The Law Journal, Winter 2018 by CACM-California Association of Community Managers

IN THIS ISSUE FIVE POLICY QUESTIONS YOUR BOARD SHOULD CONSIDER BEFORE APPOINTING AN EMERGENCY PREPAREDNESS COMMITTEE: As the record setting wildfires give way to landslides and flooding, the question of emergency preparation is at the forefront of many director’s minds. INDEPENDENT CONTRACTOR OR AN EMPLOYEE? Without a doubt the stakes are high for any community association that is found to have misclassified one or more workers as independent contractors when they are truly employees of the association.

WINTER 2018

Five Policy Questions Your Board Should Consider Before Appointing an Emergency Preparedness Committee BY MARK G. GUITHUES, ESQ. AND MARK ALLEN WILSON, ESQ. – COMMUNITY LEGAL ADVISORS, INC.

s last season’s record wildfires give way to this season’s landslides and flooding, the question of emergency preparation is at the forefront of many director’s minds. Here are five critical questions to discuss with your board, and make part of the committee’s charter, before appointing its members.

1. Should We Create a Committee at All? There is presently no legal mandate requiring associations to develop disaster response plans. While directors have a duty of loyalty to protect the association and its assets, few experts believe this obligation applies to the care of the individual owners from outside disasters (See Francis T.). If the board decides to

undertake this responsibility, potential liability will likely be found when an emergency occurs and the Committee fails to perform or provide as promised to the members. If the board believes disaster planning is an important part of its obligation, liability can be minimized by keeping disaster plans simple, and gearing Continued on page 2

THE

Law Journal

A Practical Review of Community Management Law Published by

California Association of Community Managers, Inc. 23461 South Pointe Dr., Ste. 200 | Laguna Hills, CA 92653 949.916.2226 | www.cacm.org

2018 CACM LAW SEMINAR ADVISORY COMMITTEE CHIEF EDITOR Fred Whitney, Esq. Neuland, Whitney & Michael, APC

GUEST EDITOR John D. Hansen, Esq. Baydaline & Jacobsen LLP

COMMITTEE MEMBERS Mark G. Guithues, Esq. Community Legal Advisors, Inc. Zer Iyer, Esq. Angius & Terry LLP Ian McDonald, CCAM Action Property Management Linda Mootry, CAMEx, MCAM-ND The Management Trust Alex Sohal, Esq. Adams Stirling PLC Katrina Solomatina, Esq. Berding | Weil LLP

Because each crisis, and every community is different, there is no “one size fits all” formula to keeping safe and being prepared.

Margaret G. “Gen” Wangler, Esq. Fiore, Racobs & Powers, A PLC The CACM Law Journal is distributed four times annually to members, affiliates and 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 with your association’s legal counsel.

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Five Policy Questions... Continued from Front Page

Committee training toward disaster preparation and reconstruction protocols and away from promises of member assistance. When it comes to implementation of disaster response plans, the business judgment rule provides liability protections to those directors who rely on the review of licensed consultants. Carrying adequate D&O coverage on both your board and committee provides further liability protections under Civil Code § 5800.

2. What Goals Do We Want Accomplished by this Committee? Because each crisis, and every community is different, there is no “one size fits all” formula to keeping safe and being prepared. Boards should first focus on specific risks pertaining directly to the association (like an adjacent failing slope or historic flood area) and then on general risks affecting most communities (like earthquakes, power outages, and fires). Your directors should then determine whether to limit emergency preparedness to free activities like performing fire drills and surveying members’ needs, or whether to create a budget to finance advanced training, medical equipment, and assistance to members desiring to shelter in place. Board decisions regarding the scope of such goals must consider the size and location of the community, and the amount of people potentially relying on its (promised) services. 2 The Law Journal | www.cacm.org

committee’s calm understanding of disaster insurance coverage and the process for rebuilding the common area can fuel member unity with common purpose. While some boards are blessed with individuals who can break these processes down into step-by-step protocols, most lack focus for this sort of distant minutia. Chartering committee attendance at presentations by the association’s attorney (regarding repair obligations and authority to enter, the processes for special assessments and project wide reconstruction vs. abandonment and sale) and the insurance agent (regarding the processes for opening a claim(s), working with adjustors, and responsibilities for deductibles) can build a cadre of knowledgeable committee members (and future directors). Require them to attend your broker’s annual review of coverage and encourage their questions regarding coverage for natural and unexpected disasters.

5. What is the Association’s Authority to Undertake This Anyway? Another aspect of the CC&R analysis pertains to the association’s authority, if any, to undertake the capital expenditures necessary to fund advanced (“CERT” or first aid) training, water filtration systems or satellite radios to assist members sheltering in place. The decision to stock, monitor and maintain medicines is now a common request from diabetics representing almost 10% of our population. While the committee’s charter should make absolutely clear that no representative of the association is authorized to distribute medication under any conditions, significant security risk (theft) and equipment failure liability accompanies the decision to serve these member’s needs.

Conclusion 3. How Much is the Board and Management Willing (or able) to Participate in a Crisis? CCAMs understand that the emergency preparedness training mandated by Business & Professions Code § 11502(b)(1)(C) only goes so far, so an organized committee and well-implemented response plan will pay dividends during and after an emergency. While managers play a critical role in preparing for a disaster, including identifying preventative maintenance, performing periodic checks of common area components, distributing the disaster plan and keeping lists of vendor resources and emergency supplies (should the board decide to do so), leadership roles must be considered and clearly understood by the board, manager, and committee members. Planned substitutions (should the manager be elsewhere, or a Committee member abandon their post) ensure emergency protocols remain in place.

4. Should Insurance and Reconstruction Analysis be a Committee Responsibility? The Northridge earthquake and recent project-wide fires taught us that disaster preparedness includes a keen understanding of maintenance and reconstruction protocols in the CC&Rs and the requirements for triggering coverage, such as earthquake or property insurance. Rather than stoke a rising tide of chaos, a

Once the board has determined an Emergency Preparedness Committee and plan makes sense for their community, the board’s goals should be thoroughly discussed before the committee or plan are created. An analysis of the specific and general risks to the association should play a central role in the creation of such goals, which should then be memorialized into the committee’s charter along with obligations of the committee to understand requirements, limitations, and protocols described in the governing documents and insurance policies. Limiting the impacts of a catastrophic event via a well-planned emergency response will not only benefit the community but may also reduce the potential for liability.

ABOUT THE AUTHORS Mark G. Guithues, Esq. is an attorney and founding partner with the law firm Community Legal Advisors, Inc., with offices in Orange County and Oceanside. Mr. Guithues has been serving as general counsel to common interest developments for 25 years.

Mark Allen Wilson, Esq. is an attorney with the law firm Community Legal Advisors, Inc. Mr. Wilson has been serving as general counsel to common interest developments for one year.

www.cacm.org | The Law Journal 3

2018 has been a year of challenges like any year, and this year in particular we have been faced with a

Winter Maintenance and Weatherization and What Experts Want You to Know Increase time, decrease stress, save money and reduce risk to your community

number of natural disasters that have caused us to reexamine our

BY THOMAS E. MILLER, ESQ. & RACHEL M. MILLER, ESQ. – THE MILLER LAW FIRM

systems for emergencies. One topic you will find in this issue of Law Journal, as well as at future seminars, addresses emergency preparedness and what you should consider in preparing a community. We are also continuing our emphasis on mastering the foundational areas of expertise applicable to community managers. It is these foundations that not only provide a level of expertise, but take your role in a daily conversation about someone’s personal crisis from being an active listener and counselor, to being an educator to help a person understand how to process an architectural application or how a construction project will proceed. That knowledge informs the listener and gives them a level of confidence in the community manager that engenders trust and reliability. There is always more to learn and ways we can sharpen one another.

John D. Hansen, Esq. is an attorney with the law firm Baydaline & Jacobsen, LLP in Sacramento. He has been representing community associations for the past 9 years.

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reparing for winter weather means protecting our common areas from wind-driven rain, flooding and mudslides, especially in areas that suffered from California’s wildfires.

Important Time Limits Newer associations or those that were built in the last 10 years have the opportunity to work with their builder and rely on experts for building repairs, but only if presented to the builder timely. Time limits to present building performance needs can be found in California Civil Code § 896 et seq. The outside time limit for building deficiencies is ten years from the date of completion of the units or project. Other time limits occur at one, two, four, and five

year intervals from the dates of completion. What is important to know is that the SB 800 Process will in fact allow an association to recover funds they have already expended for experts’ inspections and common area repairs. Maintaining records of repair costs and inspections is very important.

When to Inspect: Precautionary Inspections in Early Fall Experts say that it is ideal to have inspections done in early fall. This will give management time to evaluate contractor proposals for winterization and repairs. Expert inspections will identify necessary repairs for budgetary purposes and educate the board on repair costs. Continued on page 12

Is Your Association Hiring an Independent Contractor or an Employee? BY JEFFREY A. FRENCH, ESQ. – GREEN, BRYANT & FRENCH, LLP

n April 30, 2018, the California Supreme Court adopted a new test for determining whether a worker is an independent contractor or an employee in the case of Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. The Dynamex ruling was largely unexpected and puts an end to a more relaxed independent contractor test that employers in California used for decades. Under the old “Totality of the Circumstances Test,” the courts looked at a variety of different factors, but the primary consideration was whether the company had the right to control the manner and means by which the worker performed the work. The Dynamex decision employs a new test called the “ABC Test.” From the outset, the ABC Test assumes the worker is an employee and it is up to the employer to rebut this presumption. Now, under the ABC Test, to qualify a worker as an independent contractor in California, the hiring party must demonstrate that: (a) The worker is free (contractually and in fact) from the control and direction of the hirer in connection with the work; (b) The worker performs work that is not the hiring entity’s usual business; and (c) The worker is customarily engaged in an independently established trade, occupation, or business

of the same nature as the work performed for the hiring entity. The worker must satisfy all three prongs to qualify as an independent contractor in California. For California employers, the critical prong is the second one, as it is often a difficult call as to whether a worker’s services are in the employer’s “usual business.” The examples provided in the Dynamex opinion were overly simplistic and clear cut: a retail store hiring a plumber or electrician to perform maintenance work, not a service normally provided by the retailer. Beyond rejecting the old California “Totality of the Circumstances Test,” this decision also underscores the legal presumption that workers in California are

fundamentally employees until the hiring entity proves otherwise through each prong of the ABC Test. This decision is important for California community

contractors can still be classified as such under the new ABC Test. To the extent that any independent contractor cannot satisfy the test, that a worker will need to

This decision is important for California community associations as associations will need to examine their use of independent contractors and determine whether current independent contractors can still be classified as such under the new ABC Test. associations as associations will need to examine their use of independent contractors and determine whether current independent

be reclassified as an employee and treated as such on a going forward basis. Importantly, community associations Continued on page 7

www.cacm.org | The Law Journal 5

What Factors Should a Board Consider When Deciding on a Collection Remedy? Foreclosure, Superior Court, or Small Claims? BY MATTHEW A. GARDNER, ESQ. – RICHARDSON | OBER

oards are happy to leave some details of collections to their managers. So, managers need to know what information to prioritize when deciding between Small Claims Court, Non-Judicial Foreclosure, and the Judicial Foreclosure. Picking the right strategy requires managers to help their boards answer three key questions.

How Big is the Debt? The delinquency amount dictates which options associations can pursue. On the lower end, associations cannot foreclose on a property where the assessments are less than $1,800. Unless that delinquency is one year old, any recovery of amounts less than $1,800 usually mean heading into small claims court. In the middle, associations can use any of the three methods to collect up to $5,000. Amounts above the $5,000 either require superior court action or a foreclosure sale.

How Much Equity is in the Property? Equity determines whether an association’s lien has any chance of recovery against the property. Since equity occurs when the value of the property exceeds current loans/claims, mangers need to do some digging. Boards are a good resource for knowing community values. Then managers can find vendors to

Small Claims Court

COLLECTION REMEDIES Judicial Foreclosure

Non-Judicial Foreclosure

Communicating the risks and benefits to the board before you start the process eases a lot of tension as collection moves forward. review claims against the property. While we would always file a lien, pursuing foreclosure may have limited value when there is no equity.

What are the Association’s Expectations for Recovery? Realistic expectations about recovery produce the best results. Is an owner employed? Someone with stable employment wants to prevent their paycheck from being

6 The Law Journal | www.cacm.org

garnished. Will an owner threaten bankruptcy? Are there other assets? Someone without other assets might fight for the property. Does the association want to stop the bleeding? Communicating the risks and benefits to the board before you start the process eases a lot of tension as collection moves forward. Now that you have answered the three questions above, which option makes sense? Look at each account and keep in mind the risks. You

may start to see a pattern that works for your board, but reviewing those questions gives you a checklist. Each method has its own strengths and weaknesses. Managers have to help boards understand those to get the best outcome. The decision boils down to choosing to chase the property or the owner. Small claims is about obtaining a money judgment against the owner, non-judicial foreclosure is about pursuing the property, and judicial foreclosure combines both strategies. Let your boards know the limitations so that they can make informed decisions.

Small Claims Court UPSIDE – Small claims court is great for associations that want to minimize costs. When the monthly assessment is small, or the total assessments owed are less than $1800, boards see using small claims as a win for everybody. At the end of the process, the association receives a judgment, and the owners pay less to bring their account current. Be sure to file an abstract on every small claims judgment to secure the award and put other creditors on notice. DOWNSIDE – A small claims judgment doesn’t guarantee payment. It is only effective if you can find assets to satisfy that judgment. Associations cannot use

attorneys in small claims court. While this keeps the cost down, it requires someone to appear in court on the Association’s behalf. It usually means paying the management company or using a director who is willing to volunteer their services. When owners don’t willingly pay, associations are stuck chasing a judgment.

Non-Judicial Foreclosure UPSIDE – Non-judicial foreclosure is great when associations only want to foreclose. The owner receives notices about losing their property and sacrificing any equity. Since the process is straightforward, owners who can do something about the debt will respond. Owners can use the property to get another loan or seek out other resources. If there are no options, non-judicial will result in the sale and a change in ownership. Foreclosure can speed up resolution by bringing in a new owner who can pay. DOWNSIDE – In nonjudicial, foreclosure is the only option. Without equity, or if a lender is threatening foreclosure, an association may spend funds that it cannot recover through the property. An association may have to walk away from a non-judicial foreclosure if they no longer own the property. That could be throwing good money after an already bad debt.

Judicial Foreclosure UPSIDE – Judicial foreclosure is a great choice when boards want to keep their options open. Associations can recover from either the property or the person – but not both. Getting a superior court judgment allows the association to pick the best method at the right time. The status of an owner’s employment or their mortgage could change at any time, so associations are not losing valuable time starting a process they cannot finish. DOWNSIDE – Some owners take advantage of court protection to drag out resolution. Owners familiar with lawsuits know how to convince a court to keep a file open while the debt builds. The longer a file is open, and the higher the balance gets, the less likely a positive recovery occurs. While associations have three effective collections options, managers need to think ahead. Asking boards to answer the three questions above, and then evaluating the different risks and rewards, will help managers and their boards pick the right tool for the right job.

ABOUT THE AUTHOR Matthew A. Gardner, Esq. is an attorney with the law firm Richardson | Ober located in Pasadena. He has been serving as general counsel, specializing in collections, for the community management industry for 12 years.

Is Your Association Hiring... Continued from page 5

cannot contract around the ABC Test. In this regard, an association cannot use a contract to satisfy all the elements of the ABC Test in order to create a legal fiction that magically transforms an employee under the ABC Test into an independent contractor. The bottom line being that regardless of what the contract says, any state agency or court reviewing the relationship will examine the facts under the ABC Test and determine whether the classification of the worker as an independent contractor is accurate. Without a doubt the stakes are high for any community association that is found to have misclassified one or more workers as independent contractors when they are truly employees of the association. While it may seem appealing to a community association to misclassify an employee as an independent contractor in order to save money and avoid the headaches of being an employer, the benefit is far outweighed by the potential exposure that it creates. If a state or federal agency determines that a worker has been misclassified, the association may be on the hook for significant state fines/ penalties; significant federal fines/penalties; state and federal tax issues; worker’s compensation issues; and disability insurance issues. Not to mention, the association will find itself exposed to the possibility of having to pay significant back wages as well. Also, the association may even find itself exposed to tort liability as a result of misclassifying the worker. Finally, the Dynamex court did not say whether the new ABC Test should apply only on a going forward basis. This issue could mean the difference between significant liability or merely a going forward correction, as needed. In view of the Dynamex decision and the attendant exposure that it creates for California employers, it behooves community associations to periodically examine the workers that they utilize and ensure that those being classified as independent contractors are truly independent contractors. It is important that all workers be examined on a case by case basis utilizing the new test created by the Dynamex decision. Also, it is equally important to maintain good records as to all workers in the event that an issue arises as the burden will be on the association to rebut the presumption of employee status. When in doubt about a worker’s status, a community association should consult with its legal counsel concerning these classification issues as an ounce of prevention may avoid the significant consequences associated with misclassification.

ABOUT THE AUTHOR Jeffrey A. French, Esq. is an attorney with the law firm Green, Bryant & French, LLP in San Diego and Coachella Valley. He has been representing community associations for 24 years.

www.cacm.org | The Law Journal 7

Prepare for the Sun by Strengthening Your Skills in Operating Recreational Facilities What Managers Should Consider with Pools, Gyms, and Programs BY DYLAN D. GRIMES, ESQ. – ANGIUS & TERRY, LLP

he recreational facilities provided within common interest developments are one of the biggest draws these communities have. For most of us who reside within these communities the idea of not having to maintain your own pool, gym or tennis court is of a great advantage. However, if these facilities are not maintained or abused by the residents they can become one of the biggest drawbacks to a community and may in certain circumstances even decrease property values. What does a manager need to know about the management and administration of common interest development recreational programs and facilities? The most frequently found amenities in common interest developments are clubhouses, golf courses, gyms, playgrounds, swimming pools and athletic courts (e.g. tennis and basketball courts). Each of these types of facilities present their own type of risks. CLUBHOUSES – The biggest risk associated with clubhouses are kitchens, and more specifically ovens and ranges. Clearly, whenever there is a source of fire, a potential risk of liability exists. GOLF COURSES – When it comes to sports facilities the

biggest risk is an injury to an individual related to site conditions. In order for there to be liability the injury would need to be related to the negligent maintenance or installation of the source of the injury. For instance, slip and fall hazards or a bench that collapses because of loose or faulty hardware. PLAYGROUNDS – Much like golf courses, the biggest

source of liability for playgrounds are injuries related to improperly maintained equipment. GYMS – Gyms also present liability issues when the equipment is not properly maintained. However, user error can also cause liability issues. The fact that gyms contain equipment that if misused can cause injury means that if proper notice of associated dangers is not posted these resultant injuries can create liability as well. SWIMMING POOLS – Clearly a swimming pool’s biggest liabilities are drowning and slip and fall cases. Like other facilities, it is imperative that these areas be properly maintained and that the proper rules are posted. 8 The Law Journal | www.cacm.org

Posting Rules As discussed above when it comes to pools, gyms and playgrounds the posting of rules is imperative to decrease the association’s liability. California Building Code § 3120B.1 provides standards for these postings. Every association should consult with their attorney about the content of these rules and the appropriate location, size and font of these postings. It may also be appropriate to have individuals sign a liability waiver when using such facilities as well.

Duty to Inspect, Investigate & Repair Under California Civil Code § 4775 associations are “responsible for repairing, replacing, and maintaining the common area.” Common areas typically include facilities, and as such the maintenance and repair responsibility of these facilities will fall on the association. It should be noted that these responsibilities can be limited or expanded within an associations’ declarations. In order to protect itself, an association needs to perform regular maintenance inspections of all common area components that are part of the association’s maintenance and repair obligations. These inspections should be performed by a licensed and bonded company and if issues are identified that pose life safety issues, they need to be repaired immediately or the facility needs to be closed until they are.

Clubhouses and Assembly for Political Purposes With the adoption of California Civil Code § 4515, associations are now required to provide the use of common area spaces for politicaltype assembly. This may create an increase in use of these areas and an increase in the types and numbers of people who use them. Because of this new legislation, and in the context of this discussion, it would be worthwhile for associations to take a closer look at the common areas to ensure that increased traffic will not impact their safety.

Can Amenities Be Eliminated? Under the business judgment rule an association may act in the best interest of the association. The interpretation of “best interest” is to act as a reasonably prudent person would in a similar situation. As such an association's power should be interpreted broadly and, the association, through its appropriate governing body, is entitled to exercise all powers of the community except those reserved to the members. Thus, if it is in the community’s best interest to eliminate an amenity for reasons such as safety or cost a board may do so. Many of the issues discussed above are heavily fact dependent. We always suggest that managers and boards consult their attorneys and managers before making any decisions regarding the maintenance, inspection and use of their facilities.

ABOUT THE AUTHOR Dylan D. Grimes, Esq. is an attorney with the law firm Angius & Terry LLP with offices in Temecula. He has been serving as general counsel to common interest developments for 8 years.

www.cacm.org | The Law Journal 9

The Pros and Cons of Having the Board of Directors Act as the Architectural Review Committee BY SEAN D. ALLEN, ESQ. – ROSEMAN LAW, APC

ne of the most important and yet overlooked powers granted to a homeowner association’s board of directors is the ability to appoint and delegate to committees. One of the primary committees that boards rely upon is the architectural review committee. Reviewing applications and plans for proposed architectural modifications can be one of the more time consuming jobs of a board of directors. The ability to outsource some or all of that responsibility to a committee can make an otherwise unwieldy volunteer position much more manageable. Although most homeowner association governing documents provide the board with this authority, there is also a common fallback provision which states that, if the board fails to appoint an architectural review committee, then the board itself shall serve in the role of that committee. This raises the question as to whether it would be better for the board to establish a committee or to simply handle the role of the committee itself. There are, of course, pros and cons on both sides of the issue. An association’s governing documents and Civil Code § 4765(a) generally require association approval before a homeowner may make a physical improvement or 10 The Law Journal

modification to their property or to the association’s common area. Depending on the association’s governing documents, the architectural committee may either have the authority to only make recommendations to the board or have direct authority to approve or disapprove applications. However, even if the governing documents give the architectural committee independent decision-making authority, the board often still retains some control by way of the appeal process and/or removal of committee members, since committees and their members typically serve at the pleasure of the board and may be removed at any time. However, there are some fairly

uncommon circumstances when an architectural committee may be established by the express terms of the governing documents and the committee members elected by the association’s membership. In that situation committee members may only be removed by way of a recall election, unless the governing documents provide otherwise. The primary concern when any committee is established is the protection from personal liability for the persons serving on the committee. Regardless of how the committee is formed, by statute association board members have a higher level of protection from personal liability for their decisions than committee members. However, it is common for committee members to have similar protections provided to them under the association’s governing documents and/or its insurance policies. Therefore, proper Directors & Officers (D&O) insurance coverage is necessary, and committee charters should be adopted

so that members understand their roles. The association’s governing documents can also be amended if needed to protect committee members. Ideally, the association’s D&O policy should cover all current and former directors and officers, all committee members and other community volunteers, the association’s employees, and if possible, the association manager and management company. The association’s governing documents should similarly provide indemnity for the directors, officers, and committee members. In addition to liability concerns, the board must take into account procedural considerations. Primarily, anytime there is a majority of the board serving on a committee, the committee meetings then become board meetings by definition. Civil Code § 4090(a) defines a board meeting as any “congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.” Therefore,

without properly noticing the committee meetings in this situation, the board would be in violation of the Open Meeting Act as set forth in Civil Code § 4900, et seq. Also, the committee meetings would need to follow all other procedural requirements for a board meeting, including allowing time for a homeowner forum as required in Civil Code § 4925. Thus, having the board serve as the architectural review committee simply means extra meetings for the association’s directors, and extra time spent in each meeting. Conversely, there is no law requiring that committees hold open meetings or post agendas, unless of course a majority of the board serves on the committee. The Open Meeting Act and its requirements only applies to meetings of the board, not to the association’s committees. Our recommended course of conduct is for the board to establish an architectural review committee such that the committee reports to and serves at the pleasure of the board. The committee should have no decision-making authority, instead it should only offer

recommendations to the board. Finally, regardless of how the committee is structured, the board should make sure the committee and its members are covered in the association’s insurance policies. It may be necessary to amend the association’s governing documents and revise the association’s insurance coverage to make this possible.

ABOUT THE AUTHOR Sean D. Allen, Esq. is an attorney with the law firm Roseman Law, APC located in Woodland Hills. He has been serving as general counsel to common interest developments for 10 years.

www.cacm.org | The Law Journal 11

Winter Maintenance... Continued from page 4

What to Inspect: The Expert Wish List

SAVE THE DATE

1. Inspect elevated decks and balconies to look for ponding and safety concerns. This can help prevent any further damage caused by a wet winter. 2. Clean weep holes in window systems every year to make sure the water can weep out of windows. 3. Check perimeter of the lower portions on buildings to ensure that weep screeds are not covered and have enough space to weep out properly. 4. Clean roof valleys and rain gutters every year. 5. Seal all roof penetrations every five years. 6. Maintain and clean on-site drainage systems. Many of the newer communities are constructed with on-site containment and filtration systems which are incorporated into site drainage systems. These systems typically lie in vaults and require periodic cleanout with

vacuum trucks. 7. Storm drain lines should be checked for obstructions and cleaned as necessary. 8. Surface drainage systems along common area slopes or across individual yards should be evaluated and cleaned at the start of each rainy season. 9. Unit owners should be reminded to maintain original design intent sheet flow drainage patterns and drain inlets within exclusive use common area decks. The failure to maintain the systems can result in the backup of water, infiltration in the common area walls, flooding, and damage to common area improvements.

few engineer specialties: STRUCTURAL: Analysis, design, construction, and maintenance of structures CIVIL: Primarily deals with the routing of site utilities, such as storm water piping and retention, sanitation, and natural gas PLUMBING: Designs domestic hot water heating systems, water softening systems, storm piping systems for roof drainage, and fire protection and sprinkler systems MECHANICAL: HVAC (heating, ventilation, and air conditioning) systems ENERGY: Deals with aspects such as energy efficiency, and the use of alternative energy such as solar photovoltaics GEOTECHNICAL: Deals with soil and rock mechanics, slope failures, and mudslides

Selecting the Right Expert

Instituting Maintenance Manual Requirements

While most general contractors and trade experts have the experience and expertise to evaluate the common areas of your association in preparation for winter weather, there are times when it is practical to seek the recommendations of a licensed engineer. Here are a

Original maintenance manuals provided by the developer are often large, lengthy, and onerous. However, some manuals do provide guidelines on which building components to inspect and when. Working with a maintenance contractor to create and/or implement

Monterey Plaza Hotel & Spa May 9-10, 2019

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manual requirements is a good option for community association managers.

Communicating and Educating Homeowners Look for preventative tips from general contractors, maintenance contractors, remediation service providers, and roofing contractors. Many of these providers send their association customers and community management contacts helpful resources to get through the winter season. These tips are a great resource and can be communicated to the membership through newsletters, town hall meetings, and email blasts.

ABOUT THE AUTHORS

Thomas E. Miller, Esq. and Rachel M. Miller, Esq. are attorneys with The Miller Law Firm with offices throughout California. Their firm has been serving community associations and specializing in construction defect law for 40 years.

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