July 2009
A Journal for California Community Association Leaders
echo-ca.org
Roofing is Green and its future is getting greener
ALSO INSIDE THIS ISSUE:
• Understanding Judicial Deference • Board’s Campaign Promises • Words Can Spark a Lawsuit
Change Service Requested ECHO 1602 The Alameda STE 101 San Jose, CA 95126
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Contents Board Decisions—page 14 The ECHO Journal is published monthly by the Executive Council of Homeowners. The views of authors expressed in the articles herein do not necessarily reflect the views of ECHO. We assume no responsibility for the statements and opinions advanced by the contributors to the magazine. It is released with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. If legal advice or other expert assistance is required, the services of a competent person should be sought.
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Roofing Technologies for the Green Era Roofing products have taken on an important role as the need to improve environmental conditions increases. Judicious selection of products by associations can provide benefits to the environment. This article discusses the various types of green roofing in current use.
Acceptance of advertising does not constitute any endorsement or recommendation, expressed or implied, of the advertiser or any goods or services offered. We reserve the right to reject any advertising copy. Copyright 2009 Executive Council of Homeowners, Inc. All rights reserved. Reproduction, except by written permission of ECHO, is prohibited. The ECHO membership list is never released to any outside individual or organization.
Executive Council of Homeowners, Inc.
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Understanding Board Decisions and Judicial Deference California law offers a limited protection to boards: the rule of judicial deference. This article shows why two California apellate cases arrived at different results concerning judicial deference to a board’s conclusions, and what lessons boards should take from both cases.
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Raise My Maintenance Fees, Please! Homeowners campaign for election to their board of directors all too often with the promise of never increasing fees or imposing special assessments. Unlike the feds, community associations cannot print more money when the coffers run dry—as they surely will if revenues aren’t increased.
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Office Hours: Monday–Friday 9:00 a.m. to 5:00 p.m.
Board of Directors and Officers President David Hughes Vice President Karl Lofthouse Treasurer David Levy Secretary Dorothy Kopczynski
Words Can Spark a Lawsuit By arming you with information about which kinds of communications are defamatory and which are not, this article may help you and your association avoid some common pitfalls.
Departments 29 Directory Updates 32 News from ECHO 33 Legislation at a Glimpse
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1602 The Alameda, Suite 101 San Jose, CA 95126 408-297-3246 Fax: 408-297-3517 www.echo-ca.org info@echo-ca.org
34 ECHO Bookstore 36 Events Calendar 38 ECHO Volunteers 38 About ECHO
Directors Paul Atkins John Garvic Diane Rossi Richard Tippett Steven Weil
Jerry L. Bowles Robert Rosenberg Kurtis Shenefiel Wanden Treanor
Executive Director Oliver Burford Communications Coordinator Tyler Coffin Legislative Consultant Government Strategies, Inc. Design and Production George O’Hanlon
41 ECHO Marketplace 41 Advertiser Index
On the Cover Green Roofing—page 6 4
July 2009 | ECHO Journal
ECHO Mission Statement The mission of ECHO is to advance the concept, interests and needs of homeowner associations through education and related services to board members, homeowner members, government officials and the professionals in the industry.
ECHO Volunteer of the Year for 2009
Tyler
Berding T
yler Berding has been selected as the ECHO Volunteer of Year for 2009 by the ECHO board of directors. This award recognizes the outstanding service and support he has contributed in advancing ECHO’s objectives and influence.
Tyler Berding joined the ECHO board of directors in 1990 and served as a member the next ten years. For five years he served as president of the board, and he also chaired the ECHO Legislative Committee, which he was instrumental in founding, for nine years. He has contributed more articles
for publication in the ECHO Journal than any other member. Tyler has participated for many years in the development of legislation affecting both commercial and residential real estate issues. He has frequently testified before legislative committees and has served as a member of the California Department of Real Estate’s Task Force on Common Interest Developments. He is a member of, and frequently speaks before, such community association organizations as ECHO, CAI and CACM. Berding has represented the commercial and residential real
estate industry for more than 35 years in litigation over product and construction failures. His special expertise has been in water intrusion, soil failures, failed building systems, and building-product failures. He specializes in representing residential building owners and commercial investors. In 1988, he founded the law firm of Berding | Weil, along with his partner, Steven Weil. He holds a J.D. degree from the University of California at Davis as well as a B.A. degree in Political Science, an M.A. degree in Government Administration and a Ph.D. in Government.
ECHO Journal | July 2009
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July 2009 | ECHO Journal
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ROOFING PRODUCTS HAVE TAKEN
on an important role as the consciousness for the need to improve our environmental conditions increases. These products can help reduce the carbon footprint, reduce dwelling energy requirements, provide a platform for sustainable energy, improve air quality and reduce storm water runoff.
By Brian Seifert
Roofing Technologies for the Green Era To better understand these issues it is important to know some general “green” terminology, what cool roofs are, what is the relationship between solar energy and roofing, what a green roof is and what rebates are available to help offset the costs of environmentally friendly roof systems. The status of roofing is “Green” and the future will see it getting greener.
Green Terminology Some base line “Green” terminology will help provide both background information and clarity for this dissertation on current roofing technology. Carbon Footprint—The amount of CO2 and other gasses we create through our normal living
ECHO Journal | July 2009
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454 So. Airport Blvd. South San Francisco CA 94080
choices that have a negative effect on the atmosphere. CFCs—Chlorofluorocarbons are known as all green house gasses that negatively affect the atmosphere. Alternative Fuels—Fuels generated from renewable resources such as wind and solar. Sustainability—The ability to meet the needs of today without jeopardizing the needs of tomorrow. Solar Reflectivity in Roof Products—A product’s ability to reflect solar energy and ultimately reduce the energy requirements needed to cool a dwelling, given in percent. Thermal Emissivity in Roof Products— The ability of a roof product to emit or radiate back to the atmosphere any absorbed energy, thus reducing the energy requirements to cool a dwelling, given in percent. Aged Reflectivity—The reflectivity of a roof product after three years from installation, given as a percentage. SRI—The Solar Reflective Index is a number used to measure a roof’s operating temperature scaled from 1 to 100 with 100 being the best. CRRC—The Cool Roof Rating Council is an independent nonprofit group that measures solar reflectance and thermal emissivity in roof products. LEED—Leadership in Energy and Environmental Design is a voluntary program created by the U.S. Green Building Council to determine a building’s use sustainability and carbon footprint. Building systems are given LEED point credits. Energy Star—Energy Star is a joint Federal Government program between the Energy Department and the Environmental Protection Agency to establish minimums for solar reflectance and thermal emissivity, as well as other energy related items. Title 24 California Energy Code—This California code establishes building energy efficiency standards for residential and nonresidential buildings.
Different green roofing technologies on one roof.
In 2006, Title 24 established energy code requirements for low-sloped (less than or 8
July 2009 | ECHO Journal
equal to 2:12) roofs on commercial buildings and high-rise residential (greater or equal to four stories). The term “Cool Roof” although already in use became a requirement at this time. A cool roof for low-sloped applications is defined as one with initial reflectance of 70 percent, an emissivity of 75 percent, an aged reflectance of 55 percent, and an SRI of 64. Cool roof products must be tested by the CRRC and meet the requirements of Title 24. The most commonly used low-sloped cool roofs are: 1) PVC (polyvinyl chloride) and TPO (thermoplastic olefin) single ply membranes, 2) fluid applied membranes, and 3) built-up asphalt cool roofs. All of these systems are readily available in the market place and will vary in cost for material and installation.
California Building Climate Zones
The single ply systems are typically white thermoplastic reinforced membranes. They are most commonly attached to the roof deck with plates and screws at the seam edge and the overlapping seam is heat welded providing a cohesive attachment. There are occasions where the membrane is fully adhered to the substrate. The membrane can be applied over an existing roof or applied over a fire barrier after the old roof is removed. The single plies have gained in popularity as a result of the cool roof requirements and the recent increased cost of asphalt products.
California building climate zones developed by the California Energy Commission dictate Title 24 requirements for roofing products, particularly the new steep-slope products.
2008 California Energy Code Title 24 Cool Reflective Roof Requirements
Roof Slope
Min. 3-Year Product Density Aged Solar (per sq. ft.) Reflectance
Min. Thermal Emittance
Min. Solar Reflectance (SRI)
Low Slope (≤2:12)
n/a
0.55
0.75
64
<5 lb.
0.20
0.75
16
≥5 lb.
0.15
0.75
10
Single Ply Roof System Fluid applied membranes are typically acrylic or elastomeric coatings that are installed over an existing roof, typically a cap sheet built-up roof system. They consist of a primer, a base coat and a white top coat, which accommodate the cool roof requirements. A polyester reinforced fabric can be embedded into the system to provide greater tensile strength. The coating systems can be a cost effective alternative for extending the life of a current roof system and fulfill the cool roof requirements.
Occupany
Non-Residential and Residential Steep Slope (>2:12)
Source: Title 24, Part 6, of the California Code of Regulations: California’s Energy Efficiency Standards for Residential and Non-Residential Buildings as of 6/30/2008. Note: Requirements may vary by state climate zone, percentage of existing roof being replaced, and additional specialized occupancy classifications ECHO Journal | July 2009
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Fluid Applied Roof System Asphalt built up roofing (BUR) manufacturers have created a cap sheet product that qualifies as a cool roof. The granulated cap sheet is coated with a white roof coating at the plant, prior to shipping. Once installed, the asphalt roof is white and if CRRC tested and Title 24 approved qualifies as a cool roof. These BUR systems are still popular today in spite of the increase in asphalt prices; however, the single plies and fluid applied systems are gaining market share.
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Built-up Cool Roof Beginning August 1, 2009, Title 24 requirements apply for all low-sloped roofs, both non-residential and residential. Additionally, new requirements for steep-sloped (greater than 2:12) roofing will be added. For roofing material weighing less than five pounds per square foot (typically composition shingles), Title 24 requires a 75 percent emissivity, an aged reflectance of 20 percent and an SRI of 16. For product weighing greater than or equal to five pounds per square foot (typically tile), Title 24 requires a 75 percent emissivity, an aged reflectance of 15 percent with an SRI of 10. Many of the composition shingle manufacturers have created new products that meet the new Title 24 requirements, without limiting their colors only to white. They have been able to coat the granules with a reflective product prior to adding the color coat, thus achieving the cool roof requirements. Additionally, some tile manufacturers have created similar technology to allow their
products to qualify as well. These products still must pass the testing of the CRRC and achieve the minimum standards set by the energy code.
Comparison of Standard and Cool Roof Shingles The California Energy Commission has broken our state into climate zones. These zones will dictate Title 24 requirements for roofing products, particularly the new steepslope products. The Bay Area and most of the central coast are in zone three and are exempt from the new Title 24 codes as they relate to steep slope roofing. However, tax credits as well as other rebates may be available to owners if they choose to install one of these steep slope cool roofs. Solar panels have been in use for many, many years. Their early use was primarily to heat water either for swimming pools or domestic use as a way of reducing energy consumption. Today, the popularity of photovoltaic solar panels to generate energy is rapidly increasing. A photovoltaic cell is defined as the ability to generate current or voltage from radiant energy. Most cells capture about 10 to 15 percent of the sun’s energy. New technology states up to 30 percent can be captured. With today’s technology and costs, it takes about ten years to return the installation investment.
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Solar Panel Application over Composition Fiberglass Shingles Photovoltaic cells and roofing are often mentioned concurrently because it is common to place panels on the roof. Additionally, some tile and single ply membrane man-
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ECHO Journal | July 2009
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ufacturers have incorporated photovoltaic cells into their roofing products. When considering solar panel placement on a roof, it is imperative that the mount design is compatible with the particular type of roof you have, is engineered properly to withstand the weight without damaging the structure or the roof and takes into consideration both the necessary waterproofing and ease of re-roof.
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Photovoltaic Tiles “Green” or garden roofs have been popular in Europe for some time. More recently green roofs have become popular in North America. A green roof consists of a waterproof membrane, a root barrier, drainage mat, the growing medium, irrigation system and the vegetation. The benefits of these systems include year round energy savings as the vegetation acts as a thermal blanket and minimizes heating and cooling needs, drastically reduces water run off (up to 70 percent), reduces the ambient air temperature, helps reduce carbon dioxide pollution through the photosynthetic process of the vegetation, extends the life of the roof membrane by protecting the system from damaging UV radiation, and provides for up to 14 LEED credit points.
This 300+ page reference manual contains the presentation outlines, text and handouts from the seminars at the 2009 ECHO Annual Seminar held on July 13. The book also contains vital information for association directors, such as assessment collection policies, internal dispute policies and forms, and much more. Keep This Book At Hand For Ready Reference! Non-Member Price $45
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“Green” or Garden Roof It is popular to combine many of these energy saving roof systems to maximize sustainability and reduce future costs such as installing photovoltaic panels on a green roof or incorporating photovoltaic tiles on a cool tile roof. Most of these systems, whether stand alone or combined, may qualify for some form of rebate.
There are many rebate and tax credit programs available for energy saving roof systems. There are many rebate and tax credit programs available for energy saving roof systems. For instance, although we are in a statedesignated climate zone that does not require cool residential roofs, federal tax credits are still available that may or may not make it cost effective to install. Utility companies such as PG&E provide rebates for cool roofs as well as other roof related items such as insulation and mechanical and solar equipment. There are state and local rebate programs for photovoltaic energy that are too numerous for this article. Solicit your construction experts to help in compiling the programs available for your needs. The following list of websites provide information resources for tax credits and rebates related to saving energy: roofknowledge.org dsireusa.org energy.ca.gov coolroofs.org pge.com
Brian Seifert heads the Roofing Division at Draeger. He is the chair and long-time member of the ECHO Maintenance Resource Panel. He is also a frequent contributor to the ECHO Journal and speaker at ECHO seminars. ECHO Journal | July 2009
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TWO RECENT APPELLATE CASES
illustrate when a court will defer to the “business judgment” of a board of directors.
California law offers a limited protection to homeowner boards of directors: the rule of judicial deference. Arising from the 1999 California Supreme Court case of Lamden v. La Jolla Shores Clubdominium HOA, this rule states that when a board acts in good faith and in the best interests of its members in making discretionary decisions concerning its obligations, a court will defer to that judgment and not secondguess the board’s decision-making. The Fourth District Court of Appeal confronted the application of judicial deference in two 2008 decisions: E. Miles Harvey v. The Landing Homeowners Association (the Harvey case) and Ekstrom, et al. v. Marquesa at Monarch Beach
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July 2009 | ECHO Journal
Homeowners Association. In the first case, the Court deferred to the board’s decision-making. In the second, it did not. The purpose of this article is to show why these cases arrive at different results concerning judicial deference to a board’s conclusions, and what lessons a board should take from both. The Origin of “Judicial Deference” The doctrine of “judicial deference” as applied to the board of directors of a homeowners association originates in a legal concept known as the “business judgment rule.” This rule holds that management decisions made in good faith in what the corporation’s directors believe to be the corpora-
By Matt Malone, Esq. and Andrew Baugh, Esq.
Understanding Board Decisions and Judicial Deference tion’s best interest will not be second-guessed by the court. In short, the rule prohibits the court from playing the proverbial Monday-morning quarterback and interposing its own judgment for that of the directors. In the Lamden case, the California Supreme Court confronted the question of whether this rule should apply to the board of directors of a homeowner association in the same way it did to directors of other corporations.1 The Lamden plaintiff was an owner who had sued her association after its board elected to spot treat for termites instead of tenting and fumigating the entire building. The question before the Court was whether the decision to spot treat, given how expensive it would be to fumigate the building,
was one that was within the board’s discretion and subject to deference from the Court. The Court held deference was appropriate and applied the business judgment rule to community association boards. The Court held it should “defer to the board’s authority and presumed expertise” provided the board’s action is made in good faith, with regard for its members’ best interests, and within the scope of its authority under CC&Rs in deciding how best to maintain common areas. With this, the business judgment rule for corporations became a rule 1 Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249.
ECHO Journal | July 2009
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of judicial deference to the decisions of association boards. Now, careful readers noted the phrase in italics and asked: What happens if a court thinks the board acted outside its authority and how can a board make sure it does not exceed that authority? That is precisely the question the Fourth District Court analyzed in two 2008 cases, Harvey and Ekstrom, applying the same principles with two strikingly different results. Judicial Deference Granted: The Harvey Case2 The Harvey case concerned the Landing Homeowners Association, which managed a four-story, 92-unit condominium complex located in Coronado, California. At this complex, owners on the fourth floor had empty attic space above their units. This attic space was technically common area maintained by the association. However, unbeknownst to the board, many of the fourth floor owners had used this space for storage, and had done so for years. The board discovered this use after a homeowner’s complaint in 2002 prompted an inspection. At the time, the board president was Mr. Harvey, the eventual plaintiff. Harvey, along with two other members of the Landing Architectural Review Committee (ARC), issued a report containing the findings of the inspection. That report also concluded that the use of the fourth floor attic space complied with the CC&Rs, which allowed an owner to use adjacent common area if that use was nominal and did not interfere with other owners’ use and enjoyment. Since the attics could not be used by any owner other than the fourth-floor owner whose unit sat underneath it, Harvey and the ARC members concluded such use was permissible. A single exception was an owner who had actually finished the attic and was using it as living space. The city of Coronado claimed that was a violation of the Building Code. However, the city also confirmed that the code did not prohibit use of the space for storage. Harvey then consulted counsel, who opined that the use of the attic area for storage was impermissible because it was not nominal use and that the association lacked authority to grant the encroaching owners the right to continue to use the space. Based on this guidance, Harvey requested the 2 E. Miles Harvey v. The Landing Homeowners Association et al., (2008) 162 Cal.App.4th 809.
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board issue notices of violation under the CC&Rs to the fourth floor owners using the attic space. When the board refused, Harvey immediately resigned as president, though he remained on the board. After further investigation and discussions with building inspectors from the City of Coronado, the board eventually issued notices of violation to all owners using the attic space and then entered into negotiations with these owners to effectuate a way for them to use the space. After much back and forth between the board and these owners, the board eventually passed a resolution granting exclusive use to these owners of the attic space above their respective units. Harvey filed suit, claiming this transfer was improper amongst other causes of action. The association moved for summary judgment and the trial court granted the motion, finding that the language of the CC&Rs permitted the transfer of exclusive use of these spaces and deferring to the board’s expertise as to that use. On appeal, the Fourth District affirmed the grant of summary judgment in the association’s favor. Relying on the doctrine of judi-
cial deference from the Lamden case, the Court held that the language of the CC&Rs permitted the board to allow the fourth floor owners to use the attic space. The board’s determination to permit that use was within its discretion and the court deferred to its expertise concerning use of the common area. The board investigated the issue, met with the city to ensure use complied with building codes, and confirmed that use would not increase insurance premiums for the association. These actions, in the Court’s view, constituted reasonable investigation and good faith efforts by the board with regard to the community’s best interests. Because it acted in good faith, and because the CC&Rs gave it the authority to do what it did, the board’s actions were subject to the rule of judicial deference and the Court would not interpose its judgment for the board’s. Thus, Harvey teaches that a board must act within its authority under the CC&Rs in order to benefit from judicial deference. The Harvey CC&Rs expressly gave the board power to transfer the common area attic space. However, when a board’s own actions
go beyond its power under the CC&Rs, it will not be protected by “judicial deference.” That was the hard, and ultimately expensive, lesson taught by the same Court of Appeal in the Ekstrom case. Judicial Deference Denied: The Ekstrom Case3 The setting of the Ekstrom case was Marquesa at Monarch Beach, a luxury development in Dana Point, California. The plaintiffs were a collection of homeowners at Marquesa who had purchased their properties in the late 90s and early 2000s. They had paid a premium for their units, which had desirable ocean and golf course views. Problems arose when palm trees planted throughout the property grew far above the height of the homes on their lots, blocking the views of other owners. In 2002, plaintiffs brought their complaints to their board’s attention. The board, however, felt that the trees added to the aesthetic value of the development and that this outweighed the 3 Ekstrom, et al. v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111. ECHO Journal | July 2009
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owners’ view impairment concerns. This divided the owners into, in the words of the Court of Appeal, “two contentious factions:” those who opposed any effort to cut the trees and those who wanted them cut or removed entirely. Two CC&R provisions were primarily at issue in this dispute: One section prohibited any trees from exceeding the height of the house on the lot in which they were planted, but permitted the Architectural Review Committee to exempt a tree from trimming if the ARC determined it did not obstruct the views of other lots. Another section confirmed that certain improvements on neighboring properties might obstruct views from the purchased lot and that a purchaser consented to the obstructions by making the purchase.
When an owner brings an action against a board that has failed to be fair and consistent in enforcing its CC&Rs, judicial deference is unlikely to shield the board from liability. As is always advisable, the board sought the guidance of an attorney for a legal opinion as to whether it had to cut or remove the palm trees. More ill-advised, however, was the board’s decision to get their opinion from an attorney who was “inexperienced in representing homeowners’ associations” and had a “close personal relationship” with the longtime board president. This was especially disconcerting given that the president had 20 palm trees on his property, several of which were obstructing plaintiffs’ view. Perhaps unsurprisingly, the attorney opined: 1) that Section 7.10 prevented any homeowner from asserting a right to a view; and 2) the ARC’s authority under Section 7.18 of the CC&Rs included the ability to exempt palm trees. In 18
July 2009 | ECHO Journal
2003, the board (after election of a new member) sought a second opinion from a different attorney, whose conclusion was exactly the opposite: the board had no authority to categorically exempt palm trees under either section. The board next attempted to amend the CC&Rs via a membership vote to exempt palm trees from Section 7.18. When that failed, and the board did not cut down the trees nor consent to mediation of the dispute, plaintiffs filed their complaint, seeking a declaration that the association had to enforce Section 7.18 and further seeking an injunction directing the board to identify and rectify those trees offensive to plaintiffs’ views. While the case was pending, the board adopted a new set of rules and regulations to restrict the definition of “view” under Section 7.18 in a way to permit the palm trees. The redefined “view” included only the area in the rear of the property, six feet off the ground, and excluded anything outside the lot lines of the property. This would have prohibited most of plaintiffs’ claims, either because of the lot shapes or because the views were from a property’s second story, well above the “six feet off the ground” that defined a view under the rules. The ensuing court dispute did not favor the board. The court found for plaintiffs and ordered the association to enforce Section 7.18. It held that the express purpose of Section 7.18 was to preserve ocean and golf course views and that the board was powerless to exempt a whole class of trees from the section. It expressly rejected the new definition of “view” that the board promulgated during the litigation. Finally, the Court concluded that Section 7.18 and Section 7.10 did not conflict because the consent to view impairment of Section 7.10 did not apply to trees. And perhaps the most important part: it awarded plaintiffs their litigation costs and attorneys’ fees. On appeal, the association argued that, under the “judicial deference” rule of Lamden, the trial court should have deferred to the board’s expertise and not secondguessed it. The board argued that it operated within its authority in interpreting and enforcing its on CC&Rs, and that the trial court should not have disturbed that judgment. The Court of Appeal, however, soundly rejected that argument. First, it held the association had waived the argument by not
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properly raising it. Nonetheless, the Court What Lessons Should a Board Take From Harvey and Ekstrom? went on to rule, the claim of judicial deferThe most potent lesson of both Harvey ence failed on its merits. The court reinand Ekstrom is that a board cannot seek “judiforced that the judicial deference rule was cial deference” for decisions that are outside appropriate where the board’s discretionary the scope of its authority under the governdecision-making was at issue. Lamden ing documents. If the governing documents involved such discretion because the board’s Feeling ignored by board your discretionary property manager? give the authority, their decision to spot treat for termites rather than decisions will typically be afforded deference. fumigate an entire building did not expressly Need to get more things done? On the other hand, where a board acts in a conflict with the CC&Rs and, ultimately, was manner inconsistent those service? governing a choice properly left to the boardRecent as it exermanagement changeswith = Poor documents, it will not. The cases also present cised its management responsibilities. several other important, related Want a more effective manager? In contrast, where a board’s decision runs considerations. afoul of the express language of the CC&Rs, a board should not assume a court is Time for new First, management? a board receives no protection from Lamden’s going to defer to its decisions simply because rule of judicial deference. The Ekstrom court those decisions concern common area mainfound that the CC&Rs clearly protectedx the tenance oronly other duties of the board and the HOA management is our business rights of owners not to have their views x We’re experienced, association. A board must review its CC&Rs knowledgeable & responsive obstructed by palm trees. Nothing in the thoroughly to determine what it can and canx Make this the year you start solving your HOA’s problems CC&Rs gave the board the authority to x Contact us not todaydo. for aA proposal or like to schedule an interviewmust comboard, its members, exempt an entire class of trees from enforceply with the CC&Rs and cannot act outside ment. Finally, the Ekstrom court distinguished the scope of its authority. the Harvey ruling on precisely this point: In Second, a court will grant judicial deferHarvey, theWe’re board acted in a manner consisence onlyQuality where a board in good faith, Here to Improve Your of acts Life! tent with its authority under the CC&Rs; with reasonable investigation and in the best here, the Court held, the CC&Rs gave the interests of the community as a whole. Thus, Serving Santa Clara info@thehoamanager.com board no discretion to act asCounty it did. theEmail: board should seek to be consistent in its
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20 July(408) 2009 | ECHO Journal Phone: 244-0909
On the web: www.thehoamanager.com
handling of similar issues, and it cannot act in a manner that favors certain owners—particularly board members—over others. The Harvey Court found the board to be consistent in its dealings with this issue because each fourth floor owner was able to use the same amount of common area attic space for storage. This contributed to its finding that the board acted in good faith, justifying judicial deference. In contrast, the Ekstrom board inconsistently applied its tree-trimming rules, cutting down some trees while letting only the palm trees remain. Worse, this action worked favorably to the board president, who was one of the owners of the offending trees. A board must strive to apply its rules equally and fairly in order to benefit from judicial deference. Third, in making its decisions, the board should seek advice of counsel that is independent and has experience representing homeowner associations. The board president in Ekstrom had a personal relationship with the first counsel that appears to have affected that attorney’s advice; moreover, that attorney lacked experience representing homeowner associations. Boards must avoid this pitfall by seeking out independent, experienced counsel with a proven track record of successful representation of associations, their boards and their membership. Of course, attorneys may differ on whether certain actions go beyond the board’s authority. In that case, the board must redouble its efforts to act in good faith in the interests of the whole community. The fourth and final lesson is both a combination and a consequence of the other three. When an owner brings an action against a board that has failed to be fair and consistent in enforcing its CC&Rs, judicial deference is unlikely to shield the board from liability. And if that happens, the board may have to pay the owner’s costs and attorneys’ fees. A board can avoid that liability, and possibly collect its own fees back, when it acts as the Harvey board did—fairly and without favoritism to certain owners or, worse, certain board members.
Matt Malone and Andrew Baugh are attorneys in the litigation department at Berding|Weil in Alamo, California. Both represent individual homeowners, commercial real estate owners and common interest developments in complex construction defect actions.
By Carole Robinson
A Difficult Cult ssociations offer senior adults an opportunity to enjoy living among like-minded friends. There is a pleasant, “We are in this together” feeling about being surrounded by neighbors within walking and talking distance. Communal living arrangements are ideal and long lasting… unless their social ambience is threatened by the formation of a cult. What is meant by a cult? In most cases it is a small group of residents who for various reasons assume an inclusively exclusive attitude and operate as a clique. Senior associations are likely targets for the development of these unhealthy political divisions. It starts with a small circle of friends who take over and run things. They dominate the Board of Directors. They control anything they can get their hands on, like the social calendar, the chairmanship of clubs, the decisions on how much and on what to spend association money. Before the general membership realizes what is happening, they set destructive, personal boundaries between those who are “in” and those who are “out.” Anyone who has experienced the workings of a cult will know exactly how disruptive that can be. It is the same game that young children play when they say, “I will be your friend if you will not be a friend with them.” Or “We’re best friends so let’s not hang around with anyone else.” It is the old “us” against “them” syndrome. A cult forms slowly and usually centers around one person whose lack of self-satisfaction needs to be bolstered by others. That individual attracts a few sympathetic residents who form a closely knit group. They become
A
defensive and view everyone else as against them. The need to be “top dog in the pack” drives a social wedge through the heart of the association. If this did not impact the entire membership, it would not be so bad; but it does. Before long you will find that some neighbors are no longer on friendly speaking terms with each other. Every proposal brought before the board becomes an opening for that inclusive exclusiveness to pit one side against another. Sometimes the cult’s animosity will focus on a particularly active resident. A rumor is circulated that he or she wants to run everything, to have every decision going just one way. He or she is trying to get a tight control of the purse strings, to be “it.” These meanspirited accusations are how the cult views outsiders, when, in fact, the desire to control actually originates and identifies within the exclusive group itself. Sometimes people who retire after having held responsible positions in the business world for long years have a tendency to turn into cult leaders when they become part of an association. Suddenly their absolute authority is no longer recognized. They feel threatened by a lack of appreciation, which is really entirely within their personal psyche, although the havoc it causes in a social setting is widespread. For this reason, understanding where the members of a cult are coming from helps you dissipate their alien affect on what should be a friendly community feeling. So, what can residents do if they already have a small clique operating within their membership? There is no easy answer. There
are legal ramifications. The cult leader may instigate a law suit if you do not approach the problem very carefully and protect yourself and your association. To seek impartial outside advice is very wise. Community churches offer thoughtful support as well as spiritual counsel. These are invaluable in solving this type of conflict without destroying the friendly atmosphere of the association itself. All members might remember that “Love your neighbor” is still a good starter for communal living. Be as friendly as possible with everyone, including each member of the cult. Be patient. Try to appeal to their reason for choosing to live in a community association rather than off by themselves. Mobile Home Associations offers the best of both worlds. You have your own private space when you need it but you also have someone to rub elbows with when you have time on your hands. It is fun to have a lot of close neighbors, especially when you know very well that if something adverse happens you can count on them to come over with an open heart, a pot of soup, or a bouquet of freshly picked flowers. If trying to be genuinely friendly doesn’t work, most cities have an office for Senior Citizen Legal Services available for consultation. In any case, remember to always “Walk softly and carry a big stick.”
Carol Robinson is a resident in a homeowner association that is a member of ECHO. ECHO Journal | July 2009
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By Marjorie Jean Meyer, PCAM
Raise My Maintenance Fees, Please! Unlike our federal government, however, community associations cannot print more money when the coffers run dry, as they surely will if revenues arenâ&#x20AC;&#x2122;t increased to meet rising operating expenses. When board members boast about keeping maintenance fees at the same rate for several years (or decades!), itâ&#x20AC;&#x2122;s definitely not time to praise them for their financial acumen. Consider this: even at an average inflation rate of 3 percent per year (remem-
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July 2009 | ECHO Journal
ber inflation was above 20 percent back in the 1980s), your association has lost tremendous buying power while costs of repairs and services have skyrocketed. Even if previous and current boards had increased maintenance fees a minimum of the Consumer Price Index (CPI) each year, the association would still be in serious financial straits because budget line items such as utilities and insurance, and every building component affected by
H
HOMEOWNERS CAMPAIGN FOR election
or re-election to their community associationâ&#x20AC;&#x2122;s board of directors all too often with the promise of never increasing maintenance fees or imposing a special assessment on his or her constituents.
the price of oil, has far exceeded the CPI. To comply with their fiduciary obligations, community association boards should retain the consulting services of a competent CPA to help the board draft a long-term financial plan. The financial plan should include hiring a well-qualified reserve analyst to conduct a replacement reserve analysis to determine the current condition of the physical components of the common and limited common elements, when those
elements will need to be replaced, how much it will cost to replace them, and how much the association should be setting aside monthly for the eventual replacement of those components. Only with the big picture understanding of the current and future financial condition of your community can board members make reasonable, informed decisions regarding the appropriate level of maintenance fees. There are some innovative sources of revenue that
ECHO Journal | July 2009
23
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July 2009 | ECHO Journal
boards might consider when trying to balance the budget without increasing maintenance fees or imposing use fees. Here are just a few: â&#x20AC;˘ If your building is a high rise, contact cellular telephone and satellite dish companies to offer the roof as a site for their equipment. Not only could you receive a hefty monthly rental fee, but you may be able to persuade the company to assume maintenance of the roof. â&#x20AC;˘ Ask local retailers to underwrite social and administrative functions such as National Night Out, annual meetings and summer barbecues around the pool. If theyâ&#x20AC;&#x2122;ll pay for the event, their name will be prominently displayed during the function and in the community newsletter. â&#x20AC;˘ Accept advertising in your associationâ&#x20AC;&#x2122;s newsletter or website (but be sure to craft an advertising policy with the help of the associationâ&#x20AC;&#x2122;s attorney). â&#x20AC;˘ Conduct an annual community-wide garage sale from which the association derives a percentage of the sales. This is a great way to discourage individual garage sales during they year while still offering residents the opportunity to get rid of unused items â&#x20AC;&#x201C; or buy some from their neighbors. What if your association needs to increase assessments more than the 20 percent allowed by the Davis-Stirling Act and thus must seek member approval of the budget or a special assessment? Then itâ&#x20AC;&#x2122;s time for board members to do their homework. Justify every single line item in the proposed budget with documentation that substantiates the expense such as notices of rate increases from utility companies, insurance companies and the lawn maintenance contractor. Retain the services of a reserve analyst to conduct or update the reserve study. When all the information is compiled, prepare a packet for every single homeowner containing the proposed budget, budget narrative and supporting material such as bids and increase notices. Include the reserve study with its 20-year cash flow projection and a discussion on the physical condition of the community and needed repairs. Yes, the packets can be an expensive undertaking, but informed homeowners will make wise decisions. In the cover letter accompanying the packet, explain to the homeowners that the association is experiencing financial challenges requiring additional income to offset rising
costs. Include an invitation to attend one or more informal town hall meetings at which the board will review the material provided to each owner and answer any questions the owners might have. The cover letter should also serve as the formal notice of a special meeting to be held following the last scheduled town hall meeting, at which the owners will vote for the increase in maintenance fees. The special meeting is obviously a critical component to successfully persuading members to approve an increase in their maintenance fees. Set the right tone by holding it in a business-like setting close to the community and providing nonalcoholic beverages and snacks. Ensure that the required number of owners is present. The board members should rehearse for the meeting so that it is conducted in a professional, confident manner, including in the preparation the association’s manager, legal counsel, CPA and reserve specialist who may each offer a brief presentation to the owners addressing their respective expertise. The board may consider asking a Realtor who represents owners in your community to discuss the impact on property values if the common elements are not adequately maintained because of a shortage of funds. “No new maintenance fees!” A former president campaigned on a similar promise and had to admit the error of his good intentions. Board members have a fiduciary duty to ensure that their community is well-maintained and the governing documents upheld. Understand the obligations of the association and your role as a board member. Base your actions and decisions, including the amount of next year’s maintenance fee, on wellresearched and documented facts. Understand that while homeowners may grumble over an increase in their maintenance fees, they’ll be more unhappy with you if their property values plummet because the association didn’t have funds to repair their roof leak or maintain the common elements.
Detailed on-site inspections, inventories and asset descriptions • Spreadsheet report format now available on request 30-year threshold and components models • 16 years of reserve study experience • Call today for a free proposal
Don’t make promises as a board candidate or board member that will later haunt you!
Marjorie Jean Meyer is a vice president and National Director of Education and Certification for Associa, a nationwide management company with headquarters in Houston, Texas. ECHO Journal | July 2009
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By Matt D. Ober, Esq., and Melanie J. Bingham, Esq.
Sticks and Stones May Break Your Bones But Words Can Spark a Lawsuit magine that you are a member of the Board of Directors of Yellow Brick Road HOA. You suspect that your neighbor, Dishonest Darryl, is remodeling his unit with money he received from the association to repair water damage caused by a leak in a common area pipe. You believe Darryl exaggerated his claim and took advantage of the association. Elections are coming up and you think that Dishonest Darryl is going to run for the board. You decide to put your suspicions in the association newsletter and post it on the association’s web site to warn your fellow homeowners. What happens if you are wrong and Darryl sues you? Can any of these actions subject you to liability for defamation? The answer is a resounding “Yes”!
I
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July 2009 | ECHO Journal
Although there are a number of instances, such as the one above, in which the board of directors of a homeowners association or even a concerned homeowner may have an interest in relaying important but potentially damaging information about a homeowner to other association members, the question is, how much can you say? To whom? How do you communicate such information? The importance of these questions is magnified by the fact that, increasingly, homeowner associations are using the Internet to conduct association business. The Internet has increased the speed that information travels and has allowed for instant mass distribution of information. While use of the Internet does not change what does or does
not constitute defamation, it does increase the risk for rapid dissemination of potentially harmful information. For example, the typical board meeting is not (and should not be) recorded, and the minutes of those meetings merely provide a summary of what occurred. Conversely, if the board members communicate among themselves or with association members by e-mail, there is a verbatim record of everything that is said and once the information is disseminated in cyberspace, there is no way to retrieve it. The very factors that make the web an attractive means to communicate—namely, the speed, the ease of distribution of information, and the fact that it creates a permanent record—also increase the risk of
exposure to liability for defamation. By arming you with information about which kinds of communications are defamatory and which are not, this article may help you and your association avoid some common pitfalls both on the Internet and otherwise. What Is Defamation? Defamation is defined as the act of injuring someoneâ&#x20AC;&#x2122;s reputation by communicating false information about that person to a third person or persons. The communication or publication to a third person can be oral, written or in any other form of fixed expression, such as a cartoon or caricature. Defamation can take one of two forms: libel or slander. This article will focus on libel, which relates to written communications such as e-mail, rather than slander,
which relates solely to oral communications. Libel is defined as a false publication (including writing, printing, picture, effigy or other fixed expression to the eye) that is not protected by law and either: (1) exposes a person to hatred, contempt, ridicule, censure or reproach; (2) causes him to be shunned or avoided; or (3) has a tendency to injury him in his reputation. Certain communications are defamatory per se (on their face) as applied to anyone; whereas others require additional facts to show why they may be defamatory to a particular person. For instance, calling someone a fascist is clearly defamatory while calling someone an animal lover is not, unless you are saying it to imply falsely that a board member
is not enforcing the pet restriction in the CC&Rs because he is an animal lover. If a communication is defamatory, the defamed party does not have to establish that he suffered actual damages but can recover for the presumed injury to his reputation. If the communication is not defamatory, the defamed party has to show that he suffered actual damage because of the defamatory communication. Following our hypothetical, if Dishonest Darryl was actually entitled to the money he received from the association, the board member may be subject to a claim for libel because he communicated his unwarranted suspicions to third parties by putting the information in the associationâ&#x20AC;&#x2122;s newsletter and or on its web site. If the board member pubECHO Journal | July 2009
27
Defamation Continued from page 28
lished the information with the consent or at the direction of the other members of the board of directors, the other board members and the association may also be liable. Likewise, if the board members repeat the defamatory statement to a third party, that repetition may also be considered a publication, which may in turn give rise to a claim for libel or slander against the other board members. In this situation, the act of repeating could be as simple as forwarding the e-mail. The example above demonstrates that actions taken by one board member may expose other board members or the association to liability for defamation. Comments by a manager may also be the basis for a libel claim against the association and the board, because the manager is the boardâ&#x20AC;&#x2122;s agent, and the managerâ&#x20AC;&#x2122;s communications are generally made on behalf of the association. Defenses to a Claim of Defamation It may seem that the association, its board of directors, or its manager(s) cannot say much of anything without running the risk of 28
July 2009 | ECHO Journal
being accused of defamation. Do not despair. There are several defenses to a claim of defamation. To qualify as libel or slander, a statement or other communication must be false and unprivileged. If a publication is true or if it is subject to one of several privileges enumerated in the California Civil Code, then it is not considered defamatory although it may satisfy all of the other elements of a claim for libel or slander. Truth as a Defense For example, if Dishonest Darryl is actually obtaining money from the association under false pretenses, then the board member cannot be held liable for defamation, even though the statement may damage Dishonest Darrylâ&#x20AC;&#x2122;s reputation, because the information communicated is true. Truth is an absolute defense to a claim for defamation. The defense of truth may be particularly appropriate when applied to CC&R violaContinued on page 31
Directory UPDATES Updates for listings in the 2008 ECHO Directory of Businesses and Professionals.
Additions to Member Listings Acker & Guerrero Roof Company, Inc. 1092 Calcot Place Oakland, CA 94606 Tel: 510-261-7227 Fax: 510-261-7269 Contact: George Acker, CEO www.agroof.com Email: george@agroof.com Four Star Cleaning & Restoration 4302 Solar Way Fremont, CA 94538 Tel: 510-796-5900 Fax: 520-438-0636 Contact: Jeff Farley www.fourstarclean.com Email: jefff@bayareafourstar.com 24-hour emergency services for fire, water, smoke, mold, asbestos, trauma cleanup and reconstruction by licensed, insured, bonded, certified general contractors with 38 yrs. experience in disaster cleanup and insurance repair to residential/commercial builders. The Hignell Companies 1750 Humboldt Rd. Chico, CA 95928 Tel: 888-304-4674 Fax: 530-894-6984 Contact: Ray Villar www.hignell.com Email: ray@hignall.com
M & C Association Management Services provides community association management and developer services to Fremont, Santa Clara, Stockton, Modesto, Copperopolis and the surrounding foothills. Since 1990, we’ve enriched communities and enhanced the lives of the people we serve. M & C is proud to be an Accredited Association Management Company® (AAMC®), which is the Community Associations Institute’s highest designation awarded to management firms.
1341 W. Robinhood Drive, Suite B7 Stockton, CA 95207 Tel: 209.644.4900 Fax: 209.644.4930
1171 Homestead Road, Suite 280 Santa Clara, CA 95050 Tel: 408.241.0023 Fax: 408.241.0093
37161 Niles Blvd. #A Fremont, CA 94536 Tel: 510.795.8308 Fax: 510.795.8422
171 Town Square Road, Suite 2C 1209 Woodrow Ave., Suite C6 Copperopolis, CA 95228 Modesto, CA 95350 Tel: 209.785.6700 Tel: 209.576.7800 The Leader in Community Association Management Fax: 209.785.6701 Fax: 209.576.2209
For management proposal information, please visit www.mccommunities.com or email info@mccommunities.com The nation’s leader in community association management
Continued on page 30 M&C_ECHOad_apr07.indd 1
ECHO Journal | July4/23/08 2009 2:35:1729 PM
Directory UPDATES Continued from page 29
Regency Management Group 24571 Silver Cloud Ct., # 101 Monterey, CA 93940 Tel: 831-647-2442 Fax: 831-647-2441 Contact: Carolyn Donaway www.regencymg.com Email: cdonaway@regencymg.com Specializing in homeowner association management. Roof Guard Roofing, Inc. 740 West San Carlos St. San Jose, CA 95126 Tel: 408-293-9519 Fax: 408-293-7610 Contact: Jeffrey Johnson www.roofguardinc.com Email: jjohnson@roofguard.com Full service roofing and waterproofing company specializing in HOA and multi-family projects. With an emphasis on flat/low slope and steep slope roofing. We perform maintenance and inspections. Saddleback Fence & Vinyl Products 2844 Croddy Way Santa Ana, CA 92704 Tel: 714-966-1227 Fax: 714-966-1202 Contact: Eve Boone www.saddlebackvinyl.com Email: eboone@saddlebackvinyl.com Californiaâ&#x20AC;&#x2122;s largest fence manufacturer and contractor. We stand behind our premium products, workmanship and discount pricing. As HOA specialists, we know how to treat you and your customers!
Changes to Member Listings M&C Association Management Services 4305 Hacienda Dr., Ste. 180 Pleasanton, CA 94588 Tel: 925-460-8890 Fax: 925-460-8897
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July 2009 | ECHO Journal
Defamation Continued from page 28
tions. If a board member or management company is discussing a homeowner violation with other board members, then as long as they can prove that the homeowner did, in fact, commit the violation, they will not be liable for defamation despite the damage to the homeowner’s reputation. The only difficulty arises in proving that the homeowner actually committed the alleged violation and that the description is accurate, such that the defense of truth applies. What about liability for publishing CC&R violations on the association’s web site or in a monthly newsletter? Although this publication would also be subject to the defense of truth, other factors, like invasion of privacy by publicizing private facts, such as the status of a homeowner’s account, might create problems for the association. Qualified Common Interest Privilege There is a qualified privilege for communications made, without malice, by a person who has an interest in the communication to another interested person, if the interested persons are related to one another in such a way that it can be reasonably assumed that the motivation behind the communication was innocent. This so-called “common interest” privilege has been used to defeat a claim of privilege where a former tenant sued an association and its board for libel for sending a letter to the owner of the unit stating that the tenant had exposed himself to a child. The court found that the communication was privileged because the homeowner had an interest in receiving the information. Going back to our Dishonest Darryl example, the concerned board member’s communications to fellow board members or homeowners might be subject to the qualified common interest privilege because they are clearly discussing something of common interest; namely, obtaining association funds under false pretense and Dishonest Darryl’s fitness for office. Our board member may be in trouble, however, if he does not have a good reason to believe that Dishonest Darryl obtained the funds under false pretense because he could be guilty of malice, which would negate the qualified “common interest” privilege.
Protection for Acts in Furtherance of Free Speech Additional protection for speech that might otherwise be classified as defamatory can be found in the anti-SLAPP (anti-strategic lawsuit against public participation) statute, which protects people or organizations from actions that interfere with the exercise of the right to free speech. In the recent case of Damon v. Ocean Hills Journalism Club, the California Court of Appeal applied the anti-SLAPP statute to protect board members’ and homeowners’ statements criticizing the performance of the association’s manager at board meetings and in a newsletter published by a member of the association. In finding that the communications were protected, the court recognized that the association was a quasi-governmental entity. The court stated that the newsletter and board meetings, which were open to the association community, constituted a public forum, even though the newsletter expressed only one point of view. The court found that the communications dealt with a matter of public interest because they related to the manner in which a large (3000-member) residential community would be governed. The court
also found that the statements at issue were not false statements but were the personal opinions of the speakers as to the manager’s performance. As such, the statements were protected speech and the manager’s defamation action was dismissed. Applying the Damon decision to the Dishonest Darryl hypothetical, our board member might be protected for his publication of his suspicions in the association newsletter or on the association’s web site because, depending on the size of the association, those communication vehicles would likely be deemed public forums. Likewise, because the communications relate to possible misuse of association funds and a candidate’s fitness to hold office, the communications are clearly about a matter of public interest. Accordingly, our board member’s communications in those forums would likely be protected. Conclusion So, if your association, through its board of directors and/or manager, plans on using the Internet to communicate information to Continued on page 41 ECHO Journal | July 2009
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News from ECHO
Raise My Maintenance Fees, Please! Homeowners campaign for election or re-election to their community association’s board of directors all too often with the promise of never increasing maintenance fees or imposing a special assessment on his or her constituents. Unlike our federal government, however, community associations cannot print more money when the coffers run dry, as they surely will if revenues aren’t increased to meet rising operating expenses. When board members boast about keeping maintenance fees at the same rate for several years (or decades!), it’s definitely not time to praise them for their financial acumen. Consider this: even at an average inflation rate of 3 percent per year (remember inflation was above 20 percent back in the 1980s), your association has lost tremendous buying power while costs of repairs and services have skyrocketed. Even if previous and current boards had increased maintenance fees a minimum of the Consumer Price Index (CPI) each year, the association would still be in serious financial straits because budget line items such as utilities and insurance, and every building 32
July 2009 | ECHO Journal
component affected by the price of oil, has far exceeded the CPI. To comply with their fiduciary obligations, community association boards should retain the consulting services of a competent CPA to help the board draft a long-term financial plan. The financial plan should include hiring a well-qualified reserve analyst to conduct a replacement reserve analysis to determine the current condition of the physical components of the common and limited common elements, when those elements will need to be replaced, how much it will cost to replace them, and how much the association should be setting aside monthly for the eventual replacement of those components. Only with the big picture understanding of the current and future financial condition of your community can board members make reasonable, informed decisions regarding the appropriate level of maintenance fees. Don’t make promises as a board candidate or board member that will later haunt you.
A Difficult Cult Associations offer senior adults an opportunity to enjoy living among like-minded friends. There is a pleasant, “We are in this together” feeling about being surrounded by
neighbors within walking and talking distance. Communal living arrangements are ideal and long lasting… unless their social ambience is threatened by the formation of a cult. What is a cult? In most cases it is a small group of residents who for various reasons assume an inclusively exclusive attitude and operate as a clique. Senior associations are likely targets for the development of these unhealthy political divisions. It starts with a small circle of friends who take over and run things. They dominate the board of directors. They control anything they can get their hands on, like the social calendar, the chairmanship of clubs, the decisions on how much and on what to spend association money. Before the general membership realizes what is happening, they set destructive, personal boundaries between those who are “in” and those who are “out.” Anyone who has experienced the workings of a cult will know exactly how disruptive that can be. It is the same game that young children play when they say, “I will be your friend if you will not be a friend with them.” Or “We’re best friends so let’s not hang around with anyone else.” It is the old “us” against “them” syndrome. So, what can residents do if they already have a small clique operating within their membership? There is no easy answer. There are legal ramifications. The cult leader may instigate a law suit if you do not approach the problem very carefully and protect yourself and your associa-
tion. To seek impartial outside advice is very wise. All members might remember that “love your neighbor” is still a good starter for communal living. Be as friendly as possible with everyone, including each member of the cult. Be patient. Try to appeal to their reason for choosing to live in a community association rather than off by themselves.
ECHO Seeks Candidates for the Board of Directors The ECHO Nominating Committee is seeking names of persons who are interested in being considered as candidates for positions on the ECHO Board of Directors. Four positions on the board will be up for election at the ECHO Annual Meeting that will be held in October. Persons interested in being considered for nomination should obtain and complete a nomination and qualifications form, available by request from the ECHO office. Every potential candidate, including incumbents, must submit a full form to the ECHO office no later than July 24 to be considered by the nominating committee. Those requesting nomination may be requested to interview with the nominating committee. The committee will meet in August to prepare recommendations for board consideration.
2009 Legislation at a Glimpse As of June 16, 2009 Bill No.
Author
Subject
Status
Position
Summary
AB 49
Feuer
Water Reduction
In Assembly Suspense File
Watch
This bill would require the state to achieve a 20% reduction in urban per capita water use in California by December 31, 2020. ECHO is monitoring this spot bill for its potential impact on homeowner association water consumption.
AB 121
Hernandez
Judgment Lien Extension
Passed Assembly; In Senate Judiciary
Watch
Under certain conditions, this bill would allow creditors to extend judgment liens on specified personal property by filing a continuation statement in the office of the Secretary of State. The statement must be filed no earlier than six months before the lien is scheduled to expire.
AB 313
Fletcher
Tax-based Assessments
Passed Assembly; Senate First Reading
Oppose
After December 30, 2009, would prohibit associations from levying assessments based upon the taxable value of the separate interests within the association. Associations that levied assessments based upon taxable value on or before December 30, 2009 would be exempted.
AB 566
Nava
Mobilehome Conversion Approval
Amended; Support Passed Assembly Appropriations
Would require a subdivider to obtain the approval of the majority of the residents in a mobilehome park before converting the park to resident ownership.
AB 869
Mendoza
Mobilehome Park Managers
Failed passage
Support
Defines “Park Manager” and “Certified Mobilehome Park Manager.”
AB 899
Torres
Disclosure Documents Index
Passed Assembly Housing; Second Reading
Support
Would require associations to distribute a list of all legally mandated disclosures to their members annually.
AB 927
Calderon
Construction Defect Claims
Passed Assembly; Senate First Reading
Watch
Deletes expiration date of provisions regulating the filing of a complaint for damages, by an association, against a developer for construction defects.
AB 1061
Lieu
Low WaterUsing Plants
Passed Assembly; In Senate Housing
Watch
Would render void and unenforceable any provision in the governing documents of an association that has the effect of prohibiting low water-using plants or prohibits or restricts compliance with local conservation ordinances.
AB 1108
Fuentes
Master Meter Regulations
Amended; In Oppose Appropriations Unless Suspense File Amended
Establishes new guidelines for master meter customers, including requirements that master meter customers maintain all submeter facilities and limits fines for late payments.
AB 1328
Salas
Contract Restrictions
Passed Assembly Housing; Second Reading
Nullifies contract length restrictions for associations in cases where the board reasonably anticipates that the contract will result in verifiable savings to the association, including establishing a water or energy efficiency program.
SB 23
Padilla
Mobilehome Safety Plan
Amended; Watch In Senate Appropriations hearing 5/18
SB 259
Benoit
Board Elections In Senate Judiciary; hearing cancelled
Watch
Support If Amended
Would require all mobilehome or manufactured home parks to develop and implement an emergency and fire safety plan, as well as appropriate emergency services training for park or community managers and onsite staff. In the event that the results of an election are invalidated for violation of the elections law, this bill provides that decisions of the improperly elected board shall not be invalidated unless those decisions violate the law or governing documents.
ECHO Journal | July 2009
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2008 ECHO Business & Professional Directory $20.00 Non-Member Price: $25.00
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Homeowners Association and You $13.00 Non-Member Price: $20.00
Community Association Statute Book—2009 Ed. $15.00 Non-Member Price: $25.00
This directory lists all business and professional members of ECHO as of December 2007. Current addresses, telephone and fax numbers, email addresses, and a short description are included. This directory is an invaluable tool for locating service providers that work with homeowner associations.
This well-known compact guide for operation of common interest developments in California now includes a comprehensive index of the book and a chapter containing more than 200 frequently-asked questions about associations, along with succinct answers.
A practical problem solving guide to all aspects of community association living. Written by two long-time association residents, it provides an insightful overview of community living from the viewpoint of experienced owners in readable language. Recently revised and expanded.
Contains the 2009 version of the Davis-Stirling Common Interest Development Act, the Civil Code sections that apply to common interest developments and selected provisions from the Civil, Corporations, Government and Vehicle Codes important to associations.
Robert’s Rules of Order $7.50 Non-Member Price: $12.50
The Board’s Dilemma $10.00 Non-Member Price: $15.00
A step-by-step guide to the rules for meetings of your association, the current and official manual adopted by most organizations to govern their meetings. This guide will provide many meeting procedures not covered by the association bylaws or other governing documents.
In this essay, attorney Tyler Berding confronts the growing financial problems for community associations. Mr. Berding addresses board members who are struggling to balance their duty to protect both individual owners and the corporation, and gives answers to associations trying to avoid a funding crisis.
California Building Guidelines for Residential Construction $52.50 Non-Member Price: $60.00
Homeowners Associations— How-to Guide for Leadership $35.00 Non-Member Price: $45.00 This well-known guide and reference is written for officers and directors of homeowner associations who want to learn how to manage and operate the affairs of their associations effectively.
Questions & Answers About Community Associations $18.00 Non-Member Price: $25.00 For 12 years, Jan Hickenbottom answered homeowners’ questions in her Los Angeles Times column on community associations. Now collected in one volume, readers can find answers to almost any question about CIDs.
Reserve Fund Essentials $18.00 Non-Member Price: $25.00 This book is an easy to read, musthave guide for anyone who wants a clear, thorough explanation of reserve studies and their indispensable role in effective HOA planning. The author gives tips to help board members mold their reserve study into a useful financial tool.
This easy-to-read manual is an excellent tool to understand a new home. It contains chapters covering more than 300 conditions that have been sources of disputes between homeowners and builders, offers homeowner maintenance tips, and defines the standards to which a residence should be built.
The Condo Owner’s $15.00 Answer Book Non-Member Price: $20.00
CID Leadership Two-Disc DVD set $30.00 Non-Member Price: $40.00 Board—An orientation for new board
An excellent guide to understanding the rights and responsibilities of condo ownership and operation of homeowner associations. The question-and-answer format responds to more than 125 commonly-asked questions in an easy to understand style. A great resource for newcomers and veteran owners.
members and a refresher for current members. Meetings—How to conduct effective meetings that stay focused and achieve results. Reserves—How adequately-funded reserves prevent problems in associations. Insurance —Considers insurance to protect multi-million dollar community assets.
Dispute Resolution in Homeowner Associations $20.00 Non-Member Price: $25.00 This publication has been completely revised to reflect new requirements resulting from passage of SB 137.
Publications to answer your questions about common interest developments Now Order Online at echo-ca.org
Bookstore Order Form Board Memberâ&#x20AC;&#x2122;s Guide for Contractor Interviews $20.00 Non-Member Price: $25.00
Executive Council of Homeowners 1602 The Alameda, Suite 101, San Jose, CA 95126 Phone: 408-297-3246 Fax: 408-297-3517 TITLE
QUANTITY
This report is a guide for directors and managers to use for interviews with prospective service contractors. Questions to find out capabilities and willingness of contractors to provide the services being sought are included for most of the contractor skills that associations use.
SUBTOTAL CALIFORNIA SALES TAX (Add 9.25%) TOTAL AMOUNT
Yes! Place my order for the items above. Board Memberâ&#x20AC;&#x2122;s Guide for Management Interviews $20.00 Non-Member Price: $25.00 This guide for use by boards for conducting complete and effective interviews with prospective managers takes the guesswork out of the interview process. Over 80 questions covering every management duty and includes answer sheets matched to the questions.
q Check q Visa q Mastercard Credit Card Number Exp. Date
Signature
Name (please print) Association (or company) Address City Daytime Telephone
State
Zip
AMOUNT
Events Calendar
Make a note of these dates Thursday, July 2 North Bay Resource Panel 11:30 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael Friday, July 10 East Bay Resource Panel 9:30 a.m. Angius & Terry 1900 N. California Blvd., Suite 950, Walnut Creek Monday, July 13 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant, Oakland Tuesday, July 14 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz Wednesday, July 15 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park Thursday, July 16 San Francisco Luncheon 11:45 a.m. to 2:00 p.m. St. Francis Yacht Club San Francisco
Wednesday, August 5 Maintenance Resource Panel 12:00 Noon ECHO Office 1602 The Alameda, Suite 101 San Jose
Friday, September 4 East Bay Resource Panel 9:30 a.m. Angius & Terry 1900 N. California Blvd. Suite 950, Walnut Creek
Wednesday, August 12 South Bay Resource Panel 12:00 Noon Il Fornaio 302 S. Market St., San Jose
Tuesday, September 8 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz
Friday, August 14 East Bay Resource Panel 9:30 a.m. Angius & Terry 1900 N. California Blvd. Suite 950, Walnut Creek Wednesday, August 19 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park Friday, September 3 North Bay Resource Panel 11:45 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael
Monday, September 14 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant Oakland Wednesday, September 16 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park Thursday, September 17 San Francisco Luncheon 11:45 a.m. St. Francis Yacht Club San Francisco Saturday, September 19 Central Coast Fall Seminar 8:00 a.m. to 1:00 p.m. Best Western Seacliff Inn, 7500 Old Dominion Ct., Aptos
Regularly Scheduled Resource Panel Meetings Resource Panel Maintenance North Bay East Bay Accountants Central Coast South Bay Wine Country Legal
36
July 2009 | ECHO Journal
Meeting First Wednesday, Even Months First Thursday, Odd Months Second Friday, Monthly Second Monday, Odd Months Second Tuesday, Odd Months Second Wednesday, Even Months Third Wednesday, Monthly Quarterly
Location ECHO Office, San Jose Contempo Marin Clubhouse, San Rafael Angius & Terry, Walnut Creek Francesco’s Restaurant, Oakland Pasatiempo Inn, Santa Cruz Il Fornaio, San Jose Eugene Burger Management Co., Rohnert Park Varies
408-295-7767 or 877-295-FLOW
www.aquatekplumbing.com Fire Alarm Systems Fire Sprinkler Systems Testing, Service, Design & Installation
Tele-Entry & Access Control Emergency Exit Lighting Automated Gates Fire-Rated & Rollup Doors
Complete Service and Repair Plumbing Copper Repipes AquaTek Plumbing, Inc. has been servicing residential and commercial customers faithfully since 1982. Call us today for more information about AquaTek and the full spectrum of plumbing services we provide.
For Information please call: 650 988-9508 or 888 988-9508 or e-mail info@statcomm.com Lic # 675521 Underwriters Lab #UUFX.S8915 Diamond Certified ECHO Journal | July 2009
37
Honor Roll
About ECHO
ECHO Honors Volunteers Tyler Berding 2009 Volunteer of the Year ECHO Resource Panels Accountant Panel Richard Schnieder, CPA 707-576-7070 Central Coast Panel John Allanson 831-685-0101 East Bay Panel Scott Burke, 408-536-0420 Mandi Begley, 925-937-0434 Legal Panel Mark Wleklinski, Esq. 925-280-1191 Maintenance Panel Brian Seifert, 408-536-0420 North Bay Panel Diane Kay, CCAM, 415-846-7579 Stephany Charles, CCAM 415-458-3537 San Francisco Panel Jeff Saarman, 415-749-2700 South Bay Panel Geri Kennedy, CCAM 650-348-2691 ext. 1006 Kimberly Payne, 408-200-8470
SF Luncheon Speakers John Allanson Jeffrey A. Barnett, Esq. Tyler P. Berding, Esq. Ronald Block, PhD. Doug Christison, PCAM, CCAM Karen Conlon, CCAM Rolf Crocker, CCAM Ross Feinberg, Esq. David Feingold, Esq. Tom Fier, Esq. Kevin Frederick, Esq. John Garvic, Esq. Beverly Gordon, CCAM Beth Grimm, Esq. Brian Hebert, Esq. Roy Helsing Stephen Johnson, CFP Julia Lave Johnston Garth Leone Nico March Kerry Mazzoni Larry Russell, Esq. Steve Saarman Nathaniel Sterling, Esq. Debra Warren, PCAM, CCAM Steven Weil, Esq. Mark Wleklinski, Esq. Glenn Youngling, Esq.
Wine Country Panel Maria Birch, 707-584-5123
Marin Seminar Speakers
Legislative Committee
David Feingold, Esq. Linnea Juarez, PCAM, CCAM Wanden Treanor, Esq. Glenn Youngling, Esq.
Paul Atkins Jeffrey A. Barnett, Esq. Sandra Bonato, Esq. Jerry L. Bowles Joelyn Carr-Fingerle, CPA John Garvic, Esq., Chair Geri Kennedy, CCAM Wanden Treanor, Esq.
38
July 2009 | ECHO Journal
Association Finances Seminar Speakers Joelyn Carr-Fingerle, CPA Bill Erlanger, CPA James Ernst, CPA John Garvic, CPA Donald Haney, CPA
North Bay Winter Seminar Speakers Sandra Bonato, Esq. Robert Hall, Esq. Diane Kaye, CCAM David Kuivanen, AIA Steve Lieurance, CCAM Steven Saarman Robert Smylie Barbara Zimmerman, Esq.
Recent ECHO Journal Contributing Authors March 2009 Tyler Berding, Esq. Thomas Douma Sandra Gottlieb, Esq. Beth A. Grimm, Esq. Graham Oliver David Swedelson, Esq. Steven Weil, Esq.
What is ECHO? ECHO (Executive Council of Homeowners) is a California non-profit corporation dedicated to assisting community associations. ECHO is an owners’ organization. Founded in San Jose in 1972 with a nucleus of five owner associations, ECHO membership is now 1,525 association members representing over 150,000 homes and 325 business and professional members.
Who Should Join ECHO? If your association manages condominiums or a planned development, it can become a member of ECHO and receive all of the benefits designated for homeowner associations. If your company wants to reach decision makers at over 1,525 homeowner associations, you can become an associate member and join 325 other firms serving this important membership.
Benefits of ECHO Membership • Subscription to monthly magazine for every board member • Yearly copy of the Association Statute Book for every board member • Frequent educational seminars • Special prices for CID publications • Legislative advocacy in Sacramento
ECHO Membership Dues
April 2009 Julie Adamen Colletta Ellsworth-Wicker, PCAM Tom Fier, Esq. Steven Weil, Esq. May 2009 Tyler P. Berding, Esq. Kim Goldsworthy Richard Tippett Glenn H. Youngling, Esq. June 2009 James O. Devereaux, Esq. Hermann Novak Steven O’Brien Debra J. Oppenheimer, Esq. Allen F. Schafer Dean Williams, PCAM
HOA Size 2 to 25 units 26 to 50 units 51 to 100 units 101 to 150 units 151 to 200 units 201 or more units Business/Professional
Rate $120 $165 $240 $315 $390 $495 $425
ECHO Journal Subscription Rates Members Non-members/Homeowners Businesses & Professionals
$50 $75 $125
How Do You Join ECHO? Over 1,800 members benefit each year from their membership in ECHO. Find out what they’ve known for years by joining ECHO today. To apply for membership, call ECHO at 408-2973246 or visit the ECHO web site (echo-ca.org) to obtain an application form and for more information.
Seeking CANDIDATES for the ECHO Board of Directors
COM PA S S
The Nominating Committee for the ECHO Board of Directors is seeking names of persons who are interested in being considered as candidates for positions on the ECHO Board of Directors. Four positions on the board will be up for election at the ECHO Annual Meeting that will be held in October. These positions are for threeyear terms. Current directors whose terms expire in 2009 are Paul Atkins, Jerry L. Bowles, David L. Hughes and Steven S. Weil. Board members are expected to attend all six three-hour board meetings held each year, generally at the ECHO Office in San Jose. Each board member also serves on one or more committees that hold regular meetings throughout the year. These two activities involve a commitment of four to six hours per month plus travel time. In addition members are expected to attend the Annual Seminar, Annual Meeting and a two-day board retreat each November. Board members receive no reimbursement for these activities. Nominees will also be expected to have been recent active participants in ECHO activities and to have thorough familiarity with the organization and the CID industry. Persons interested in being considered for nomination should obtain and complete a nomination and qualifications form, available by request from the ECHO office. Every potential candidate, including incumbents, must submit a full form. All completed forms must be submitted to the ECHO office no later than July 24, 2009, to be considered by the nominating committee. Those requesting nomination may be requested to interview with the nominating committee. The committee will meet in August to prepare recommendations for board consideration.
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ECHO Marketplace
Adver tiser Index
The place to find business and professionals for your association Affirmative Management . . . . . . . . .20 Alpha Restoration & Waterproofing . .8
WILLIAM FISHER ARCHITECTURE (831)246-0117 FAX:(831)457-0246 INC. MODERN-ARCHITECTURE.COM
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SBI, LLC 180 Second Street Suite A Los Altos, California 94022 Voice: (650) 949-3774 Fax (650) 941-3689 Email: tom@sbiusa.net General Contractors • Civil Engineers
Reserve Studies • Energy Surveys Insurance Replacement Cost Analysis Construction Defects Mold Sampling Foundation and Drainage Inspections
American Asphalt . . . . . . . . . . . . . .18 American Management Services . . .10 Angius & Terry . . . . . . . . . . . . . . . . .3 Applied Reserve Analysis . . . . . . . . .25 AquaTek Plumbing . . . . . . . . . . . . .37 A.S.A.P. Collection Services . . . . . . .13 Association Reserves . . . . . . . . . . .19 Bayridge Group . . . . . . . . . . . . . . . .16 Berding & Weil . . . . . . . . . . . . . . . .44 Coastal Termite Control . . . . . . . . .16 Collins Management . . . . . . . . . . . .25 Community Association Banc . . . . . .24 Community Management Services . .18 Community Reconstruction Solutions 37 Compass Management . . . . . . . . . .39 Cool Pool Service . . . . . . . . . . . . . .19 Cornerstone Community Mgmnt . . . . .8 Draeger . . . . . . . . . . . . . . . . . . . . .11 Ekim Painting . . . . . . . . . . . . . . . . .31 First Bank Association Bank Services30 Flores Painting . . . . . . . . . . . . . . . .29 Focus Business Bank . . . . . . . . . . .25
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Defamation Continued from page 31
its members, there are certain guidelines that should be followed to minimize the association’s, individual board members’ and manager’s risk of exposure to liability for libel. Those guidelines are as follows: Make sure the communication about the person looks “official” so that the use of the Internet is considered a public forum and falls under the anti-SLAPP statute. Make sure the communication pertains to the owners’ interest as members of the association or as homeowners. Minimize the use of adjectives in your communication; be objective and recite facts that can be supported by evidence. Even though board members and managers have reason to believe certain facts to
be true, refrain from using affirmative language by using “may” and “could” instead of “did,” etc. Armed with these guidelines, your association should be able to communicate to its members on the Internet about other persons while reducing the risk of exposure to a libel lawsuit.
Helsing Group . . . . . . . . . . . . . . . .16 Hill & Company. . . . . . . . . . . . . . . .24 Louis & Riparetti, Inc. . . . . . . . . . . . .2 M&C Association Services . . . . . . . .29 M. L. Nielsen Construction . . . . . . .30 Massingham and Associates . . . . . .17 Pelican Management Group . . . . . . .16 PML Management Corp. . . . . . . . . .11 Pollard Unlimited . . . . . . . . . . . . . .28 Pro-Craft Builders . . . . . . . . . . . . . .39 Professional Association Services . .39 R. E. Broocker Co. . . . . . . . . . . . . .12 REMI Company . . . . . . . . . . . . . . . .19 Saarman Construction . . . . . . . . . .13 Statcomm . . . . . . . . . . . . . . . . . . .37 Steve Tingley Painting . . . . . . . . . . .28 Steve’s Painting Services . . . . . . . .10
Matt Ober and Melanie Bingham are attorneys. Ober is a partner at the Pasadena law firm of Richardson and Harmon where he heads the community association law practice, which provides legal representation to common interest developments throughout Southern California. ECHO Journal | July 2009
41
2009 ECHO Annual Seminar Sponsors PLATINUM BENEFACTORS
SILVER PATRONS
Angius & Terry
Bayridge Group
Management Solutions
Draeger
GOLD BENEFACTORS
Frazee Paint
Advance Construction Technology
R.E. Broocker Company
American Management Services Berding|Weil
Statcomm Law Offices of Wanden P. Treanor
Cool Pool First Bank
PATRONS
Hughes Gill Cochrane
Aragon Commercial Landscaping
Petersen Dean Roofing
Community Association Banc
Saarman Construction
New election rules: $500 In today’s economic crisis, there may be some items that associations can cut to reduce costs. ECHO membership is not one. Let’s face it, educated board members are better fiduciaries, which helps them to avoid costly law suits and possibly personal liability. ECHO is the premier resource in California for board member education. ECHO offers new articles each month with practical and easy to understand advice about current California requirements, and what may be on the horizon. ECHO staff is available by phone or E-mail to answer members’ questions about association problems or to recommend competent professional services when necessary. And with discounted member rates at more than a dozen educational events throughout the year, ECHO is simply the best educational resource for California homeowners. Avoid Litigation Each year, as a member benefit, ECHO sends every board member a copy of the updated Community Association Statute book. Every issue of the ECHO Journal and every seminar examine one or more aspects of compliance with association law, because one of the major causes of expensive litigation is ignorance of the law.
Mailing ballots: $200 Make Better Financial Choices Many associations struggle to understand reserve funding requirements and strategies, the benefits and disadvantages of using special assessments, proper collections practices, and even how to determine what components the association is required to maintain. At a time when wise financial planning is essential, ECHO members have access to a wealth of articles about reserve funding, budgeting, insurance, collections, and much more. Fight Costly Regulation Every year, Sacramento legislators introduce more legislation that confuses the job of California board members and increases the costs of compliance. ECHO is committed to fighting unnecessary regulation in California and promoting the interests and welfare of common interest developments. Hire Competent Professionals ECHO offers a variety of articles and publications to help members evaluate their service providers, including questions to ask prospective management firms and contractors. All ECHO Journal articles are available to members at no cost, and publications are sold to members at a discount.
Avoiding a lawsuit: Priceless. Spend a Little, Get a Lot The cost of ECHO membership is minimal. In a worsening economy, associations are looking to cut big expenses from their budgets. Yet, ECHO membership is as little as 25¢ per unit each month. For that small cost, here’s what every board member receives as part of being a member of ECHO: • A subscription to the ECHO Journal • An annual copy of the current Community Association Statute book • Unlimited access to ECHO’s library of past articles • Telephone consultations with ECHO staff about their problems • Reduced fees for ECHO events • Discounted prices on publications • And much more… In These Tough Economic Times, ECHO Membership is a Necessity As the only California organization devoted exclusively to board member and homeowner education, ECHO is a one-of-a-kind resource that your association can’t afford to lose.
Condominium Conversions Did You Get What You Paid For?
Condo conversions are not new condominiums. They are older rental apartments that were converted to condos. So, what’s wrong with that? Nothing, if the financial plan that came with your condo is up to the task of maintaining a building with 20-30 years of deferred maintenance. How do you know? You probably don’t unless someone
has taken a close look at the homeowner association’s budget and compared it to the actual condition of the buildings. The fact is, very few condominium conversions were sold with repair budgets that are adequate to meet the needs of the project. What does this mean to you? If the budget is inadequate, it will mean either increased homeowner assessments or a gradually deterio-
rating condominium project. Or both. In either case, you didn’t get what you paid for. If you’d like to know the truth now about what you bought, call us. If you want to wait and see what happens, ok, but either way, we’ll be here when you need us. Berding | Weil, LLP 3240 Stone Valley Road West Alamo, California 94507 925-838-2090 www.berding-weil.com