The Law Journal, Winter 2022

2022 CACM Winter Law Journal Editorial Committee

Chief Editor

Attorney Guest Editor

Fred Whitney, Esq. Whitney | Petchul

Matthew Gardner, Esq. Richardson | Ober

Winter 2022 Law Journal Committee Members

Allison Andersen, Esq. Roseman Law, APC

John Baumgardner Chapman & Intrieri, LLP

Jill Morgan, CCAM Allure Total Management

Hamlet Vazquez, MCAM-HR Wilshire Terrace Co-op

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 with your association’s legal counsel.

Letter from the Guest Editor

The end of a year is a good time for reflection, thinking about our experiences (good and bad), applying lessons learned and celebrating victories earned, and setting sights on the upcoming year. What should we do with that knowledge? How do we make the best use of our year in review? Share. Strategize. Communicate.

Communication remains the key to success. Our boards and our owners rely on us to guide them, because they know we have the skills and drive to meet their challenges. But those communities cannot function properly unless we can identify those obstacles, create a vision for operation, and provide regular updates on our progress, and that requires us to be able to communicate effectively.

This issue is devoted to giving our readers some tools that they’ll need for improving communication. We asked our authors to come up with those topics that would help lead to better communication for better communities:

• Outlining how to answer questions around the latest on fire management

• Tackling the increasing impact of mental health challenges in communities

• Identifying strategies for limiting the disruption of owners within the community

• Finding productive uses for executive committees

• Learning new tips on how, where, what and when to communicate with the owners and your boards

While community management remains a challenge, it is one that we all embrace. Learning how to share our experience helps us realize both that we are in a community where we all share the same journey and that we can rely on one another to succeed.

A big thanks to our contributors, our readers, and our committee for a great issue giving us a fresh start to the upcoming year.

Matthew A. Gardner, Esq., is a partner of Richardson | Ober who works with community associations, homeowners, and HOA boards of directors to amend governing documents, resolve homeowner/member disputes, and manage assessment delinquency matters.

“Communication remains the key to success.”

Can An Association Deny A Homeowner Access To Their Property?

By Stanley Feldsott, Esq. and Andrew S. Parslow, Esq.

It is a well-known and somewhat overused analogy that rather than being a whole, property rights are a bundle of sticks. This is most often used to explain the division of rights between a property owner and the government; however, when the property in question is part of a homeowners association, the association also holds some of these allegorical sticks.

Perhaps, the most important property rights are the rights to access and exclude others from a property. There are several situations where a right can be exercised, such as condemnation, where the government can restrict a homeowner’s access to their property, but what about homeowners associations? Under extraordinary circumstances, an association is able to restrict an individual’s right to access their property.

This article will discuss various scenarios, when an association may consider whether they have a right to restrict the homeowner’s use of their property, and how best to handle such situations.

Failure to Pay Assessments

It goes without saying that an association would be unable to perform its obligations to the community without income from assessments. Due to the necessity of assessments, a homeowner becoming delinquent on payments is the most likely reason for an association to consider restricting an owner’s right to a property.

While residents have an ownership interest and a right in common area amenities, it is easy to restrict their access or use if such authority is provided for in the governing documents. However, this can be extremely difficult to enforce without cameras, fences, or other security measures that may not be worth the costs.

If the association wants to go further and remove the owner from their own property there are two manners of foreclosure available: judicial foreclosure and private sale. Regardless of the method, such an action is governed by California Civil Code § 5720, which requires that either the amount owed be at least $1,800 or the property be secured by a lien that is over 12 months delinquent.

In a judicial foreclosure, the association files a formal complaint in court with foreclosure as a cause of action, often alongside an action for open books and accounting. This approach has the benefit of a sale overseen by the court and resulting in good title, which makes it easier for future purchasers to get title insurance for the property. Additionally, notifying the delinquent homeowner of the filing for judicial

foreclosure often leads to a dialogue where the parties are able to determine a payment plan.

Private sale of the property is a self-help method of foreclosing the property. Under this method, the association sells the property without the involvement of the court. While it tends to be more costly for the property owner to oppose, private sale has the downside of not yielding good title, which will likely require an action for quiet title in the future and may result in a lawsuit from the property’s former owner.

Of the two methods, judicial foreclosure is usually the better approach as it eliminates future title concerns and is less likely to spawn unexpected future lawsuits.

Dealing with Problematic Homeowners

In any community, there will inevitably be some homeowners who cause problems for their neighbors and/or the association. In particularly bad circumstances they not only frustrate but potentially endanger the safety of the community. Such homeowners can also raise concerns with the FHA and ADA. Two particularly relevant examples are hoarders and those that harass their neighbors.

Hoarding can lead to fires, pests, and the devaluation of properties in an association. The serious implications of this behavior have led to some associations prohibiting it in their governing documents. Dealing with hoarders has become increasingly difficult in recent years as the newest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) classifies hoarding disorder as a mental illness rather than a potential symptom.

Due to this change, associations must be weary that their behavior is not discriminatory in violation of the FHA and ADA and seek to offer reasonable accommodations when necessary.

In an opposite vein, the FHA and ADA require that an association intervenes in certain instances of harassment to avoid liability. 24 CFR § 100.7 holds associations directly liable if they fail to prevent harassment based on membership in a protected class.

In such situations, the association’s actions are limited as they cannot simply ban a homeowner from the community. Generally, the best approach is to first contact the problematic resident and notify them of the consequences of their behavior as outlined in the governing documents. If such behavior continues, the association should impose fines and whichever penalties are permitted by the governing documents.

In extreme situations where the state of the hoarder’s property no longer appears safe or the harassment has become particularly severe, it is generally best to avoid self-help when possible. In cases where there is no immediate danger, the association should take time to ensure that their intervention is necessary and acquire adequate proof, then seek a restraining order.

If the association believes there is impending danger due to a homeowner’s conduct, they should contact their attorney and seek a temporary restraining order, until a more permanent solution can be attained.

Recommendations

Before attempting any action that may impact a homeowner’s rights, it is always advisable to first voice any and all concerns with the homeowner and seek an amicable resolution if possible.

Open communication can help avoid unnecessary conflict and better preserve a sense of community. If those informal communications do not resolve the issues, the association should then contact an attorney to review the reported conduct with respect to enforcement rights. An association’s options in such a situation may be limited by the particulars of its governing documents and pertinent local law.

are attorneys with

Law Corporation that specializes in community association law. Feldsott has been in the industry for over 50 years and Parslow for one year.

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Stanley Feldsott, Esq., and Andrew S. Parslow, Esq.,

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Droughts & Fires

By Jasmine F. Hale, Esq.

TIPS ON SURVIVING THE EXTREME WEATHER APOCALYPSE

Extreme weather events are happening with greater frequency and more potent impacts. In 2021, CalFire estimates approximately 2,568,948 acres throughout California were burned resulting in $55 billion in damages. The National Drought Mitigation Center estimates at least 97.5% of California is located within a “severe drought” zone, meaning longer, higher intensity fire seasons.

Virtually, all communities are affected by drought and fire concerns. This article will provide communities with a roadmap on how to successfully (and legally) plan for these issues before it is too late.

Communities cannot fully eliminate the risks associated with extreme weather events, but they can lower their negative impacts. The most important step is to proactively identify physical modifications that can be made to the community, from landscaping changes to facilities improvements, and to take actions to mitigate fire dangers and drought conditions.

For example, Assembly Bill 38 (Defensible Space Inspections) mandates certain residential properties to obtain defensible space inspections and provide homeowners with fire safety information.

Cal-Fire also has guidelines for creating defensible space around homes, which can be used for all structures within a community as a means to lower wildfire dangers. These guidelines start from the structure and extend outwards, detailing different actions to take within a 100’ perimeter, including the removal of dead vegetation, use of fire-resistant materials the closer to the structure you get, mowing grass to reduce the fuel source for fires, and tree trimming.

Proactive drought resistance planning is also important given the State Water Board’s expanded emergency water regulations. They impose bans on the watering of “non-functional turf,” which includes grass that is solely ornamental, not regularly used for human recreation (i.e., civic or community events), and not on a sports field.

Residential yards are presently excluded from the water ban. These water use limitations are unlikely to lift anytime soon. For this reason, homeowners and associations should investigate ways to lower their water consumption, most of which goes to irrigation and landscaping.

Associations should consider steps they can take to reduce their water usage including the more obvious: the replacement of turf and non-native landscaping with drought-tolerate substitutes or the installation of a recycled (greywater) water system, which uses non-toxic wastewater, to water landscaping.

replacements that could violate a common provision in CC&Rs regarding owner approval for “capital improvements.”

While fire hardening and water conservation measures may not be as attractive as a lobby renovation or new pool, the long-term benefits and cost savings cannot be underscored or ignored.

proactive mitigation or the association’s landscaper to talk about the long-term cost savings and benefits of switching to drought tolerant landscaping. Have a local water board or Cal-Fire representative explain their restrictions. They are happy to help, but you have to ask to receive that help.

3Educate and engage your community.

You may be wondering, “With all these steps to take, how is your community supposed to pay for them?” The costs associated with the changes can be daunting; however, too few people know that various programs, grants, and tax incentives exist to help associations and homeowners take the necessary steps towards lowering their fire risk and improving their drought tolerance. Boards should investigate the available financial incentives and provide this information to their communities.

Water districts often have “cash for grass” programs where they pay customers to remove grass and replace it with drought tolerate plants. The California Wildfire Mitigation Program provides financial assistance with fire hardening measures. Additionally, inquire with your insurance carrier whether fire and drought risk mitigation steps will help lower your insurance premiums.

Once a board identifies any available programs, tax credits, etc., they have a clearer picture of the actual costs. Civil Code §5605 permits boards to impose a special assessment of 5% without owner approval. Boards can also temporarily borrow from reserves per Civil Code §5515 or when available, use reserve funds for fire resistant or drought tolerant options. Be careful for any

The importance of community engagement regarding a board’s effort to lower their community’s fire danger risks and improve their drought tolerance should be clear.

If a board is going to seek a special assessment, notice to owners is required at least 30 days before the vote. Beyond this, boards should communicate throughout their due diligence to explain their decisions. Boards should not be surprised when their unengaged community suddenly shows up to a board meeting with pitchforks when they see grass dying without understanding why.

Proactive communications can help to blunt some of the questions that pertain to landscaping changes for drought purposes. Communicate not just the what (i.e., we are removing landscaping and replacing it with drought tolerant materials) but the why (i.e., we will save costs on water bills, irrigation repairs, and monthly landscaping charges) as well.

Boards are not alone in having to communicate with their homeowners on the risks and costs imposed by wildfires and drought. All manner of support exists to supplement a board’s efforts.

For example, invite the association’s insurance agent to talk about the higher costs associated with insurance premiums and the benefits of

In addition to board actions for the common areas, boards can adopt rules that apply to the separate interests. Whether voting to impose Cal-Fire defensible space recommendations or mandatory water limits in line with local water ordinances, boards should work with legal counsel to determine (a) if they have the authority to adopt the rule and (b) whether it is appropriate to adopt the rule under its emergency rule making authority per Civil Code §4360(d).

The extreme weather apocalypse we are living in does not have to mean unchecked fire dangers or the end of beautiful landscapes. Communities have numerous options available that with a little planning, research, and creativity can help lower costs, improve resilience, and set their community up for long-term success.

Jasmine F. Hale, Esq., is a partner at Berding & Weil, LLP that serves as corporate counsel to the firm’s clients in the Northern California area and a veteran community association attorney with 20 years of experience.

1Be proactive to lower fire danger and drought risk.

2Proper budgeting improves your likelihood for taking extreme weather mitigation steps.

MAKE YOUR COMMUNICATIONS ACCESSIBLE TO

Effective communication is something every association can improve and something that members crave. Communications are ineffective when the members cannot access or understand them, which is particularly challenging for residents with hearing or visual impairment.

Making communications more accessible to those with disabilities is merely a benefit in some situations and will be a requirement in others. However, the association may benefit by considering some communication strategies that could benefit all members.

By John D. Hansen, Esq.

EFFECTIVE COMMUNICATIONS – GENERALLY

Associations do more than most residents know, from routine maintenance that keeps their buildings watertight, to working to beautify a park, to working on new safety improvements in the common area. Management may be fielding 50 emails per day, but the owner who does not get a response within 24 hours thinks they are being ignored.

There may also be interesting news to share from local law enforcement about mailbox break-ins or ways to keep your home safe when on vacation. A community yard sale may be planned, and a committee may be working behind the scenes to get people signed up. All of this is great information, but if the members aren’t informed of any of this, all they will believe is that their association takes their money, sends them violation notices for their garbage cans, and sends them a big packet once a year.

The following are topics for newsletters and e-blasts to keep members informed, and highlight all the association is doing:

1. Maintenance updates and reports

2. Manager reports, including average number of contacts in the association per week and when inspections are performed

3. Planned projects and budget updates

4. Reports and tips from local law enforcement

5. Common violations that are occurring and being addressed

6. Reminders about certain rules

7. Helpful tips from your landscape contractor about projects and maintenance

8. Scheduled social events.

Producing a newsletter each month takes time and creativity, and associations should consider creating a committee for this purpose. There are many people who are skilled at communicating and enjoy it.

A communication committee can be given certain parameters and encouraged to get articles from other residents. Peppering

association news with an article about a good recipe or favorite nature walk will make your newsletters more interesting and increase readership.

ACCESSIBLE COMMUNICATIONS

California and federal law prohibit discrimination on the basis of disability, and that requires an association to make its communications reasonably accessible to persons who are visually or hearing impaired, especially upon request for an accommodation (42 U.S.C.A. § 3601 et. seq., Cal. Govt. Code § 12955 et seq.; and Civil Code § 51 et seq.).

The manner in which communications must be made accessible varies based upon the importance of a communication. The general rule is the more important a communication is, the more an association must do to make it accessible.

A common example is that a restaurant can ask a hearing-impaired person to point to a menu to select a meal, because selecting a meal is not a significant issue. However, a medical office may be required to provide a sign language interpreter, because discussing diagnoses and treatments is very significant and requires complex communications.

In an association, this may mean facilitating the use of technology at board meetings that will caption verbal conversations onto a tablet that a hearing-impaired person can read. This may be as simple as ensuring the acoustics in the room are sufficient for the disabled person’s device to hear the sounds, or it may be appropriate for an association to purchase the technology that facilitates this and make it available at meetings. When it comes to something more significant, like a disciplinary hearing or IDR meeting, the association may need to pay for a sign language interpreter at its expense.

If an association is using video conferencing for its meetings, be thoughtful about when graphics are being shared on a screen. Visually-impaired residents will not be able to see certain images or colors on a screen, so if it is necessary, verbally explain what is being shared, what it looks like, and why it is important. For hearing-impaired persons, you can ensure that the closedcaptioning function is turned on and remind everyone to speak slowly and allow each other to finish before saying something.

For a newsletter or website, associations should consider producing the document in MS Word, instead of PDF images or hard copies, and using readable text on a website. A visually-impaired person could then use a screen-reader program that will read the text aloud to them.

Instead of only posting notices, they could be also emailed and posted on a website in a location that is easy to navigate to, as opposed to being behind several layers of menus. Instead of mailing a letter to a visually-impaired person, notices should be emailed in MS Word form or written in the body of the mail, so that a screen reader can be utilized. It would also accommodate visually-impaired residents by sending an email alerting them when something is posted to a website.

TAKEAWAYS

Whether dealing with individual owners who are requesting accommodations to comply with California and federal fair housing laws or providing routine updates and reports to the community, it is important to communicate to members in a manner that they can receive and understand.

We want them to know all that the association and management are doing, and we want all residents to feel welcome and included in their communities. Making these adjustments can be as simple as changing a program, using digital communications to supplement mandatory postings and mailings, and being ready to be creative when someone asks for a change in methods of communication.

D. Hansen, Esq., is a partner with Baydaline & Jacobsen LLP that specializes in general counsel to community associations and has 13 years of experience in the industry.

John

Executive Committees: Rules of Engagement

By Karyn A. Larko, Esq. and Christina S. Saad, Esq.

The scope of authority of a committee is largely dependent on its composition. A committee composed solely or partially of persons other than board members is generally tasked with advising the board on specific matters or exercising powers granted to that committee by the governing documents (e.g., some architectural review committees (“ARCs”)).

Conversely, executive committees (“ECs”) are composed of two or more current directors and only current directors in accordance with California Corporations Code § 7212. ECs are given decisionmaking power that would otherwise be exercised by the board.

An example of an EC is a litigation committee comprised solely of directors established to communicate with the association’s legal counsel and make decisions pertaining to a lawsuit. Another example is an ARC comprised solely of directors tasked with exercising the board’s authority under the governing documents to approve or reject architectural applications.

WHY AN EC?

An EC should be formed when a board needs or desires to delegate tasks for which it is responsible. This need may arise when a board is dealing with a complex, time-consuming matter that is ongoing and necessitates attention between board meetings. This need also exists when a dispute, conflict, or other specified issue arises between a director and the association.

In the latter example, the interested director (i.e., the director whose interests are contrary to the association’s interests) should not serve on the EC due to their conflicting interests.

California Civil Code § 5350 requires directors to recuse themselves from voting on certain matters. Depending on what actions may need to be taken to resolve those issues, it may also be prudent to form an EC to address these matters. That way, an EC can have the background and information to see the matter from beginning to end.

ECs should not be formed simply to exclude a director from generally participating in board discussions and votes. However, if a director is jeopardizing the interests of the association by, for example, revealing confidential or privileged information to others, it may be appropriate to form an EC to exclude that director from meetings where the board discusses those sensitive matters.

By doing this, the board can maintain control over information that, if made public, might expose the association to liability or otherwise disadvantage the association. Your boards

should consult with their association’s legal counsel before forming an EC (1) to ensure that the EC is properly established and (2) to understand the legal consequences that may arise from this action, including, with respect to directors’ access to association information and records.

THE BENEFITS OF FORMING AN EC

There are benefits to having ECs. An EC comprised of directors willing and able to volunteer more time to the association can address complex, time-consuming matters more quickly than the entire board.

Additionally, since an EC has fewer members, scheduling meetings and coming to a collective decision on matters is often easier. Finally, if less than a quorum of directors serves on an EC, the EC meetings are not subject to the Open Meetings Act (i.e., the meetings are not subject to the same notice and agenda requirements as board meetings).

In the event of a dispute involving a director, especially a dispute that could lead to litigation, there are important additional benefits to establishing an EC of disinterested directors (i.e., directors not adverse to the association in the matter) to handle the dispute.

By establishing the EC, the board can prevent the interested director from obtaining privileged or confidential communications and documents related to the matter (e.g. correspondence between the EC and the association’s legal counsel, expert findings), better protecting the association’s attorney-

Should the community you manage have an executive committee?

What are the pros, cons and rules of forming such committee?

client privilege and its interests. The board can also avoid the appearance of impropriety and better protect the association and directors individually against potential liability.

In order to preserve the association’s attorneyclient privilege, all EC meetings pertaining to the director dispute must be held in executive session and all legal guidance, EC discussions, meeting minutes and other documents and information related to the dispute cannot be disclosed to persons outside of the EC, including other directors.

FORMING AN EC

Have your boards review their governing documents prior to establishing an EC. The governing documents may already establish the EC, grant the board committee-making authority, or conversely, limit the board’s committee-making authority, as well as impose requirements on how ECs are formed or who may serve on them.

Unless otherwise provided for in the governing documents, ECs may be formed by a resolution or charter adopted by a quorum of the board pursuant to Corporations Code § 7212.

A resolution is an official expression of the opinion or will of the board that includes the reasons for that opinion or will. A charter is a founding document that is typically more detailed than a resolution and outlines the EC’s responsibilities and authority. The resolution or charter should be clear in the authority that the board is delegating, so the EC does not expose the association to greater

liability or challenge.

When forming an EC, your boards should consider:

1. Whether any directors have conflicts of interest that disqualify them from appointment or perceived conflicts that make appointment unwise,

2. Whether certain directors have knowledge and experience that would benefit the EC,

3. The time commitment needed to serve on the EC,

4. Whether the governing documents dictate which directors serve on the EC (e.g. based on the offices they hold),

5. Whether California law dictates the composition of the EC (e.g., Civil Code § 5501 requires the treasurer to serve on an EC that reviews the association’s financials),

6. And the willingness of directors to serve on the EC.

The board should also keep in mind that if the EC is composed of a majority of the board, the same notice and agenda requirements for board meetings will apply to EC meetings. Having said this, the authority of an EC composed of a quorum of the board is less likely to be challenged. Thus, ECs established to handle controversial matters should generally include a quorum of the board.

Karyn A. Larko, Esq., and Christina S. Saad, Esq., are attorneys with Epsten, APC who specialize in community association counsel and have a combined 16 years of experience in the industry.

MENTAL HEALTH AND HOA s

The last few years have been hard on almost everyone. Between shutdowns, quarantine, ever changing heath mandates, and economic upheaval, it is no wonder our society seems to be struggling with mental health issues at an unprecedented level.

Unfortunately, in the context of homeowners associations, the mental health struggles of one resident often spill over to other residents, managers, and even the association itself. When these issues do spread, many in the community look to the association to take some sort of action.

Veterans in the industry are reporting resident mental health related issues of both greater intensity and higher numbers than ever before. That places managers on the front line in handling both the complaints and the person who may be struggling with mental health issues.

In this article, we will discuss different types of mental health issues more commonly seen by associations and the various tools and limitations associations have to address them.

Potential Danger

ByTiffanyN.Smith-Nguyen,Esq.&DyanneL.Peters,Esq.

the association to take action against their neighbors, for every reason or no articulable reason at all.

A resident’s declining mental health can take several different forms. A common report might be an elderly resident beginning to show signs of senility, such as wandering the common area in a dazed or confused state or frequently forgetting where their parking space is located.

These cases, while sad, are often the least disruptive to the community, because the resident mainly poses a danger to themselves as opposed to others. It can take quite some time for other members to determine whether their neighbor is simply aging, is an increasingly forgetful hoarder, in danger of burning their house down, or even poses other threats to the community.

Another potentially subtle mental health issue is when a member of the association becomes increasingly sensitive or even paranoid. These episodes become aggravating, because they result in numerous complaints and demands for

It is easy to dismiss this resident as a busybody and an annoyance. After all, this is a popular sitcom trope such as Bewitched’s Mrs. Kravitz or Violet Bucket from Keeping Up Appearances. What is not easy to dismiss is the amount of work one such person can cause for management and the board and the concern of whether or not this type of behavior will escalate into something more serious.

The third type scenario is less benign and amusing. There has been a sharp increase in residents who are physically or verbally abusive. They engage in threats or even violent outbursts directed at neighbors, association vendors, managers, or even the board. From expletive laden outbursts to chasing people with bladed weapons, firearms, or even a motor vehicle, incidents involving these residents often create a demand from the community for the association to take immediate action.

With greater incidences of mental health related issues than ever before in common interest developments, when and how should an association intervene?

Association Action

In each situation, before deciding on what action to take, the association must determine whether it has the authority and the obligation to take any action at all.

For example, does the association have the power and authority to contact an elderly resident’s family members? How does the association know the resident is actually senile and does it matter? Is it an actionable breach of privacy to use association records for such purpose?

A board that intends to help stabilize the community interest may be exposing the association to more liability by stepping outside its authority to act and breaching its fiduciary duty.

In anticipation of just such a scenario, the association should seek emergency contact information for each new resident as they move in. This may help shield the association were it to contact an emergency contact to report concerning behavior.

So, where does the association’s responsibility begin and end?

Enforcement of Governing Documents

One answer to this question is often contained within the association’s CC&Rs. Some CC&Rs grant the board broad power to take action when the health and safety of a member or resident is implicated while other sections empower the board to act only when the wellbeing of the community as a whole is at issue.

One of the main purposes of the association is to enforce the governing documents, especially when it involves common area. If a resident’s conduct violates the governing documents, such as violation of a nuisance provision or code of conduct, the association is usually empowered to take action to address the matter to preserve the community interests.

However, an association can only act within the confines of the governing documents. This means that the board is required to follow the procedures set forth in the association’s enforcement policy in enforcing behaviors that violate the governing documents.

While the regular progression of warning notices, hearings, and fines may be an effective strategy in dealing with normal complaints, the association may need to escalate enforcement against those who have exhibited aggressive behavior or those with other mental issues who cannot comprehend the nuisance they are causing in the community.

Associations should review their current

enforcement policies to ensure that they provide some flexibility in enforcement actions and consider adopting a code of conduct.

Neighbor-To-Neighbor

Sometimes residents with mental health issues do not actually violate an association’s governing documents and cause private disturbances with other residents, or the mental health issues lie with the busybody neighbor who unceasingly reports innocuous behaviors.

Unfortunately, associations are often not designed to address complaints between neighbors (i.e., “neighbor-to-neighbor disputes”). This means an association may have no or limited ability to involve itself in issues between neighbors unless the complained of behavior/ actions of a resident are a violation of the governing documents.

Residents who demand further action may be reminded that owners can look to other authorities who may have jurisdiction over the matter, such as the police, social services, etc.

An association may consider adopting a communications policy and/or a neighbor-toneighbor policy to address excessive or nonviolation complaints. It may also suggest that the parties try to engage in mediation to see if a neutral party can find some way of resolving the dispute.

Social Services

For a resident who is in the first category (i.e., senile or in mental decline, etc.), the association may not have the ability, due to privacy concerns, to reach out directly to family members or doctors to obtain care for the resident. In cases like this, it may be advisable for the association to contact their county’s social services department.

In 2005, California enacted a state law called the Mental Health Services Act (MHSA). The MHSA provides state funding to counties for mental health programs. Each county has resources such as a confidential access line and information on how to get mental health assistance for the resident.

Law Enforcement

For abusive residents, law enforcement involvement may become necessary. Associations are not authorized or equipped to immediately handle a resident who displays physical aggression. A manager, board member, or other resident should not be expected to physically restrain or force/confront another resident as it may put them in danger and/or cause liability for the association.

Law enforcement should be called, and the association should keep a record of all official

reports. Owners who report an immediate threat should be directed to call law enforcement, and associations should be on standby to provide contact information for nearest police, law enforcement, or other emergency service.

Restraining Order

If law enforcement has failed to resolve a situation with a resident who persistently displays aggressive behavior towards management, other vendors, or the board, the association should consider seeking a temporary restraining order (TRO) from the superior court.

A restraining order targets personal conduct by the harasser and may require the harasser to stay away from the victim. Depending on the conduct, restraining orders can be valid for up to three years and offer protection to both the target of the conduct and their family. Associations should work with their legal counsel to determine if a TRO is appropriate.

Dealing with people who have mental challenges requires managers to be aware of the different types of behavior that may impact their communities. Often, the standard enforcement efforts are not capable of deterring future violations. Associations should consult with their legal counsel to determine the best course of action to take with regard to a resident who displays the types of behavior described in this article.

Tiffany N. Smith-Nguyen, Esq., and

L. Peters, Esq., are attorneys with Delphi Law Group, LLP and have 7 and 5 years of experience in the industry, respectively.

Dyanne

“You’llGuessNever What

I Just Heard!”

By Nicole J. Soria, Esq.

In the typical southern California community, where board members reside alongside homeowners, it is easy for board communications to slip into some of the friendly neighborhood chit-chat or otherwise find their way into the unintended ear.

Community managers are highly aware of the confidentiality surrounding board of director communications both in and out of executive session board meetings; however, board members may not realize the significance of this protection when they have breached it or the extent of the consequences the board could potentially face as a result of a breach.

Believe it or not, just a slight slip of the tongue in neighborly passing can have a significant impact on the community when board members speak to owners regarding confidential matters.

When board members’ communications with owners become inappropriate.

The Attorney-Client Privilege

When a board seeks out, interviews, or hires legal representation, an attorney-client relationship is established, and certain protections are automatically implemented. The attorneyclient privilege protects information and communications exchanged between the lawyer and the lawyer’s client, including prospective clients (Cal. Rules of Pro. Conduct, r. 1.18 (State Bar of Cal. 2018).)

According to the U.S. Supreme Court, the purpose of the privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader interests in the observance of law and administration of justice.” (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).) The most prevalent protection is that of communications between the board and the attorney.

The attorney-client privilege survives the contract between the lawyer and the client. This means that even in situations where a board has ended a contractual relationship with an attorney, the protection surrounding their communications remains in place.

The attorney, even if fired by the board, is strictly prohibited from disclosing information regarding the property, homeowners, board concerns, contracts, or any other issues raised in the context of seeking legal advice (Cal. Rules Of Pro. Conduct, r. 1.6(a)-(d), (identifying several exceptions to this rule).)

Who is the Client?

In most attorney-client relationships involving an HOA board of directors, the client is the association. The board is the fiduciary of the association and, as such, has a fiduciary duty to represent the best interests

of the association and the homeowners. However, property managers serve a critical role in the relationship between the board and counsel.

As representatives of the board, managers are included under the attorney-client privilege. In this capacity, managers are extremely valuable to the facilitation of information amongst the parties. They assist in maintaining successful and productive relationships between the attorney, board, and themselves, which is vital to the success of the board.

The privilege is waived if the client makes a public statement regarding the protected issue. Once the privilege is waived, any statement or document, directly related to the issue, could potentially become available to opposing counsel in a legal dispute. An example of this would be a board in executive session, with counsel present, discussing a potential discrimination suit against the board.

If even one board member shares details of the conversation to an owner or member of the public, they put the protection of the privilege in jeopardy. What is becoming more prevalent is people mistakenly discussing these issues on various social media platforms.

An individual may think they are simply venting to their friends about something happening at work, but in doing so, they unknowingly waive the privilege and forfeit its protections.

When can a discussion outside of a board meeting place the association’s D&O coverage at risk?

Public policy recognizes the importance of community members volunteering for these uncompensated positions and by including them in D&O policies and shielding them from personal liability, essentially, eliminating a deterrent for potential members (See Corp. Code § 5047.5(a).)

D&O insurance protects volunteer board members from being held personally liable for decisions they make in the performance of their duties. In short, if a board member, while acting as a board member, causes a loss to the association by either doing or

refraining from doing something that would be considered reasonable for a board member, they will be protected by the policy and cannot be forced to personally pay for the loss (See generally Civ. Code § 5800(a).)

Additionally, minimum coverage requirements exist and vary depending on a community’s size. Therefore, a policy that may be appropriate for one community, may not be sufficient to cover another. Failure to obtain the minimum amount could bar coverage of the plan altogether.

When it comes to outside of a board meeting, the issues most likely to jeopardize coverage are any form of communication that bears a resemblance to discrimination of any kind, favoritism, retaliation, defamation, similarly related issues, or makes an omission of a wrongful act by the board.

It is best practice for board members to immediately consult with their general counsel if they believe these issues have influenced board discussions, decisions, policies, or finances. As much as board members or managers may want to express their feelings on these sensitive topics to other members of the community, such as neighbors or friends, it is highly recommended to refrain from doing so.

Board members must make every effort to protect their association and their communications as they have a fiduciary duty to do so. If ever in doubt, board members and mangers should consult with their association’s general counsel for guidance.

Nicole J. Soria, Esq., is an attorney with McKenzie Ryan & Mena, LLP that specializes in construction defect and has been in the industry for over a year.

2022-2023 LEGAL DIRECTORY

ASSESSMENT COLLECTION SERVICES

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

ALTERRA ASSESSMENT RECOVERY

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

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

UNITED TRUSTEE SERVICES

Trusted Partners In Assessment Collections

Lisa E. Chapman

HOA Assessment Collection Services 696 San Ramon Valley Blvd., Ste. 353 Danville, CA 94526 (925) 855-8554 • Fax (925) 855-8559 lisa@unitedtrusteeservices.com www.unitedtrusteeservices.com

ATTORNEYS

ADAMS | STIRLING PLC

Community Association Law

Adrian Adams, Laurie Poole, Nathan McGuire, Wayne Louvier, Jamie Handrick, Melissa Ward LA, OC, IE, SD, SF, SAC, Palm Desert & Carlsbad 2566 Overland Ave., Ste. 730 Los Angeles, CA 90064 (800) 464-2817 • Fax (310) 464-2817 info@adamstirling.com www.adamsstirling.com

BEAUMONT TASHJIAN

General Counsel & Assessment Collection Services

Jeffrey A. Beaumont and Lisa A. Tashjian

Serving California With General Counsel & Collection Services 21650 Oxnard St., Ste. 1620 Woodland Hills, CA 91367 (866) 788-9998 • Fax (818) 884-1087 info@HOAattorneys.com www.hoaattorneys.com

BERDING | WEIL

Construction Defect Litigation

Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust

Walnut Creek, San Diego, Orange County, Sacramento 2175 North California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.berdingweil.com

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

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

FIORE RACOBS & POWERS, A PLC

Community Association Law & 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, P.C. 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 JUDGE LAW FIRM

Providing General Counsel & Collection Services Throughout CA For Over 20 Years

James Judge, Esq. HOA LAW 18650 MacArthur Blvd., 4th Fl., Ste. 450 Irvine, CA 92612 (949) 833-8633 • Fax (949) 833-0154 info@thejudgefirm.com www.thejudgefirm.com

LOEWENTHAL, HILLSHAFER & CARTER, LLP

Construction Defect Litigation

Robert Hillshafer | David Loewenthal Los Angeles, Ventura, and Surrounding Counties 5700 Canoga Avenue, Suite 160 Woodland Hills, CA 91367 (866) 474-5529 • Fax (818) 905-6372 info@lhclawyers.net www.lhclawyers.net

THE NAUMANN LAW FIRM, PC

Construction Defect Litigation Construction Defect Analysis

William Naumann l Elaine Gower

San Diego l Orange County l Los Angeles l

Riverside l San Bernardino 10200 Willow Creek Road, Suite 150 San Diego, CA 92131 (858) 522-0763 • Fax (858) 564-9300 elaine@naumannlegal.com www.naumannlegal.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 LLP

Community Association Law, General Counsel, Assessment Recovery Kelly G. Richardson Matt D. Ober Throughout California (877) 446-2529 matt@roattorneys.com www.roattorneys.com

SWEDELSONGOTTLIEB

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

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

Community Association Attorneys

Fred T. Whitney, Esq. l Dirk E. Petchul, Esq.

From Inception To Build-Out And Beyond 27 Orchard Rd. Lake Forest, CA 92630 (949) 766-4700 • Fax (949) 766-4712 dpetchul@whitneypetchul.com www.whitneypetchul.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 DEFECTS

BERDING | WEIL

Construction Defect Litigation

Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust

Walnut Creek, San Diego, Orange County, Sacramento

2175 North California Blvd., Ste. 500 Walnut Creek, CA 94596 (800) 838-2090 • Fax (925) 820-5592 jjackson@berdingweil.com www.berdingweil.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

FENTON GRANT MAYFIELD KANEDA & LITT, LLP

Construction Defect Litigation & CID Education

Charles R. Fenton, Esq. & Joseph Kaneda, Esq. Servicing California & Nevada Communities for Over 30 Years 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, Esq. & Rachel M. Miller, Esq.

The Authority in California Construction Defect Claims for 40 Years 19 Corporate Plaza Dr. Newport Beach, CA, 92660 (800) 403-3332 • Fax (929) 442-0646 rachel@constructiondefects.com www.constructiondefects.com

ELECTION ADMINISTRATION

THE INSPECTORS OF ELECTION

Providing Superior Election Support for California HOA’s Since 2006 Kurtis Peterson

Completely Independent Full-Service Election Provider

2794 Loker Ave. W., Ste 104 Carlsbad, CA 92010 (888) 211-5332 • Fax (888) 211-5332 kurtis@theinspectorsofelection.com www.theinspectorsofelection.com

LIBERTY HOA ELECTION SERVICES, LLC Election Administration

Deanna M. Libert

We Make Association Voting Management Easy 1900 Camden Avenue San Jose, CA 95124 (408) 482-9659 deanna@hoaelection.com www.hoaelection.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

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

VENDOR COMPLIANCE

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