subject to relevant law, including applicable emergency orders. There are several ways that associations can do this.
Continued on page 8 7
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Continued from page 7 Before a board even starts to consider its collection options, it needs to review its collection policy to ensure that it is enforceable. The policy must conform to the governing documents and California Civil Code § 5730 and must be disclosed to the membership annually under Civil Code §5310. Also, an association must comply with the requirements of Civil Code § 5650- 5690 when collecting assessments. If the association fails to follow these statutory requirements, it may not effectively record a lien on a delinquent owner’s property until the association complies. Failure to comply may result in federal and state fair debt collection violations, resulting in significant defense costs and requiring the association, at a minimum, to restart its collection process, losing considerable time in dealing with its delinquent owners. Once a board assures itself that the collection policy and disclosures are in order, it should communicate with delinquent owners on a case-by-case basis and determine which delinquent owners are COVID-19 related and which are not. During the pandemic, one way an association can show compassion is to open the dialog with homeowners about what their options are before debts get too large. Then, follow the collection policy, timely 8
THE LAW JOURNAL | W W W. C AC M . O RG
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record liens to protect the association’s assets,
including the association. Thus, pursuing
don’t discriminate, consider the ability to waive
foreclosure against the property may have
late fees and interest, and approve reasonable
little financial benefit (other than a new paying
payment plans. Payment plans are the best
owner, which in the 2008/2009 economy was
option for an association to enable their
an important consideration for boards). Right
owners to catch up on their COVID-19-related
now, California property values are holding
delinquencies before the delinquency is too
steady. When the mortgage foreclosure
large for an owner to handle. If an owner had
moratorium is lifted, we may see an influx of
a good track record for assessment payments
distressed owners having no choice but to sell
before the pandemic, they will likely return to
their property quickly for under market value
good standing on the rebound.
to try to stop the bleeding, get some money out of their property, and end their ongoing
It is difficult to know how long the economic
financial commitment to an underwater
impact of the pandemic will endure. UCLA
property. Anticipating the decrease in property
Anderson Economic Forecasters predict that
values, there is no time like the present for
the recession will recover in 2022. If that is
associations to proceed with collection actions
an indication, associations need to keep tight
if their boards’ hope to get their money out of
financial constraints on its spending for that
a foreclosure action.
entire two-year period to make it through
California law affecting non-judicial and
without itself falling into financial distress.
judicial foreclosure of assessment liens can be
Typically, we recommend that associations keep
complex. Due to the economic hardships facing
payment plans to six months, even if there will
many Californians caused by the pandemic, we
be a balloon payment at the end. This is still
anticipate that courts may bend over backward
our recommendation, with the understanding
to keep homeowners from losing their
that the payment plans may have to be revisited
property. This, coupled with the anticipated
and renegotiated at the six-month mark as we
reduction of property values and equity
continue with a pandemic-caused recession
brought on by the current economic crisis, can
and the highest unemployment since the great
make assessment collection tricky. Boards
depression.
need to keep in mind the various methods of assessment collection knowing, in a distressed
In a “good” market, property appreciates,
market, they may not have a one-size-fits-
and an assessment lien with the potential of
all collection response. Make sure that your
foreclosure is likely to result in payment. In a
boards have detailed resolutions as to why they
“down market” where property values collapse
chose one method of collection over another to
due to a glut of inventory, there may not be enough equity to satisfy all debt holders, 9
THE LAW JOURNAL | W W W. C AC M . O RG
Continued on page 10
Continued from page 9
start impacting operations. Keeping everyone informed of the impact that delinquent
defend against claims of disparate treatment. To determine which collection option an association should pursue, boards should
accounts have on the association helps educate homeowners on the value of their assessments and the necessity for payment.
consult with an attorney or assessment collection company to review the delinquencies to enable them to make a recommendation. These professionals can
ABOUT THE AUTHOR
advise the board if the property has other liens that may extinguish the association’s lien, whether senior encumbrances are going through the foreclosure process or whether the possibility exists of collecting funds from a
Sandra L. Gottlieb, Esq. is a community association attorney with SwedelsonGottlieb, which serves Los Angeles, Orange County, Palm Desert, San Francisco and Ventura County.
judgment. A final thought: communicate and disclose to the membership delinquency issues when they
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THE LAW JOURNAL | W W W. C AC M . O RG
Letter from the
Guest Editor Dear Members: While many of us hoped that Fall would mean
procedures. Finally, this edition delves into
a return to “normal,� the novel coronavirus
how to navigate board meetings during the
remains a large part of our lives. By now we
pandemic.
have all had time to adapt and transition to
As you will see, the articles provide key
virtual meetings, new common area rules
takeaways, tips and considerations for
and restrictions, social distancing, increased
addressing the multitude of challenges that
sanitization and other health/safety protocols;
managers and their associations may face in the
yet, it seems that new challenges continue
current environment. The goal of this edition
to emerge. This Fall issue takes a look at the
is to provide managers with tools and guidance
new and sometimes challenging decisions that
to keep communities operating smoothly
community leaders face during the pandemic
as we push forward through the pandemic.
and the resulting changes to association
This edition is full of excellent information
operations.
and I hope it proves to be a valuable source
In this issue, you will find insightful and useful
of information. Thank you for continuing to
information that managers can utilize while
support our great industry and stay safe.
navigating these unprecedented times. As you know, an increased number of individuals are working from home and, among other things, this has likely resulted in an increased number of complaints and violations, especially those related to nuisances and parking. This issue covers how to successfully enforce rules while avoiding exposure to liability. A few articles also discuss measures associations should consider or implement to help limit liability arising from use of common areas, residents testing positive for COVID-19, and collection 11
THE LAW JOURNAL | W W W. C AC M . O RG
ABOUT THE AUTHOR
Jeffrey A. Beaumont, Esq., is a senior partner with Beaumont Tashjian, and has over 20 years of experience representing common interest developments.
STAYING SAFE AND SANE AT HOME Enforcement of Rules and Restrictions During COVID-19 By Laurie F. Masotto, Esq.
D
ear HOA, please DO SOMETHING about my neighbors:
COVID day 19: Ping – pong – The neighbors are using COVID 19 to hone their ping pong skills until midnight each night! COVID day 33: College students have come home with their cars, and have no permits. There’s no place to park! COVID day 75: A new patio cover is going up next door (another COVID home project). Do they have approval?
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THE LAW JOURNAL | W W W. C AC M . O RG
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DUTY TO ENFORCE. The CC&Rs and/ or Bylaws will set forth an association’s responsibility and authority to “enforce” the governing documents. This duty to enforce is also established by California law. See Posey v. Leavitt (1991) 229 Cal. App. 3d 1236 (an association may be held COVID day 114: Even the best music playlist doesn’t sound good at 4:30 a.m. when the neighbor exercises. When will this end?” As homes have evolved into offices, classrooms, gyms, and playgrounds during the COVID-19 pandemic, owners have increased their demands that associations “do something” to enforce violations. Even during “normal” times, determining the nature and degree of enforcement action needed is challenging. A recent television commercial in which a board president uses a chainsaw to cut down an owner’s mailbox for being two inches too tall mocks the concept of “too strict”. On the other hand, potential liability may result if a board takes little or no action, absent a reasoned and documented decision not to do so. The current pandemic does not mean enforcement should be canceled. Rather, careful but purposeful enforcement steps should be taken, in a reasonable and practical manner, to help associations avoid being sued for not doing enough.
liable for the failure to enforce); see also Civil Code § 5975(a) (covenants are enforceable). The manner and means of enforcement, particularly during the pandemic, must be considered in light of the governing documents and the law.
FOLLOW YOUR PROCESSES/ PROCEDURES. The governing documents, such as an enforcement policy, may mandate certain enforcement action, such as that a hearing “shall” be held or a fine “shall” be imposed, versus “may”. A board is required to follow its enforcement processes and procedures to obtain court relief. See Ironwood Owners Association IX v. Solomon (1986) 178 Cal. App. 3d 76. An association can be sued for failing to enforce, including for disputes involving neighbors. Cohen v. Kite Hill (1983) 142 Cal. App. 3d 642 at 653. With regard to the constant midnight ping pong game or thumping exercise routine, if the documents require a fine to be levied, do so after notice and hearing. Consider waiving or reducing the fine if the owner
Continued on page 14 13
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CINC-LawJournal-quarter.pdf
1
5/20/20
10:29 AM
Continued from page 13 complies within a reasonable time. Invite the owner to a hearing to discuss the problem and a possible solution, even if no fine is required. For the home-bound college students with cars, adopt emergency rules to issue additional temporary permits, with periodic review for continuing need. Strict enforcement and towing should remain for blocking fire lanes, entrances and fire hydrants.
DISCRETION TO PURSUE LEGAL ACTION. If internal enforcement efforts fail, the board can decide whether or not to pursue a lawsuit. See Beehan v. Lido Isle Community Association (1977) 70 Cal. App. 3d 858. During
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the pandemic where residents need to work, learn or exercise at home, and the courts are backlogged, a board needs to weigh the costs and benefits of a lawsuit taking into consideration the severity of the violation, the association’s chance of prevailing, and prospect for recovery of attorneys’ fees. Any reasoned decision to proceed, or not proceed, should be clearly documented in a board resolution.
TIMING. The board has some discretion as to timing of enforcement efforts. See Pacific Hills v. Prun (2008) 160 Cal. App. 4th, in which an owner installed a mechanical gate without
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association approval. Enforcement was pursued over several years before a lawsuit was filed. The owner argued the association 14
THE LAW JOURNAL | W W W. C AC M . O RG
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waited too long. However, the court found no
USE DISPUTE RESOLUTION. The
prejudice, as from day one the board and its
pandemic will inevitably tighten budgets,
legal counsel informed the owner the gate was
leaving less funding available for
in violation. Thus, the ability to try to resolve
enforcement efforts. Use the IDR meet and
violations over a period of time may be helpful
confer process between a board member
during COVID-19. Document all enforcement
and owner and/or their designee at no
efforts and any basis for extensions of time to
cost. If the dispute persists, formal dispute
comply, especially based on delays due to the
resolution is available, often at a lower cost
virus (e.g. a delay in completing construction or
than usual by video or phone conference.
landscaping). However, discuss with your legal counsel any firm dates by which action must be
COMMUNICATE. Tell owners that the
taken, including relevant statutes of limitation.
board appreciates their cooperation,
IMMEDIATE ACTION MAY BE NEEDED.
compliance and courtesy for one’s neighbors more than ever before, and that the strength
The primary function of an association is
and success of the community depends
to preserve the value and aesthetics of the
on it! Remind owners about architectural
community. See Cohen v. Kite Hill (1983) 142
requirements, and not to modify the
Cal. App. 3d 642. During COVID-19, planting
common area.
flowers in the common area may warrant a violation letter. However, if an owner embarks
Engaging in enforcement on a reasonable
on an unauthorized room addition or wants
and practical level, and documenting each
to pour concrete within the entire front
step in writing, will go a long way to help
yard, impacting drainage and appearance,
reduce liability during these challenging
then a more significant and swift response is
times.
warranted. Have legal counsel send a cease and desist letter. A temporary restraining order may be needed in order to prevent long-term irreparable harm. For the patio cover COVID-19 project already completed over the weekend, pursuant to the Ironwood case, an association must still review and render a written decision after the fact. The association can pursue removal or modification if it violates architectural standards.
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THE LAW JOURNAL | W W W. C AC M . O RG
ABOUT THE AUTHOR
Laurie F. Masotto, Esq. of Community Legal Advisors, Inc., has worked in the industry for 27 years, representing residential and commercial common interest developments in Orange and San Diego counties.
What Actions, If Any, Should be Taken When a Resident Tests Positive for COVID-19?
With this in mind, a common question that boards and managers might have is, “What do we do if there has been a suspected or confirmed diagnosis of COVID-19 or some other communicable disease within the community?” At the outset, given the unprecedented nature of this pandemic, and the health and safety risks posed by COVID-19, the board is entitled to require members and residents to inform the association (via phone or email) if in fact they have contracted or tested positive, or have traveled to what health organizations (the CDC, WHO or others) might consider a “high-risk” location. Note that while boards must be sensitive to confidentiality and privacy, associations
By A.J. Jahanian, Esq.
U
ndoubtedly, the novel coronavirus
Community Legal Advisors Inc. COMMUNITY ASSOCIATION ATTORNEYS
(COVID-19) pandemic has interrupted
the normal routines and operations of associations and their boards and management. While state and local health officials’ orders may be lifted or relaxed (or tightened in some cases), General Counsel
depending on the rise and fall of the infection rate, we can expect many of the last several months’ changes to association operations to stay intact for some time. The board’s and management’s due diligence and consideration for how to mitigate the possible transmission of
Serving Orange County, San Diego County, Inland Empire and Coachella Valley
the virus within their communities will continue
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to be relevant, even once virus-related orders are
AttorneyforHOA.com
completely lifted. 16
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• • • • • • •
ADA & DFEH Compliance CC&R & Bylaw Amendments Architectural Matters Contracts & Insurance Elections & Recalls Employment Law Legal Opinions
Assessment Collection • • • •
Timely Status Reports Responsive Paralegals Collectibility Analysis Judicial or Non-Judicial Foreclosures • Money Judgment Lawsuits • Small Claims Assistance • Post Judgment Recovery
are not subject to the privacy protections in the Health Insurance Portability and Accountability Act (HIPAA). These protections apply to healthcare providers only, such as doctors, hospitals, pharmacies, dentists and the like.
“POSITIVE” COVID-19 If confirmed, the association should conduct a
SPECIALTY DEPOSITS The strength of experience. The convenience of control.
phone interview with the resident, asking: a) When
City National® has supported homeowners associations and property management companies for more than 40 years.
they in fact tested positive and when they began
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engaging in self-isolation, if at all; b) Where they
Gerard LoBue | SVP Team Leader (949) 223-4090
have walked within the community (i.e., elevators, parks, fitness center, etc.); and c) If they have been in close contact with another resident or personnel of the association within the last fourteen (14) days since exposure (or whatever length of time the virus/communicable disease is considered
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alive and infectious, pursuant to health officials’ recommendations). Additionally, the board should consider sending a mass communication to all homeowners and residents, informing them of the confirmed case within the community, without divulging any personal information of the resident. While confidentiality should be maintained in the mass communication to the entire community, it may be reasonable in some situations, especially for senior communities, for the association to divulge to all residents of a particular floor/building cluster that
Architecture & Engineering Asset Management & Reserve Studies ■ Consulting Energy Efficiency Solutions ■ HOA Solutions Project Planning & Construction Management
there has been a confirmed case on their floor or in their building cluster. Going any further exposes the association, board and management to liability claims. Remember, all residents should assume each
Continued on page 18 17
THE LAW JOURNAL | W W W. C AC M . O RG
Serving all of California
(800) 262-4047 ■ GoCM2.com
•
What information the association/ management will be gathering and divulging to residents, in the interest of health and safety and the common welfare of the community;
•
What the resident’s notification requirements are for leaving the unit, using association facilities (i.e., elevators, etc.), etc.;
Continued from page 17 have the virus; thus, all residents should be required to social distance, wash their hands and wear masks. The resident should be reminded again to practice self-isolation, and he or she may be required to schedule garbage pickups, dog walks, or other activities which may impact the community as a whole. Specifically, and especially in high-density communities, it is reasonable for the resident to be required to contact management at least thirty (30) minutes prior to leaving his/her residence, so that management can make arrangements to clean/disinfect the common areas after his/ her use or walk-through. The resident should also be required to wear a mask and gloves when in the common area. It is recommended that the resident be required to sign a privacy authorization form, which outlines, among other things:
•
How the resident will interact with the board, management, staff, etc., e.g., how packages/deliveries will be handled.
“HIGH RISK” RESIDENTS, WITHOUT AN OFFICIAL DIAGNOSIS If a member or resident has come into contact with someone who has tested positive for COVID-19, but has not yet been diagnosed, he or she may be considered “high-risk”, and should be asked to self-isolate for a period of fourteen (14) days, as well as keep the association apprised as to their condition periodically and beyond the fourteen (14) day incubation period. The resident should be required to only enter common areas for ingress and egress and for essential services (i.e., medical reasons, shopping for groceries, etc.). Note that these procedures by and large hold true for infected staff members and guests of the community. Determining the date of infection and locations in the community that the individual had contact with is essential, in
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order to engage in the foregoing notice protocols, as well as thoroughly sanitize and disinfect the common areas. The staff member or guest should, similarly, be asked to practice self-isolation for fourteen (14) days before returning to the community. Staff, specifically, may be asked to provide the association with a negative diagnosis from a testing facility, depending on the severity of his/her illness and likelihood of contact with other members in the community; note though, the CDC recommends the time-based quarantine approach, because sometimes tests will still show positive, even if the person has recovered. All in all, 2020 has caused our community leaders to rethink how business and operations are handled. Many of the changes we are all working through are either uncomfortable or simply not
Your Future is Our Business!
feasible to implement. With the advice of legal counsel and upon the recommendations of public health officials, it is critical to determine which, if any, of the foregoing procedures are necessary and practicable to implement, based upon your community’s unique needs. Boards and managers should get ahead of these issues by establishing clear guidance early on, before infections are confirmed. Be proactive and stay safe!
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ABOUT THE AUTHOR
A.J. Jahanian, Esq. is an associate attorney with Beaumont Tashjian, where he devotes his time servicing the unique needs of the firm’s clients throughout California.
Board Meetings During a Pandemic The Pros and Cons of Telephone and Video Conferencing. By Dyanne L. Peters, Esq. and Tiffany N. Smith-Nguyen, Esq.
L
iving in the age of COVID-19 has
making traditional board meetings impractical
presented a multitude of challenges for
if not outright impossible. Even without these
associations to overcome. Chief among these
prohibitions, boards are forced to consider
are the impact of guidelines at the state and
whether in-person meetings are worth the
county levels limiting or banning gatherings
health and safety risk to themselves, their
involving people of different households,
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Continued on page 22
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laptops, and webcams, many have access to
Continued from page 20
a video capable device. Various platforms families, and the rest of the community. So, what is an association supposed to do in this new age of COVID-19? Options include postponing meetings indefinitely or limiting attendance and taking precautions, such as mask wearing and social distancing. Another is to delegate decision-making authority to a minority of board members so they can act without a board meeting. Admittedly, none of these are great options and each create liability exposure. If the board can’t meet, the association can’t function.
previously developed for remote business solutions allow for holding meetings via telephone or video conference. This article will focus on the pros and cons of holding association meetings via such teleconference or video meeting platforms.
THE OPEN MEETING ACT LIMITATIONS Before we dive into exploring teleconference and video meetings, we have to discuss whether or not these types of meetings are even allowed under current law. The Open Meeting Act, beginning at Civil Code §4900, imposes various requirements on board meetings.
Luckily, we’re living in the digital age. The vast majority of people have internet access and between cellphones,
Section 4910(b) prohibits the association (except for cases of emergency) from holding board meetings through “…a series of electronic transmissions, including, but not limited to, electronic mail…” Until the pandemic, the primarily concern was with unauthorized meetings via email, however, the law obviously considers other types to exist.
Continued on page 24
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when writing and passing these laws. What we do know is that the underlying purpose of the Open Meeting Act is to
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promote transparency in association governance and to allow association
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members to witness the board’s decisionmaking process. Allowing members the opportunity to call into meetings held via telephone or video call achieves this purpose. Boards should keep in mind the
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fact that meetings held via these methods
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are not clearly addressed and do carry some risk of liability.
MANAGING RISK If your board decides to implement
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telephonic or video meetings, there are ways to manage the risk of liability
Continued from page 23 So, are video calls considered a “series of electronic transmissions”? Furthermore, §4925(a) specifies that in the event of a telephonic meeting, “…that meeting or [open] portion of the meeting shall be audible to the members in a location specified in the notice of the meeting.” (Emphasis added.) Does the law require a line on speaker phone at a physical location? Or is providing call-in access information to the members sufficient? The short answer to these questions is, no one knows for certain because we are in unprecedented territory. The current pandemic has presented a situation not contemplated by the state legislature 24
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exposure for potentially violating the Open Meeting Act. Boards should obtain a written legal opinion regarding conducting board meetings via telephone or video conference. This allows the board to rely on the advice of an expert. This is an important defense consideration in the event a lawsuit is filed. Another step to manage risk is to make sure all owners have appropriate notice of meetings and clear instructions on how to access them. Including meeting links and call-in numbers on meeting notices ensures owners who wish to observe the meetings have the opportunity to do so, thus meeting the underlying purpose of the Open Meeting Act.
If possible, and a willing volunteer is
However, there are downsides to holding
available, associations may consider holding
meetings via telephone conference. There
meetings via telephone conference and
is a lack of control over who can attend/call
noticing a physical location where owners
into the meeting. Because the call-in number
may attend. The volunteer will attend the
is required to be posted with the meeting
meeting at the noticed physical location and
notice, people who are not members of the
place the telephone conference on speaker,
association (i.e., tenants, guests, the press,
allowing any owners present to listen to
outside public, etc.) may have access to
the meeting, satisfying Civil Code §4925(a)
“attend” the meeting without any way for the
(as discussed above). When choosing
board to screen the caller.
a physical location, the board should consider taking safety precautions, such
Another issue is that it is often difficult to
as whether an outdoor location is possible,
communicate effectively via teleconference
requiring masks, requiring social distancing,
due to the lack of visual cues, which may
etc. Although this option satisfies the
result in misunderstandings and confusion,
requirements of the Open Meeting Act,
and it becomes difficult to identify who is
the association may risk liability exposure
speaking and create an inability to control
should anyone attending the meetings contract COVID-19.
PROS AND CONS OF TELEPHONIC MEETINGS If an association decides to minimize health and safety risk by foregoing inperson meetings during the pandemic, the association should consider whether to hold meetings via telephone or video conference. Boards and members are probably more familiar and comfortable with telephone conferencing, which would make telephonic meetings an enticing option. Furthermore, holding a telephonic meeting may satisfy legal requirements, if conducted as described above.
25
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Continued on page 26
Continued from page 25
the decorum and candor of meetings. This is a real problem for associations who have that
These functions provide better control over
one member who argues every issue (there is
who attends the meeting. For example, if
at least one in every community!), or when
the association wants to limit attendance to
a meeting gets heated over a controversial
members, a moderator can check participants’
topic.
names against a master member list when allowing participants to join the video in a
PROS AND CONS OF VIDEO MEETINGS
waiting room.
An association may alternatively consider video conferencing. An advantage of video
Communication is more effective and efficient,
meetings is that they provide options to
it is easier to identify a speaker, and video
control meetings more efficiently. Most
conferences can share visually as well as verbally
of the platforms allow for a moderator to
via screen sharing.
control the meeting, including, muting attendees, holding the meeting in panel or
However, video conferencing also raises its
webinar mode, and options for a moderator to
own concerns. In order to utilize video meeting
“kick out” attendees for disruptive conduct.
platforms, participants need to have access to
Seeing is believing.
email, a device with speakers and microphone (i.e., computer, tablet, or smartphone), and internet. Additionally, some people may find the technology to be confusing and difficult to work with if they are not tech savvy. The association will also need to ensure that all participants are downloading the correct platform.
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an outside person hijacks and disrupts the video meeting. Associations should also be aware that many of the useful features on video platforms require a paid subscription. Finally, as described above, there is a question regarding whether holding a video conference complies with the
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meeting bombing. Meeting bombing is where
requirements of the Open Meeting Act.
BEST PRACTICES To avoid some of the pitfalls of holding a meeting via video conferencing, there are some best practices an association should consider. The association should not use a
ABOUT THE AUTHORS
public channel on the video platform. A private
Dyanne L. Peters, Esq. and Tiffany N. SmithNguyen, Esq. specialize in providing common interest developments with corporate counsel and litigation services at Delphi Law Group, LLP. Peters has worked in the industry for three years and Smith-Nguyen for five years. Their primary office is in Carlsbad, but the firm services San Diego County, Orange County, LA County, the Inland Empire, and the Coachella Valley.
channel which can only be accessed by those with a unique password should always be set up. Concerns about unauthorized access can be addressed by holding the meeting in webinar or panel mode and having a moderator. The moderator has more control over who enters the meeting by putting attendees in a waiting room and permitting only members to join the meeting. Alternatively, a moderator can mute all participants and unmute only board
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members or only select members during a homeowner forum. It is imperative associations review their options and develop a long-term strategy to address how meetings will be held. Consistency and communication with the membership will help members feel more comfortable and foster confidence in the board given the uncertainty and ever-changing dynamics and guidance amid the pandemic.
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2020 LEGAL DIRECTORY
ASSESSMENT COLLECTION SERVICES
ATTORNEYS
ALLIED TRUSTEE SERVICES Assessment Collection & Judgment Recovery Services Stefan Murphy Serving All of California For Over 27 Years 990 Reserve Dr., Ste. 208, Roseville, CA 95678 (800) 220-5454 smurphy@alliedtrustee.com • www.alliedtrustee.com
General Counsel and Assessment Collection Services Jeffrey A. Beaumont and Lisa A. Tashjian Woodland Hills, Laguna Hills, San Luis Obispo, Palm Desert, San Diego 21650 Oxnard St., Ste. 1620, Woodland Hills, CA 91367 (866) 788-9998 • Fax (818) 884-1087 info@HOAattorneys.com • www.hoaattorneys.com
ALTERRA ASSESSMENT RECOVERY
BERDING | WEIL
Assessment Collection Services Steven J. Tinnelly, Esq. Your Association’s Assessment Collection Partner 27101 Puerta Real, Ste. 250, Mission Viejo, CA 92691 (888) 818-5949 ramona@tinnellylaw.com • www.alterracollections.com
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Construction Defect Litigation, General Counsel and Community Association Law Steve Weil | Tyler Berding l Chad Thomas | Andrea O’Toole Walnut Creek | Costa Mesa | San Diego 2175 N. California Blvd., Ste. 500, Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com • www.BerdingWeil.com
FELDSOTT & LEE, A LAW CORPORATION Community Association Law Stanley Feldsott, Esq. Laguna Hills | San Diego 23161 Mill Creek Dr., Ste. 300, Laguna Hills, CA 92653 (949) 729-8002 • Fax (949) 729-8012 feldsott@gmail.com • www.cahoalaw.com
CHAPMAN & INTRIERI, LLP General Counsel & Construction Defect Litigation John W. Chapman, Esq. & Mark G. Intrieri, Esq. Alameda l Roseville l Orange County l San Diego 2236 Mariner Square Dr., Ste. 300, Alameda, CA 94501 (510) 864-3600 • Fax (510) 864-3601 jchapman@cnilawfirm.com • www.cnilawfirm.com
FIORE RACOBS & POWERS, A PLC Community Association Law and Assessment Collections Jacqueline D. Foster, Esq., Peter E. Racobs, Esq., & John R. MacDowell, Esq. The Recognized Authority in Community Association Law Orange County | Inland Empire | Coachella Valley l San Diego County (877) 31-FIORE • Fax (949) 727-3311 dweissberg@fiorelaw.com • www.fiorelaw.com
UNITED TRUSTEE SERVICES Trusted Partners In Assessment Collections Lisa E. Chapman Trusted Partners in Assessment Collections 696 San Ramon Valley Blvd., Ste. 353, Danville, CA 94526 (925) 855-8554 • Fax (925) 855-8559 lisa@unitedtrusteeservices.com www.unitedtrusteeservices.com
28 THE LAW JOURNAL | WWW.CACM.ORG
COMMUNITY LEGAL ADVISORS, INC. General Counsel & Assessment Collections Mark Guithues, Esq. & Mark Allen Wilson, Esq. Inland Empire | Orange County | San Diego 509 N. Coast Hwy., Oceanside, CA 92054 (760) 529-5211 • Fax (760) 453-2194 mark@attorneyforhoa.com • www.attorneyforhoa.com
DELPHI LAW GROUP, LLP Attorneys James R. McCormick, Jr., Esq., CCAL Southern California 1901 Camino Vida Roble, Ste. 100, Carlsbad, CA 92008 (844)- 4DELPHI • Fax (760) 820-2696 jmccormick@delphillp.com • www.DelphiLLP.com
EPSTEN, APC Community Association Law, Construction Defect, Litigation & Assessment Recovery Jon Epsten, Esq. & Susan Hawks McClintic, Esq. San Diego | Inland Empire | Coachella Valley 10200 Willow Creek Rd., Ste. 100, San Diego, CA 92131 (858) 527-0111 • Fax (858) 527-1531 jepsten@epsten.com • www.epsten.com
ATTORNEYS CONT’D FIORE RACOBS & POWERS, A PLC Community Association Law and Assessment Collections Jacqueline D. Foster, Esq., Peter E. Racobs, Esq., & John R. MacDowell, Esq. The Recognized Authority in Community Association Law Orange County | Inland Empire | Coachella Valley l San Diego County (877) 31-FIORE • Fax (949) 727-3311 dweissberg@fiorelaw.com • www.fiorelaw.com
GURALNICK & GILLILAND, LLP Association Law, Assessment Collections, General Counsel Wayne S. Guralnick, Robert J. Gilliland Jr. Serving Community Associations for Over 30 Years 40004 Cook St., Ste. 3, Palm Desert, CA 92211 (760) 340-1515 • Fax (760) 568-3053 wayneg@gghoalaw.com • www.gghoalaw.com
HICKEY & ASSOCIATES, P.C. Community Association Law David E. Hickey, Esq. 27261 Las Ramblas, Suite 120, Mission Viejo, CA 92691 (949) 614-1550 • Fax (949) 748-3990 dhickey@hickeyassociates.net • www.HickeyAssociates.net
HUGHES GILL COCHRANE TINETTI, PC Community Association & Construction Defect Law Michael J. Hughes, Esq., John P. Gill, Esq., Amy K. Tinetti, Esq. Complete representation of community associations 2820 Shadelands Dr., Ste. 160, Walnut Creek, CA 94598 (925) 926-1200 • Fax (925) 926-1202 atinetti@hughes-gill.com • www.hughes-gill.com
THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Founding Partner Rachel M. Miller, Senior Partner Serving Homeowners Associations Statewide for Over 40 Years San Francisco | Bay Area | LA | Orange County | San Diego | Inland Empire (800) 403-3332 rachel@constructiondefects.com www.constructiondefects.com
PRATT & ASSOCIATES, APC Community Association Law Sharon Glenn Pratt Los Gatos, CA 634 North Santa Cruz Avenue, Suite 204, Los Gatos, CA 95030 (408) 369-0800 • Fax (408) 369-0752 spratt@prattattorneys.com • www.prattattorneys.com
RAGGHIANTI FREITAS LLP Community Association Law, Construction Defects & Mediation David F. Feingold, Esq. & Matthew A. Haulk, Esq. Serving Bay Area Communities Since 1986 1101 Fifth Ave., Ste. 100, San Rafael, CA 94901 (415) 453-9433 • Fax (415) 453-8269 dfeingold@rflawllp.com • www.rflawllp.com
RICHARDSON OBER DENICHILO Community Association Law, General Counsel, Assessment Recovery Kelly Richardson, Matt Ober, Robert DeNichilo Throughout California 234 E. Colorado Blvd., Ste. 800, Pasadena, CA 91101 (877) 446-2529 matt@rodllp.com • www.rodllp.com
SWEDELSONGOTTLIEB THE JUDGE LAW FIRM Collection services, general counsel and mediation James A. Judge, Esq. Arbitrators & Mediators, Assessment Collection Services 18650 MacArthur Blvd., Ste. 450, Irvine, CA 92612 (949) 833-8633 • Fax (949) 833-0154 info@thejudgefirm.com • www.thejudgefirm.com
KRIGER LAW FIRM Community Association Law and Assessment Collections Bradley Schuber, Esq. 8220 University Ave., Ste. 100, La Mesa, CA 91942 (619) 589-8800 • Fax (619) 589-2680 bschuber@krigerlawfirm.com • www.krigerlawfirm.com
29 THE LAW JOURNAL | WWW.CACM.ORG
Community Association Law, Construction Defect, Assessment Collection David C. Swedelson, Esq. & Sandra L. Gottlieb, Esq. Los Angeles | Orange County | Palm Desert | San Francisco l Ventura 11900 W. Olympic Blvd., Ste. 700, Los Angeles, CA 90064 (800) 372-2207 • Fax (310) 207-2115 slg@sghoalaw.com • www.lawforhoas.com
TINNELLY LAW GROUP Community Association Law Richard A. Tinnelly, Esq. & Steven J. Tinnelly, Esq. Orange County | Los Angeles | Palm Desert | San Francisco | San Diego 27101 Puerta Real, Ste. 250, Mission Viejo, CA 92691 (949) 588-0866 • Fax (949) 588-5993 ramona@tinnellylaw.com • www.tinnellylaw.com
ATTORNEYS CONT’D WHITE & MACDONALD, LLP COMMUNITY ASSOCIATION LAW, CONSTRUCTION DEFECT LAW Steven M. White, Esq., Rob D. MacDonald, Esq. & James P. Hillman, Esq. COST EFFECTIVE SOLUTIONS BASED ON EXPERIENCE 1530 The Alameda, Ste. 215, San Jose, CA 95126 (408) 345-4000 • Fax (408) 345-4020 info@wm-llp.com • www.wm-llp.com
WHITNEY PETCHUL APC General Counsel Dirk Petchul, Esq. / Fred Whitney, Esq. 27 Orchard, Lake Forest, CA 92630 (949) 766-4700 • Fax (949) 766-4712 info@whitneypetchul.com • www.whitneypetchul.com
THE NAUMANN LAW FIRM, PC Construction Defect Litigation William H. Naumann, Esq. Los Angeles | Orange County | San Diego | Riverside | San Bernardino 10200 Willow Creek Road, Ste. 150, San Diego, CA 92131 (844) 492-7474 • Fax (858) 564-9380 elaine@naumannlegal.com • www.naumannlegal.com
RESERVE STUDY FIRMS ASSOCIATION RESERVES Reserve Study Firm Carol Serrano Reserve Studies for Community Associations 6700 Fallbrook Avenue, Suite 255, West Hills, CA 91307 (800) 733-1365 cserrano@reservestudy.com • www.reservestudy.com
WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Community Association Law Michael W. Rabkin, Esq. 11400 W. Olympic Blvd., 9th Floor, Los Angeles, CA 90064 (310) 478-4100 • Fax (310) 479-1422 mrabkin@wrslawyers.com • www.wrslawyers.com
CONSTRUCTION DEFECT ANALYSIS BERDING | WEIL Construction Defect Litigation, General Counsel and Community Association Law Steve Weil | Tyler Berding l Chad Thomas | Andrea O’Toole Walnut Creek | Costa Mesa | San Diego 2175 N. California Blvd., Ste. 500, Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com • www.BerdingWeil.com
THE HELSING GROUP, INC. Reserve Study Firm Ryan Leptien Serving All of California 4000 Executive Pkwy., Ste. 100, San Ramon, CA 94583 (925) 355-2100 • Fax (925) 355-9600 reservestudies@helsing.com • www.helsing.com
SCT RESERVE CONSULTANTS Reserve Study Firm Mike Graves, RS Finding Solutions, maintaining Communication, and providing Triage P.O. Box 890129, Temecula, CA 92589 (951) 296-3520 • Fax (951) 296-5038 info@sctreserve.com • www.sctreserve.com
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FENTON GRANT MAYFIELD KANEDA & LITT, LLP Construction Defect Litigation & CID Education Charles R. Fenton, Esq. & Joseph Kaneda, Esq. California & Nevada 2030 Main Street, Ste. 550, Irvine, CA 92614 (877) 520-3455 • Fax (949) 435-3801 cfenton@fentongrant.com • www.fentongrant.com
THE MILLER LAW FIRM Construction Defect Analysis & Litigation Thomas E. Miller, Founding Partner Rachel M. Miller, Senior Partner Serving Homeowners Associations Statewide for Over 40 Years San Francisco | Bay Area | LA | Orange County | San Diego | Inland Empire (800) 403-3332 rachel@constructiondefects.com www.constructiondefects.com 30 THE LAW JOURNAL | WWW.CACM.ORG
ASSOCIATION SERVICES NETWORK Vendor Compliance David Jeranko Vendor Compliance & Risk Management 24000 Alicia Pkwy., Ste. 17-442, Mission Viejo, CA 92691 (949) 300-3702 • Fax (877) 404-2008 davidj@asn4hoa.com • www.asn4hoa.com
Southern California
October 27th
Managers who are interested in playing may play free! RSVP here
November 5, 2020 A One-Day Virtual Summit Cost: $225
We're going virtual for this event and taking you on virtual tours of high rise & large scale properties! CCAM, CAFM and MCAM members earn 5 CEUs.
Being hosted virtually in