Journal_11_02

February 2011

A Journal for California Community Association Leaders

echo-ca.org

2010 Case Law in Perspective

ALSO INSIDE THIS ISSUE:

• Understanding Your HOA’s Financial Health • Planning for Major Reconstruction • Towing Transparency

Change Service Requested ECHO 1602 The Alameda STE 101 San Jose, CA 95126

PRSRT STD U.S. Postage PAID Sundance Press 85719

Learn how to handle the toughest issues facing your homeowner association Seminar Agenda 8:00 a.m.

Registration and Continental Breakfast

8:45 a.m.

Welcome

9:00 a.m.

Legislative Update David F. Feingold, Esq. While Sacramento was relatively quiet this year, you will get a preview of things to come, and hear about all of the disputes that ended up in front of a judge in 2010—and pick up valuable tips to help keep your community out of court!

9:45 a.m.

Oliver Burford

The Glass is Half Full Glenn H. Youngling, Esq. Tired of depressing stories of underfunded and underwater communities? See the positives, and pick up tips on how to navigate the rocky shores of collection, special assessments, foreclosures, short sales, and running the community in today’s reality!

Marin County Seminar Saturday, February 5, 8:00 a.m. to 1:00 p.m.

Embassy Suites, 101 McInnis Pkwy., San Rafael Member Online Registration before January 28: $45 Online Registration after January 28: $50

Yes, reserve _____ spaces @$50 each for the Marin Seminar.

Amount enclosed: $__________ (attach additional names) Name: ______________________________________________________ HOA or Firm: ________________________________________________

10:30 a.m.

Break

10:50 a.m.

Conflict Resolution for Directors Wanden P. Treanor, Esq. Learn valuable tips on resolving conflicts in your community in this entertaining session, while you lose 20 pounds and become a better person too!

Address: ____________________________________________________

Trends, Tips and Tricks Q&A Session All Speakers From audience input in the morning, our speakers will cover what is most important to you. From email and insurance to enforcement issues, this dynamic session will hit your hot topics and more.

Visa/Mastercard No. _____________________ Exp. Date: ________

11:30 a.m.

12:30 p.m.

1:00 p.m.

Drawings for Door Prizes Adjourn

City: __________________________ State: _____ Zip: ____________ Phone: ______________________________________________________

Signature: ___________________________________________________ Orders will not be processed without payment in full. Fees for cancelled registrations will not be refunded. Return with payment to: ECHO, 1602 The Alameda, STE 101, San Jose, CA 95126 Telephone: 408-297-3246; Fax: 408-297-3517

Marin County Seminar—page 2

Central Coast Winter Seminar—page 33

Wine Country Seminar—page 43

ontents 6

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2010 Statutory & Case Law Update—Part II Attorney Jeff Barnett provides his annual summary of case law and legislative developments for the 2010 calendar year. Part I, published in the January 2011 issue addressed statutes enacted by the Legislature. Part II covers important decisions handed down by California’s Appeals Courts and Supreme Court.

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Understanding Your HOA’s Financial Health While it is always important to know where your community stands financially, it is especially important to understand its financial status in an economy riddled with increasing expenses, delinquencies and bad debt write-offs. This article offers several recommendations for analyzing a community’s financial health.

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Planning and Paying for Major Reconstruction This article describes the road to the successful financing and launch of a major construction project. The two keys to success are a good financial analysis to determine what viable financing options are available and an in-depth project analysis with detailed specifications and drawings.

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Transparency in Towing A new law requires entities that charge for towing or storage to post a notice that contains information regarding a vehicle owner’s rights and responsibilities if his or her vehicle is towed. Is your association’s towing contractor in compliance?

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.

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 2011 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. 1602 The Alameda, Suite 101 San Jose, CA 95126 408-297-3246 Fax: 408-297-3517 www.echo-ca.org info@echo-ca.org 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 Diane Rossi Secretary Dorothy Kopczynski Directors Paul Atkins John Garvic Robert Rosenberg Richard Tippett Steven Weil

Jerry L. Bowles David Levy Kurtis Shenefiel Wanden Treanor

Executive Director Oliver Burford

Departments 32 News from ECHO

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34 Directory Updates 36 ECHO Bookstore 38 Events Calendar

Design and Production George O’Hanlon

41 ECHO Marketplace

ECHO Mission Statement

41 Advertiser Index

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.

On the Cover February 2011 | ECHO Journal

Legislative Consultant Government Strategies, Inc.

40 ECHO Volunteers

Case Law Update—page 6 4

Communications Coordinator Tyler Coffin

PRESENTING 2011 ECHO Seminars

February 5

March 5

March 19

April 16

June 17 & 18

September 24

October 22

Marin County Seminar

Half-Day Seminar

Embassy Suites 101 McInnis Pkwy., San Rafael, CA

8:00 a.m. to 1:00 p.m.

Central Coast Winter Seminar

Half-Day Seminar

Hilton Santa Cruz, Scotts Valley 6001 La Madrona Dr., Santa Cruz, CA

8:00 a.m. to 1:00 p.m.

Wine Country Seminar

Half-Day Seminar

Sally Tomatoes 1100 Valley House Dr., Rohnert Park, CA

8:00 a.m. to 1:00 p.m.

South Bay Seminar

Half-Day Seminar

Campbell Community Center 1 W Campbell Ave., Campbell, CA

8:00 a.m. to 1:00 p.m.

ECHO Annual Seminar

Two-Day Seminar

Santa Clara Convention Center Santa Clara, CA

8:00 a.m. to 4:30 p.m.

Central Coast Fall Seminar

Half-Day Seminar

Hilton Santa Cruz, Scotts Valley 6001 La Madrona Dr., Santa Cruz, CA

8:00 a.m. to 1:00 p.m.

Peninsula Fall Seminar

Half-Day Seminar

Crowne Plaza Hotel 221 Chess Dr., Foster City, CA

8:00 a.m. to 1:00 p.m.

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February 2011 | ECHO Journal

By Jeffrey A. Barnett, Esq.

2010 Statute and Case Law Update Part II—Case Law Developments his article provides a summary of statutory and case law developments for the calendar year 2010. Part I, printed in the January 2011 issue of the ECHO Journal, offered a discussion of legislation of interest to the common interest development industry that has been enacted as law, as well as bills that were vetoed by the Governor or died in Committee. Part II, printed below, will address important decisions that affect common interest development housing handed down by the California courts during 2010.

T

1. Mansouri vs. Superior Court of Placer County (Fleur Du Lac Estates Association), 181 Cal.App. 4th 633 (2010) The association obtained a court order compelling arbitration of its dispute with

Ms. Mansouri concerning the remodeling of her condominium patio. The trial court made an order compelling arbitration and granted attorney’s fees to the association.

Ms. Mansouri appealed, challenging the enforceability and conscionability of the CC&Rs clause, application of the arbitration clause to the dispute, and whether the association complied with applicable statutory requirements for the petition to compel arbitration.

Here the Court of Appeal found the arbitration provision to be enforceable, not unconscionable, and applicable. However, it concluded that the association erred in failing to properly demand arbitration under the arbitration agreement and establish to the Court that the other party had refused to arbitrate under the agreement prior to

ECHO Journal | February 2011

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petitioning the Court for an order to compel arbitration. Therefore, the Court of Appeal overturned the trial court’s order compelling arbitration and attorneys fees and awarded the homeowner her attorney’s fees on appeal.

The concern of the Court of Appeal in this decision is that the arbitration provision in the CC&Rs required a panel of three persons, whereas the communications from the association to the owner proposed binding arbitration with one arbitrator only. The Court discounted the association’s argument that the owner never indicated a desire to arbitrate the dispute at all.

The lesson from this case is that alternative dispute resolution policies in the governing documents of the association must be strictly followed if the legal system is to enforce that procedure.

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February 2011 | ECHO Journal

2. Clear Lake Riviera Community Association vs. Cramer, 182 Cal.App. 4th 459 (2010) In this case, the Cramers were homeowners who sought architectural approval for the construction of a residence. It was approved by the architectural committee, subject to an association guideline that limited the height of homes within the development. The Cramer’s home was located on a sloping lot, so compliance with the height restriction depended upon the location of the residence on the lot.

During construction the association notified the owners that the location of the home would result in a violation of the height guideline. The owners proceeded with construction of the residence despite this warning. The as-built residence exceeded the height guideline by 9 feet and impaired the views of two neighbors. The association filed suit to order the defendants to bring their home into compliance. The trial court so ordered, and that order was affirmed on appeal.

Important rulings by the court of appeal include the following: 1. Circumstantial evidence was sufficient to prove that the height guideline was validly adopted. The Court enforced the guideline even though there were no minutes of its approval. The height guideline was included in printed form and was distributed to all prospective builders. The guideline was also followed by the committee during the relevant timeframe in evaluating applications and was believed by committee members to be an enforceable regulation.

2. The “rule change” procedure in Civil Code Section 1357.100 and following was not applicable because the height guideline rule was adopted prior to the effective date of the statute, which was January 1, 2004.

3. The architectural committee properly functioned, although there was some question as to its membership. Certain individuals acting with the committee may have not been formal members, but they may have been “pro tem” committee members.

4. The trial court did not abuse its discretion in ordering that the house be brought into compliance with the height restriction even though expert testimony indicated that it would cost at least $200,000 to do so. The Court found that the cost and inconvenience of bringing the home into compliance was not disproportionate given their intentional conduct. California law prohibits a defendant from raising a “hardship” defense to defeat an injunction as to encroachments, if the encroaching party was willful nor negligent.

Analogizing this principle to the architectural violation, the trial court and court of appeal held that the Cramers could not raise the defense that the relocation of their property would constitute a hardship, since they acted intentionally.

5. The trial court and court of appeal also found that the injunction was warranted because of irreparable harm to the neighbors who testified that their prior unobstructed views had been blocked by the Cramer’s home, resulting not only in diminution of value, but also a substantial loss of their enjoyment. The construction of the home also resulted in a loss of privacy.

3. Wolf vs. CDS DEVCO, 185 Cal.App. 4th 903 (2010) A former director brought suit to allow him to pursue a complete inspection of corporate financial records, which he had been requesting for a period of almost one year before he received notification that he would not be nominated for re-election to the corporation’s board. The director contested his removal from the board and stated that the removal should not affect his inspection rights or deprive him of standing to pursue a lawsuit as a former director.

The trial court sustained demurs to the former director’s complaint, finding that he did not have statutory standing as a director to pursue his demands for inspection, and this ruling was sustained on appeal.

This ruling is consistent with the appellate decision in Villa Europa Homeowners Associa-

tion vs. Superior Court, which limits corporate inspection rights to seated directors and does not extend Corporations Code inspection rights of directors to former directors who may have made a request for inspection during their term of office.

4. Chapala Management Corporation v.

Stanton, 186 Cal.App. 4th 1532 (2010).

Homeowners Thomas and Donna Stanton replaced two windows in their condominium with “Sandtone” colored windows despite disapproval of their application by the condominium association on grounds that they were not an approved color. The association sued to enforce the window color requirement. The trial court ordered the Stantons to replace the windows and to pay the association’s attorney fees in the amount of $59,122.50. The Stantons appealed on grounds that: (1) the association had specific and adequate legal remedies under the CC&Rs and therefore an injunction was improper; (2) the association ignored Civil Code requirements granting the defendants a hearing before the board of directors; (3) the architectural review committee had improperly disregarded provisions of the CC&Rs as to window colors; and (4) the architectural review committee’s actions were arbitrary, capricious or discriminatory.

The Court of Appeal concluded that the trial court properly granted an injunction against the Stantons. It found that the association did have a remedy for noncompliance by removing the windows and assessing the owners for the cost, as provided by the CC&Rs. But the appellate court ruled that it was not the exclusive legal remedy. Therefore, the decision of the trial court to grant the injunction was found to be within its authority and not an abuse of discretion. The appellate court noted, in upholding the trial court’s decision, that the Stantons intentionally proceeded with the unauthorized window installation in the face of the architectural review committee’s rejection of their application, that the CC&Rs stated that damages at law are an inadequate remedy for nonmonetary breaches and expressly permitted the association to seek injunctive relief to remedy the violations.

In further support of the injunction, the Court found that it was within the board’s reasonable discretion to file suit and pursue the equitable remedy of injunctive relief.

Evidence showed that the architectural review committee completed a reasonable investigation concerning the dispute by ECHO Journal | February 2011

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meeting with the owners to discuss their window color and by comparing the “Sandtone” windows to the association’s paint standards for similarly situated windows. The evidence also indicated that the association unsuccessfully sought to resolve the matter through mediation. The appellate court gave deference to the architectural review committee’s authority under the CC&Rs to maintain the architectural and aesthetic integrity of the association.

Importantly, the Court of Appeal made special note that if it were not reviewing the matter on appeal, but considering it as a matter of first impression, it would question the board’s judgment in resorting to expensive and time-consuming litigation generating thousands of dollars of legal fees, rather than electing to notify the owners of their violation and issue a directive that they paint or replace the windows with windows of an approved color as authorized by the CC&Rs. The Court said that it would have been reasonable for the association to remedy the noncompliance by painting the two windows and charging the owners the expense of doing so and recovering the minimum cost in an action at law.

The Stantons argued that the association was not entitled to the injunction because it never offered them the right to a board hearing following the architectural review committee decision as required by Civil Code Section 1378(a) and (4) and (5). The Court of Appeal rejected this argument although there was no evidence that the association met the requirement. The Stantons failed to raise the issue in the trial court, and did not meet their burden to affirmatively establish that they were prejudiced by the error.

Moreover, the record showed that Mr. Stanton wrote the board requesting reconsideration following the decision by the architectural review committee. The property manager advised Mr. Stanton of the date of the board’s meeting, to which he replied that he was unable to attend due to a conflict and instead would submit written questions.

The owners challenged the requirement of the association that casement windows on the front, street-facing side of the units be brown in color, ranging from a medium to a dark brown depending on whether the windows were varnished wood, painted wood, or vinyl. The window color chosen by the Stantons was a lighter, gray-based earth-tone color, rather than the required medium to dark brown. The Stantons challenged the

association’s paint color scheme as unauthorized and capricious because it was in violation of the CC&Rs which required all exterior replacement windows to be “chocolate brown” in color without regard to the location.

The appellate court discounted this argument because the Stantons replaced the window, without architectural review committee approval and, according to their argument, the window color they were required to install would have been chocolate brown.

Moreover, the appellate court found that the trial court properly concluded that the architectural review committee had discretion in granting requests for improvements on the basis of aesthetic considerations. This discretion was not wholly arbitrary because it was based on a rational relationship to the protection, preservation, operation and purpose of the affected land.

Finally, the Court of Appeal rejected the contention of the Stantons that the trial court erred in not finding the architectural review committee to have acted in an arbitrary, capricious or discriminatory manner, even though the evidence showed that one other owner had been allowed to install “Sandtone” colored windows in the front of his unit. The Court found that the association had maintained a longstanding policy of requiring street-facing windows to be a darker brown color, but allowing owners to use lighter colors on other non-street-facing windows.

Although the appellate court affirmed the judgment, it ordered the parties bear their own costs on appeal.

5. Pinnacle Museum Tower Association v.

Pinnacle Market Development (US), LLC, 187 Cal.App. 4th 24 (2010); California Supreme Court, Case No. S186149.

This homeowner association filed a construction defect action against the developer of the condominium project for itself, and as a representative of its members, for damage to common areas, to property owned by the association, and to property owned by individual members. The Court of Appeal concluded that an arbitration provision in the declaration of covenants, conditions and restrictions recorded by the developer of the condominium project was not an “agreement” sufficient to waive the constitutional right of jury trial for construction defect claims brought by the homeowner association. The CC&Rs purported to prohibit amendment by the association without the

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written consent of the developer. The Court further held that the jury waiver provision in the purchase and sale agreements signed by the members of the association was not enforceable, and therefore neither the homeowners nor the association were bound by it.

The Court noted that there was not an “agreement” to waive the jury fees because there was no express acceptance by the association, or any conduct by the association from which necessary agreement could be implied.

This ruling followed the decision in Treo & Kettner Homeowners Association. vs. Superior Court, 166 Cal.App. 4th 1055 (2008) which held that a provision in the CC&Rs making all disputes between a developer and homeowner association subject to judicial reference under Code of Civil Procedure Section 638 was not a “written contract” as the Legislature contemplated the term in the context of Code of Civil Procedure Section 638.

The Court suggested that a provision that allowed the association and the members to decide via an amendment to ratify a binding arbitration process would be enforceable.

Alternatively, the Court suggested that a CC&R clause providing that the failure of a homeowner association to amend the CC&Rs to eliminate a binding arbitration clause would amount to an acceptance of the provision and be enforceable. The Court further held that the provision requiring the parties to bear their own costs, including expert costs, added to the substantive unconscionability of the arbitration agreement.

The California Supreme Court has agreed to review this decision and will rule on the enforceability of arbitration clauses in covenants, conditions and restrictions.

6. Worldmark, The Club v. Wyndham Resort Development Corporation, 187 Cal.App. 4th 1017 (2010) A member of a California nonprofit mutual benefit corporation who owned vacation timeshare resorts demanded a right to inspect and copy membership records, including e-mail addresses of members, for the purpose of distributing a petition to amend the bylaws. The Superior Court denied the corporation’s motion to set aside the demand, finding that the corporation’s proposed alternative was not reasonable, and ordered the corporation to allow the member to inspect and copy its membership register, including the names, addresses, e-mail

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February 2011 | ECHO Journal

addresses, telephone numbers, and the voting rights of its members. The corporation had proposed the use of a third party mail house to send the petition by conventional mail as a “reasonable alternative� to the members’ demand under Corporations Code Section 8330(b) and (c) and 8331(a). The appellate court agreed with the trial court’s finding that the request for the information was for a proper purpose, and that the alternative proposed by the corporation, which would cost one dollar per member, resulted in an unreasonable cost of over $260,000.

The owner’s concerns were that (1) the board of directors was dominated by a certain group of executives; (2) the corporation failed to conduct meetings at which member motions could be raised and voted upon; (3) the absence of any independent owners on the board; and (4) the lack of meaningful member representation in the governance of the corporation.

The Court of Appeal ruled that the term “members’ addresses� in Corporations Code Section 8330(a)(1) that a corporation is required to disclose is sufficiently broad to encompass e-mail addresses in light of that section’s purpose and in light of related sections allowing a corporation to communicate with its members for the purpose of the corporation’s business.

It is presently unclear whether the holding in this case will apply to homeowner associations as the right of inspection and copying of records is specifically covered in Civil Code Section 1365.2. That section refers to the “mailing address� being available for inspection. But, homeowner associations that are incorporated are nonprofit mutual benefit corporations subject to Corporations Code Section 8330. Civil Code Section 1365.2(1) states that it supersedes Section 8330 “to the extent inconsistent.� Therefore, the issue of whether e-mail addresses maintained by the association are available for owners to inspect and copy is an open question.

7. Affan vs. Portofino Cove Homeowners Association, 189 Cal.App. 4th 930 (2010).

The Affans owned a first floor condominium that experienced nine sewer backups in a six-year span. The association acknowledged responsibility for maintenance and repair of the sewer line. When the homeowners sued the association and its management company for the cost of repair of the damaged unit, and for attorney’s fees, the association raised the defense that the board would not be

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liable under the doctrine of the Lamden, 21 Cal. 4th 249 (1999). In the Lamden case the Supreme Court ruled that courts should defer to the ordinary maintenance decisions of homeowner associations when the board, upon reasonable investigation, in good faith, and with regard for the best interests of the association and its members, exercises discretion within its scope of authority to select among the means for discharging its maintenance and repair obligations. In particular, Portofino Cove Homeowners Association stated that it had reasonably chosen to periodically clean the sewer pipe in question through a “hydrojet” procedure using a highpressure stream of water.

The Court of Appeal rejected the Lamden defense as to the management company because the Lamden only protects homeowner association and not their management agents.

As to the association, the Court found that the association failed to establish the factual requirements for the Lamden judicial deference because, over an extended period of time, the association ignored the sewer backup problem. Also, the association did not produce evidence that a decision had been made regarding a method of addressing the sewer backup. Rather the Court found that the evidence showed continuing indecision and inattention to the plumbing maintenance issues. The Court also found a lack of evidence that the association acted in good faith with regard to the best interests of the association and its members because no one testified about the board’s decision making process.

Associations are therefore cautioned to investigate promptly serious maintenance and repair issues, to obtain the advice of qualified experts, and to create a clear paper trail in the form of board minutes, confirming the considered basis for the selected method of repair.

8. Harrison vs. Sierra Dawn Estates Homeowners’ Association, Inc., 2010 Cal.App Unpub. LEXIS 4736 (2010) An owner of multiple units challenged the validity of the rental restriction in a CC&R amendment. The amendment was upheld by the Court of Appeal. The Court noted evidence from the association’s expert witnesses that owners tend to take better care of their property, are more compliant with the rules, and are more involved in community activities and that a high rental rate affects the willingness of mortgage lenders to make loans.

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February 2011 | ECHO Journal

The association’s witnesses included two attorneys, a property manager, the city housing and code enforcement manager, the city planning director, a former city administrator, and an expert on senior citizen developments.

While not available as a precedent, this case illustrates that care is required in the adoption of rental restrictions and in the legal strategy to enforce those restrictions, if they are challenged.

9. Villa Europa Homeowners Association vs. Superior Court, 2010 Cal.App. Unpub.

LEXIS 2926 (2010) This unpublished opinion concerned a member of a board of directors of a homeowner association who sued the association for water and mold damage to her condominium unit. She sought access to association records under Corporations Code Section 8334, which allows directors to have an absolute right of inspection and copying of all association books and records. The trial court allowed her such inspection, but before the court granted the petition, the board of directors voted to remove her as a board member (for failure to attend three consecutive board meetings in violation of the bylaws) and, furthermore, the association’s membership voted to recall all of the association’s board of directors, including the plaintiff. The trial court stayed the effect of the vote to remove the plaintiff as a director and to recall all the directors, pending the production of the documents she had requested.

The Court of Appeal found that the trial court exceeded its jurisdiction in staying the effect of the vote to recall the board of directors, and found that the recall vote rendered the plaintiff’s petition under Corporations Code Section 8334 moot, as her removal made her ineligible to review the association’s documents in her capacity as a director.

Although this case may not be cited as precedent, it is instructive in the strategies that an association may use when a director endeavors to abuse his or her authority for personal advantage.

Jeffrey A. Barnett is an association attorney with legal offices in San Jose. He is a past member of ECHO’s Board of Directors and a current member the Legal Resource Panel, the Legislative Committee and several regional resource panels.

ECHO Journal | February 2011

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By Christine E. Evans, PCAM

Understanding Your Community’s Financial Health in a Tough Economy hile it is always important to know where your community stands financially, it is especially important to understand the community’s financial status in an economy riddled with increasing expenses, higher delinquencies, and more bad debt write-offs. Following are several recommen-

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February 2011 | ECHO Journal

dations and standards for analyzing a community’s financial health: Recommendation 1: 2–3 months of expenses in your operating account(s) (liquid funds) at all times.

For example, if your community has a budget of $20,000 per month for operating

ECHO Journal | February 2011

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Understanding Your Financial Health Continued from page 16

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expenses, we would recommend that you have between $40,000 and $60,000 in an operating fund savings account. Doing so helps to ensure that the association can cover monthly expenses plus any unbudgeted expense that may arise, even factoring in assessments that are delinquent and not received. Boards should keep this in mind when considering investment opportunities.

Only funds in excess of two or three months of operating expenses should be considered for longer-term investments that commit the funds for months or years.

Not only is it important to support the reserve fund balance with actual cash in the reserve investment account, it is also important to review the reserve balance as it compares to the amount recommended by the association’s reserve study.

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February 2011 | ECHO Journal

Recommendation 2: Investments reflect the reserve fund balance.

Industry standard (and in some cases state law) encourages (or requires) communities to set aside part of the assessments in reserve funds, and further recommends (or requires) that a community segregate operating funds and reserve funds. Reserve funds should be invested in safe monetary vehicles like CDs and insured money market accounts. The total amount in those accounts should be the same amount that’s listed on the balance sheet for the reserve fund.

Recommendation 3: Reserves funded in accordance with the reserve study.

Not only is it important to support the reserve fund balance with actual cash in the

reserve investment account(s), it is also important to review the reserve balance as it compares to the amount recommended by the association’s reserve study. Special attention should be paid to this during budget preparation time. Rather than simply plugging in the recommended annual contribution number, an analysis should be done to determine the current projected year-end reserve balance and whether an adjustment to next year’s reserve contribution is warranted. For example, if the reserve study recommends a balance of $400,000 in the reserve funds at the end of fiscal year 2010 and it is determined that the actual balance at the end of FY 2010 is projected to be $300,000, a multi-year plan needs to be established to increase the reserve contribution to make up the $100,000 deficit. In some states, an annual or regular reserve study update is required; a comparison between actual and forecasted balances would be completed during that review. Similarly, if there are more funds in the reserve account than the reserve study recommends and all the recommended capital replacement projects have been per-

formed, the reserve contribution could be decreased.

Recommendation 4: 10–20% of the total annual assessment amount in is reflected in Prior Year Equity (this is a recommendation that auditors make so that the association has a “cushion” in the event of a major unanticipated event).

Prior Year Equity, which auditors frequently refer to as Operating Fund Ballots, is the accumulated operating deficit or surplus from the association’s inception. While the developer is funding the operating deficit, the Prior Year Equity balance is usually $0.

Once the developer is no longer funding the deficit and the association is self-sustaining, the association should work to achieve the 10–20% Prior Year Equity level. For example, if your community has budgeted $300,000 for the total annual assessment income, auditors recommend that the amount accumulated in Prior Year Equity be between $30,000 and $60,000. Auditors would note any amount lower than $30,000 as insufficient and any amount over $60,000 would be noted as excessive. The auditors feel that this gives the association excess funds to cover a

major unanticipated event not covered by insurance, such as plumbing lines that develop pinhole leaks, that would lead to a substantial operating deficit. The result could be not having adequate funds to replace or coat the plumbing lines. So, what happens if you aren’t adequately funded in Prior Year Equity? In future years’ budgets, the association should consider budgeting for an Operating Contingency (funds not earmarked for any specific expense) or should consider creating a line item specifically to fund Prior Year Equity in order to bring the balance into the 10–20% range.

Recommendation 5: Delinquency rate does not exceed 3–5% of the total annual assessment income.

Using the example above with a community that has budgeted $300,000 for the total annual assessment income, the total delinquent assessment amount should be less than $15,000 to be financially healthy. It is important that associations do everything possible to pursue collection of delinquent accounts aggressively, in accordance with applicable federal and state law, the association’s governing documents, and established collection ECHO Journal | February 2011

19

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policy. It is also important that the association, in accordance with the collections attorney, periodically review delinquent accounts and decide to write off accounts that are not collectible or where further collection effort is not cost-effective for the association, after the mortgage company foreclosed on the home. Many boards hesitate to write off uncollectible accounts, but often it is the wisest decision for the board to make.

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February 2011 | ECHO Journal

Recommendation 6: Establishment of an Allowance for Doubtful Accounts line item in the financial statements and budget.

The Allowance for Doubtful Accounts line item is what is referred to as a “contra-asset” and appears in the asset section of the balance sheet as a negative number (to counter the accounts receivable asset). The purpose of the Allowance for Doubtful Accounts is to reflect more accurately the association’s financial position. Without the Allowance, the association’s balance sheet would show the entire delinquent amount as a collectible asset. The Allowance for Doubtful Accounts posts as a negative number to “decrease” the accounts receivable number to more accurately reflect the association’s assets. Prior to each fiscal year end, associations should

review their delinquencies and determine the amount to enter in the Allowance category. There are many different ways to calculate the amount, so talk with your managing agent and association auditor to determine the right number for your association.

The purpose of the Allowance for Doubtful Accounts line item in the asset section of the balance sheet, referred to as a “contra-asset,” is to reflect more accurately the association’s financial position.

When drafting the annual budget in years when assessment delinquencies are high, creating a line item for Allowance for Doubtful Accounts (also known as Bad Debt Write-off) will provide a better understanding of what the maintenance fees should be. For example, if the budget indicates that the association must collect $100,000 to pay all expenses and transfer the appropriate amount to a reserve account but it’s estimated that 20% of the owners will not pay, create a separate Allowance for Doubtful Accounts expense line item reflecting a $20,000 uncollectable amount. By creating this line item, calculating total income and expenses will show that the association must collect $120,000 in order to ensure that they have the $100,000 necessary to pay the budgeted expenses.

Operating fees calculation would be based on $120,000.

Christine Evans is a regional vice president with Associa Management. This article was previously published in Association Times, a publication from Associa.

ECHO Journal | February 2011

21

By Teresa Powell and Brian Seifert

Planning and Paying for Major Reconstruction Road Map to Financing and Project Launch his article describes the road to the successful financing and launch of that much needed construction project. There are two keys to success:

T

1. A good preliminary financial analysis utilizing a professional detailed reserve study to determine what viable financing options are available to your association.

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February 2011 | ECHO Journal

2. An in-depth project analysis with detailed specifications and drawings.

These two fundamentals will result in a successful project and the financing to support it. In order to put all the steps into perspective: we have created a project timeline (see page 24) that reflects those key milestones that make up your plan and then overlaid the timeline with sample

months. There are many pieces to the plan that can be run on parallel tracks; surround your association with a great team of experts dedicated to the HOA industry; (1) Manager, (2) Banker, (3) Construction Manager (4) Attorney and (5) Reserve Study professional.

Continued on page 24

ECHO Journal | February 2011

23

SEPT 1st

NOV 1st

MAR 1st

"

Major Reconstruction Continued from page 22

Reserve Study This document is an important component not only for the financing of your project, but also an incredibly useful tool for the association to understand its future needs for maintaining the property. A full study is required once every three years, and it should be reviewed annually for three years thereafter [Civil Code 1365.5 (e)]. A bank will need a current reserve study to assess whether or not the association will be able to repay a loan, continue funding future needs including reserves, and pay planned expenses throughout the term of the loan.

The bank will assess the quality of the study and the professional that prepared it. This key component adds time to the process; two to four weeks for an annual review or update of a study more than one year old or 6–8 weeks for a new study if your current one is older than three years or if you’ve never had one completed in the past. It is a critical and required component to financing, so be prepared.

Here are some questions to ask: • What components in the study are included in the planned project?

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February 2011 | ECHO Journal

MAY 1st

!

• Will there be any other components to be worked on during the life of the loan?

• Should they be bundled with the current project?

• What other expenses will there be during the life of the loan?

• Will work on other components need to be delayed during the life of the loan?

Preparing the Project The construction manager (CM) chosen by the association will perform three major tasks in preparing for the reconstruction project: 1. Perform a site review 2. Create a specification 3. Request bids Each of these tasks is a necessary component in creating a successful project and each takes time to complete. Plan on about two weeks for the site review and another two weeks to prepare a specification. The bidding process, including delivering the specification to the contractors and receiving them back in bid form, will take 3 to 4 weeks.

The initial site review by the construction manager will determine what is required. If we use roofing as an example, the CM must determine whether the roofs require replacement or if they can be repaired. Perhaps the sloped roofs can be repaired but the flats roofs require replacement. This will help

determine the extent of work and the details required. If the determination is a new roof, what other components may be involved, such as siding where the roof terminates, fascia board, sheet metal and other components? All construction projects, whether major or not, require good details from the specification. The juxtaposition of different construction components often causes unique and challenging issues for other elements of the project such as sound waterproofing.

Once the site review is complete, the construction manager will compile the specification. The “spec” (as it is often called) includes a variety of subjects designed not only to inform the contractor how to build the project but also includes items for the safety and protection of the HOA such as insurance requirements, mandatory safety while the contractor is on site, payment and retention as well as storage and sanitation facilities. Additionally, it will outline change order limits in the form of line item costs and allowable mark ups. The spec will contain drawings with detailed information describing the method and materials required to perform the construction, particularly in the difficult detail areas where construction components collide.

The Reserve Study is important not only for financing, but is also an incredibly useful tool for the association to understand its future needs for maintaining the property.

With the specification complete, the construction manager will choose qualified contractors to bid the work. Not just any contractor can work on common interest developments. The contractor must be properly insured and must have experience working on major construction projects in occupied dwellings, particularly HOAs, and be financially stable enough to carry a large construction project with a payment schedule.

The contractors will perform their own site

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Roger Pollard, President visit, usually with the construction manager, to get a feel for the project, better understand the details and take measurements.

From this information, the contractors will fill out the bid form and submit their quotes to the construction manager by a pre-determined deadline. The construction manager will review and compile all of the information received from the contractors in a summary spreadsheet that is provided to the association board for their review. The board, in consultation with the CM and manager, in turn chooses the contractor to perform the work.

Loan Application Preliminary Financial Assessment A preliminary financial assessment will be completed by your bank to aid in the determination of your repayment source— whether it can be from current cash flow, a combination of current reserves and current cash flow, or whether a partial special assessment or a full special assessment is needed.

This will prove helpful as you explore your options and build your plan. Your bank should be your consultant throughout the process. This process will take 4–6 weeks. To conduct this preliminary assessment, the bank will look closely at the following items:

Monthly Assessment: assessments are the primary source of repayment for the loan and are critical to the cash flow analysis. If the current assessment stream is not sufficient to cover the loan payment plus continue to reserve and cover operating expenses, then some special assessment may be needed to qualify for the loan.

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Rentals: the lower the percentage of rental units on the property, the less risk there is for interruption of the repayment source. The theory being that there is more commitment if a unit is owner occupied. The other is the ability to keep the unit rented. A rental percentage higher than 25–30% would be thought to reflect additional risk.

Foreclosures: these pose a serious impediment to assessments and would be included in the delinquency percentage that a bank would review.

Project Amount: by this time, you should have a good idea of the price tag of the project. It, along with a contingency amount, should provide a number for your bank to conduct its analysis. Banks will generally finance only a portion of the entire project.

Association Profile

Association Management: an experienced, reputable, professional manager with credentials is an extremely positive influence and will be a critical member of the team that will ensure a smooth and successful process.

Association Size: the larger the size of the association, the less concentration in the repayment source for the loan, which come from the monthly assessments.

Financial Documents: current year budget along with quality CPA-prepared financial statements will reflect the cash flow of the association.

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Reserve Study: a quality study, prepared by a reputable, experienced company, will be used to ensure that future major expenses are accounted for.

Accounts Receivable Aging: delinquencies are an important consideration for banks.

Remember that the cash flow of the association is the primary repayment source for the bank loan! Banks will look closely at your historical account receivables and collection policy to ensure there is not a consistent high level of delinquencies and that you are diligent with your collection efforts. Generally, banks look for delinquencies to be maintained below the 5–10% range. Here are two important tips about your monthly account receivable reports: • Keep your accounts clean. Remove old fines, interest charges and other fees that drive up your delinquency percentage and move them to your “bad debt” account and off the report. Banks will look at your bad debt line on your financial statement to ensure it is not excessive, but these small or uncollectable delinquencies belong there, not on your account receivable reports.

• As soon as there is a new owner, whether it is a new resident or a bank, beginning to pay assessments, move the uncollectable delinquent balance to “bad debt.”

Proposal At the end of the preliminary financial analysis, the bank will provide you with a proposal. The loan is considered an unsecured commercial loan to the association; it is not a loan to the homeowners. There are no liens placed on individual homeowner units. As mentioned above, banks will generally finance 70–75% of your project costs. In addition to the amount they will finance, most banks will have the following elements in their proposals to you: Draw Period: 6–18 months for construction period of project Term Period: 1–15 years Interest Rate: Either fixed or variable interest rates are available Fixed Rate: 6-8% (at the current time) Variable Rate: Bank’s reference rate plus 1.5–3% Application Fee: $0–$3,000, generally refunded if the loan is declined Loan Fee: 1–2% of loan commitment Prepayment Fee: Generally none on variable rate loans, but there may be a fee on a fixed rate loan 26

February 2011 | ECHO Journal

NOTICE TO PROCEED Date:

August 25, 2010

Project:

Homeowner Association

Contractor(s): XYZ Construction, Inc. - Roofing XYZ Construction Inc.

Contractor: You are hereby given notice to proceed with the construction project described in the Owner and Contractor Agreement dated July 1, 2010.

It is understood the contract for such work has been endorsed and Contractor shall not need a permit for this work.

Moblilization may begin within two weeks of issuing start notice. No active construction shall begin until the following documents are received in my office:

Final budget from construction manager Governing documents Articles of Incorporation CC&Rs Bylaws Other information Board minutes Board member listing Homeowner listing Loan approval and documentation will take two to three weeks, and then, you are ready to begin!

Project Launch Many tasks are required prior to the project launch including signing the contract by both the HOA and the contractor, a Notice to Proceed, preconstruction site review, color choices and final schedule. These tasks are time consuming and involve a lot of different people arranging their schedules. Allow a good 4 to 6 weeks to complete everything needed to actually start the project. If attorneys are required, double this time frame.

Often boards require more than one member to sign contracts of major expense.

This will require getting both parties to sign the contract before it is returned to the construction manager. The construction manager will then contact the chosen contractor to also sign the contract to fully execute the document. Copies are returned to each party and a Notice to Proceed is issued to the contractor.

The Notice to Proceed is an official document telling the contractor he is to start the project and what is required prior to job start. The contractor will have to provide a copy of his current state contractor license with proper designation for the work to perform (e.g. roofing requires a C-39 license), a current certificate of insurance showing the required coverage, a preliminary schedule, a site map with possible construction yard locations and an emergency contact list naming the project manger and the superintendent in charge of the project as well as 24-hour contacts for emergencies.

The construction manager will now schedule a preconstruction site visit to discuss the details of the project. The construction yard

1. Copy of Contractor’s license (8 ½ x 11) 2. Certificate of Insurance with additional insureds, Homeowner Association and Construction Manager 3. Location of start-up building 4. Preliminary Schedule 5. Emergency phone number (24 hour response) 6. Name and phone number for project manager and superintendent Additional documents required after mobilization and start-up 1. Final schedule 2. List of subcontractors 3. List of suppliers

These rates and fees change frequently and by bank; check with your bank for its current loan pricing. This provides you with a good sense of all the elements that will be part of a loan.

Formal Approval A vote of the membership is generally required if a special assessment is needed or to obtain approval for a loan; check your governing documents. If so, once you have the bank’s proposal in hand, with the aid of your attorney, you will be able to develop and articulate the special assessment and/or bank financing in the official ballot. As soon as membership approval is secured, the bank will proceed with formal approval. The association will trigger this by accepting the proposal and returning it to the bank. The remaining documentation and information required may include: Additional Financial Information Tax Returns Bank Statements Name of all Contractors selected, plus Contract Contractor’s license Proof of Workers Compensation Proof of General Liability Insurance Approved ballot and opinion letter from counsel

ECHO Journal | February 2011

27

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EXISTING ROOF SHEATHING NEW 2X6 NEW SAM—minimum 9inch strip

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February 2011 | ECHO Journal

location will be chosen determining which location minimizes impact on the residents.

Each building will be reviewed to determine access and equipment set up, for instance, debris chutes to contain the old material when removed and transported to a disposal vehicle or scaffold locations. How the work flow will affect the ingress and egress of the occupants during the day will be taken into consideration to minimize the impact. What impact will the construction have on existing landscape? Construction workers’ personal vehicle parking will be reviewed. Often the complex will not have sufficient parking to accommodate the construction technicians’ vehicles. The preliminary schedule will be reviewed to determine what building order the work should proceed. This is often determined by the buildings with the greatest needs. The safety of the occupants and workers during construction will be carefully considered. The final schedule will be discussed and the specification and details reviewed prior to the project launch.

Choosing colors can often be the most time consuming portion of the project.

Again, using roofing as an example, not only

does the roof color have to be chosen, but also gutter, downspout and edge metal colors. This often requires visits to other complexes to get a feel for the colors being chosen. Typically the more people involved with color selection, the longer it takes. On one occasion it took an association 18 months to finalize colors, and in that time they experienced two increases in material prices.

Imagine choosing multiple paint color schemes!

At this point a project is ready to start. Be aware that planning a major reconstruction project is a timely endeavor. For best results it is wise to start the process in the fall and plan on a spring start to take advantage of dry weather. This schedule will allow enough time for both the planning portion of the project and securing the necessary funding.

Teresa Powell is the senior vice president in charge of community association business at Focus Business Bank in San Jose. Brian Seifert is a senior construction manager at Cox Associates in Scotts Valley. Brian is the chair of the ECHO Maintenance Resource Panel.

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29

By Burt Dean

Transparency in Towing Vehicle Owners Rights and Responsibilities ssembly Bill 519 (Solorio), “Towing Fees and Access Notice,” was signed into law by Governor Schwarzenegger on September 30, 2010 with an effective date of January 1, 2011. This act amends Civil Code Section 3068.1 and adds Section 22651.07 to the Vehicle Code.

A

This bill establishes and requires a person that charges for towing or storage, or both, to post a specified copy of “Towing Fees and Access Notice” that contains specific information regarding a vehicle owner’s rights and responsibilities if his or her vehicle is towed, and requires, among other things, that it be posted in the office area of the storage facility in plain view of the public, with exceptions, and also 30

February 2011 | ECHO Journal

requires that copies be made readily available to the public.

The bill requires a person that charges for towing or storage, or both, to provide, upon request, a copy of the Towing Fees and Access Notice to any owner or operator of a towed or stored vehicle and requires the person to provide an itemized invoice for any towing and storage charges. The bill also provides that a registered automotive repair dealer that did not provide the tow and that passes along, from the tower to the consumer, any of the information required on the itemized invoice is not responsible for the accuracy of those items of information that remain unaltered.

The bill further provides that a person who violates these provisions is civilly liable

to a registered or legal owner of the vehicle, or a registered owner’s insurer, for up to two times the amount charged, not to exceed $500 per vehicle.

The box on page 31 contains the exact language that the state requires to be posted in the tow company office area and made available upon request.

Has your association yet determined whether your towing vendor now complies with this simple requirement?

Burt Dean is the owner of Rebello’s Towing Service. Previously he owned a management company. His companies have been ECHO members for many years.

Towing Fees and Access Notice Note: The following information is intended to serve as a general summary of some of the laws that provide vehicle owners certain rights when their vehicle is towed. It is not intended to summarize all of the laws that may be applicable, nor is it intended to fully and completely state the entire law in any area listed. Please review the applicable California code for a definitive statement of the law in your particular situation.

How much can a towing company charge?

1) Rates for public tows and storage are generally established by an agreement between the law enforcement agency requesting the tow and the towing company (to confirm the approved rates, you may contact the law enforcement agency that initiated the tow; additionally, these rates are required to be posted at the storage facility).

2) Rates for private property tows and storage cannot exceed the approved rates for the law enforcement agency that has primary jurisdiction for the property from which the vehicle was removed or the towing company’s approved CHP rate.

3) Rates for owner’s request tows and storage are generally established by mutual agreement between the requestor and the towing company, but may be dictated by agreements established between the requestor’s motor club and motor club service provider.

Where can you complain about a towing company?

For public tows: Contact the law enforcement agency initiating the tow.

Your rights if your vehicle is towed: Generally, prior to paying any towing and storage-related fees you have the right to: A) Receive an itemized invoice of actual charges.

B) Receive your personal property, at no charge, during normal business hours.

C) Retrieve your vehicle during the first 72 hours of storage and not pay a lien fee.

D) Request a copy of the Towing Fees and Access Notice.

E) Pay by cash or valid bank credit card.

F) Inspect your vehicle or have your insurance carrier inspect your vehicle at the storage facility, at no charge, during normal business hours.

G) You have the right to have the vehicle released to you upon: (1) payment of all towing and storage-related fees, (2) presentation of a valid photo identification, (3) presentation of reliable documentation showing that you are the owner of the vehicle or that the owner has authorized you to take possession of the vehicle, and (4), if applicable, presentation of any required police or law enforcement release documents.

Prior to your vehicle being repaired: A) You have the right to choose the repair facility and to have no repairs made to your vehicle unless you authorize them in writing.

B) Any authorization you sign for towing and any authorization you sign for repair must be on separate forms.

What if I do not pay the towing and storage-related fees or abandon my vehicle at the towing company?

Pursuant to Sections 3068.1 to 3074, inclusive, of the Civil Code, a towing company may sell your vehicle and any moneys received will be applied to towing and storage-related fees that have accumulated against your vehicle.

You are responsible for paying the towing company any outstanding balance due on any of these fees once the sale is complete.

Who is liable if my vehicle was damaged during towing or storage?

Generally, the owner of a vehicle may recover for any damage to the vehicle resulting from any intentional or negligent act of a person causing the removal of, or removing, the vehicle.

What happens if a towing company violates the law?

If a tow company does not satisfactorily meet certain requirements detailed in this notice, you may bring a lawsuit in court, generally in small claims court. The tower may be civilly liable for damages up to two times the amount charged, not to exceed $500, and possibly more for certain violations.

ECHO Journal | February 2011

31

News from ECHO An Important Court Case: Pinnacle Museum Tower Association v. Pinnacle Market Development (US), LLC.

Understanding Your HOA’s Financial Position in a Tough Economy While it is always important to know where your community stands financially, it is especially important to understand the community’s financial status in an economy riddled with increasing expenses, higher delinquencies, and more bad debt writeoffs. Following are several recommendations and standards for analyzing a community’s financial health: • 2–3 months of expenses in your operating account(s) (i.e., liquid funds) at all times.

• Investments reflect the reserve fund balance.

• Reserves are funded in accordance with the reserve study.

• 10–20% of the total annual assessment amount is reflected in Operating Fund Ballots.

• Delinquency rate does not exceed 3 to 5% of the total annual assessment income.

• An “Allowance for Doubtful Accounts” line item is included in the financial statements and budget.

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February 2011 | ECHO Journal

This homeowner association filed a construction defect action against the developer of the condominium project for itself, and as a representative of its members, for damage to common areas, to property owned by the association, and to property owned by individual members.

The Court of Appeal concluded that an arbitration provision in the CC&Rs recorded by the developer of the condominium project was not an “agreement” sufficient to waive the constitutional right of jury trial for construction defect claims brought by the homeowner association.

The CC&Rs purported to prohibit amendment by the association without the written consent of the developer. The Court further held that the jury waiver provision in the purchase and sale agreements signed by the members of the association was not enforceable, and therefore neither the homeowners nor the association were bound by it.

The Court suggested that a provision that allowed the association and the members to decide via an amendment to ratify a binding arbitration process would be enforceable. Alternatively, the Court suggested that a CC&R clause providing that the failure of a homeowner association to amend the CC&Rs to eliminate a binding arbitration clause would amount to an acceptance of the provision and be enforceable. The Court further held that the provision requiring the parties to bear

their own costs, including expert costs, added to the substantive unconscionability of the arbitration agreement.

The California Supreme Court has agreed to review this decision and will rule on the enforceability of arbitration clauses in covenants, conditions and restrictions. ECHO will report results of the Supreme Court review.

Transparency in Towing Assembly Bill 519 (Solorio), “Towing Fees and Access Notice,” was signed into law by Governor Schwarzenegger on September 30, 2010 with an effective date of January 1, 2011.

This act amends Civil Code Section 3068.1 and adds Section 22651.07 to the Vehicle Code.

This new law requires an entity that charges for towing or storage, or both, to post a copy of a statutized “Towing Fees and Access Notice” that contains specific information regarding a vehicle owner’s rights and responsibilities if his or her vehicle is towed, and requires, among other things, that it be posted in the office area of the storage facility in plain view of the public, with exceptions, and also requires that copies be made readily available to the public.

The bill requires a person that charges for towing or storage, or

both, to provide, upon request, a copy of the Towing Fees and Access Notice to any owner or operator of a towed or stored vehicle and requires the person to provide an itemized invoice for any towing and storage charges. The bill also provides that a registered automotive repair dealer that did not provide the tow and that passes along, from the tower to the consumer, any of the information required on the itemized invoice is not responsible for the accuracy of those items of information that remain unaltered.

The bill further provides that a person who violates these provisions is civilly liable to a registered or legal owner of the vehicle, or a registered owner’s insurer, for up to two times the amount charged, not to exceed $500 per vehicle.

Has your association yet determined whether your towing vendor now complies with this simple requirement?

Important Upcoming Events Saturday, March 5 Central Coast Winter Seminar Hilton Santa Cruz, Scotts Valley Thursday, March 17 San Francisco Luncheon St. Francis Yacht Club, San Francisco Saturday, March 19 Wine Country Winter Seminar Sally Tomatoes 1100 Valley House Dr., Rohnert Park Saturday, April 16 South Bay Seminar Campbell Community Center 1 W. Campbell Ave., Campbell

Preparing Boards for 2011 Don’t miss this opportunity to prepare you and your board for the 2011 economic and legal climate.

Yes, reserve ___ spaces for the Central Coast Seminar.

Amount enclosed: $__________ (attach additional names) Name: ______________________________________________________

See the ECHO flyer for details of the Seminar Agenda.

HOA or Firm: ________________________________________________ Address: ____________________________________________________ City: __________________________ State: _____ Zip: ____________

Central Coast Seminar

Phone: ______________________________________________________

Saturday, March 5, 2011

Visa/Mastercard No. _____________________ Exp. Date: ________

8:00 a.m. to 1:00 p.m.

Hilton Hotel 6001 La Madrona Drive, Scotts Valley

Registration Fee: $45 Members $55 Non-Members

Signature: ___________________________________________________ Orders will not be processed without payment in full. Fees for cancelled registrations will not be refunded. Return with payment to: ECHO, 1602 The Alameda, STE 101, San Jose, CA 95126 Telephone: 408-297-3246; Fax: 408-297-3517

Directory UPDATES Updates for listings in the ECHO Directory of Businesses and Professionals, now available online at www.echo-ca.org.

Additions to Member Listings

6 6(59,1* &20081,7,(6 7+528*+287 1257+(51 &$/,)251,$ 672&.721 +4 ‡ )5(0217 (59,1* &20081,7,(6 7+528*+287 1257+(51 &$/,)251,$ 672&.721 +4 ‡ )5(0217 PLE PLEASANTON ‡ &233(5232/,6 ‡ 02'(672 ‡ 6$17$ &/$5$ ASANTON ‡ &233(5232/,6 ‡ 02'(672 ‡ 6$17$ &/$5$

M & C Association Management Services provides community association management and developer services to Fremont, Pleasanton, Santa Clara, Stockton, Modesto, Copperopolis and the surrounding foothills.

Since 1990, our sole focus has been to deliver performance that enriches communities and enhances the lives of the people we serve. M & C is proud to be an Accredited Association Management CompanyŽ (AAMCŽ), which is the Community Associations Institute’s highest GHVLJQDWLRQ DZDUGHG WR PDQDJHPHQW ÀUPV

3 3OHDVDQWRQ ‡ )UHPRQW ‡ 6DQWD &ODUD OHDVDQWRQ ‡ )UHPRQW ‡ 6DQWD &ODUD S Stockton tockton 209.644.4900 209.644.4900 ‡ ‡ 0RGHVWR ‡ &RSSHURSROLV 0RGHVWR ‡ &RSSHURSROLV For management proposal information, please visit www w.mccommunities.com or email inffo@mccommunities.com 34

February 2011 | ECHO Journal

Baylands Landscape Management 835 Mathew Street Santa Clara, CA 95050 Contact: Ruben Oseguera Tel: 408-440-1531 Fax: 408-440-1656 www.baylandslandscape.com Email: ruben@baylandslandscape.com Baylands enhances and maintains the appearance of our customers’ properties through our comprehensive landscape maintenance programs. In addition to our routine landscape maintenance, Baylands provides integrated pest management, water management, sustainable landscape practices and much more.

Sorenson & Associates Roofing, Inc. P. O. Box 786 Brentwood, CA 94513 Contact: Larry Sorenson Tel: 925-626-7682 Fax: 925-626-7584 www.sorensonroofing.com Email: larry@sorensonroofing.com We are a roofing company that specializes in both steep and low-slope re-roofing applications for multi-family occupied dwellings; i.e., HOAs, townhomes and apartments.

Changes to Member Listings Aune & Associates One Maritime Plaza, # 1600 San Francisco, CA 94111 Contact: Robert E. Aune, Esq. Tel: 415-433-6400 Fax: 415-651-9825 www.auneassociates.com Email: raune@auneassociates.com Daniel W. Davis Insurance Solutions, LLC 6472 Camden Ave., # 112 San Jose, CA 95120 Contact: Dan Davis Tel: 408-600-3100, ext. 2208 Email: dan@dandavisins.com Signature Painting & Construction, Inc. Name change only—everything else remains the same.

ECHO Journal | February 2011

35

n ditio E 1 e l 201vailab A

2008 ECHO Business & Professional Directory $20.00 Non-Member Price: $25.00

Condominium Bluebook 2011 Edition $18.00 Non-Member Price: $25.00

Condos, Townhomes and Homeowner Associations $29.00 Non-Member Price: $45.00

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 develop ments 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.

To make it these a sustainable investment, new buyers, owners and board members need to understand “best practices basics” of how this form of housing works and have more realistic expectations of this form of “carefree, maintenance free” living.

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.

Community Association Statute Book—2011 Edition $15.00 Non-Member Price: $25.00 Contains the 2010 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, Govern ment and Vehicle Codes important to associations.

New e Pric

Homeowners Associations— How-to Guide for Leadership New Member Price: $15.00 Non-Member Price: $25.00 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.

California Building Guidelines for Residential Construction $52.50 Non-Member Price: $60.00 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.

Be an HOA Survivor

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.

2010 ECHO Annual Seminar Program

The Condo Owner’s Answer Book $15.00 Non-Member Price: $20.00 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.

This Program Book is suppor ted through a generous sponsorship from Management Solutions.

2010 ECHO Annual Seminar Program Book $35.00 Non-Member Price: $45.00 This 300+ page reference book contains the presentation outlines, text and handouts from the sessions at the 2010 ECHO Annual Seminar held on June 19, 2010. It also contains vital information for association directors, such as assessment collection policies, internal dispute policies, and much more.

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 www.echo-ca.org

Bookstore Order Form Board Member’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 Member’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

ECHO Events Calendar

Important events to remember Wednesday, February 2 Maintenance Resource Panel 12:00 Noon ECHO Office 1602 The Alameda, Ste. 101 San Jose

Saturday, March 5 Central Coast Winter Seminar 8:00 a.m. to 1:00 p.m.

Hilton Santa Cruz 6001 La Madrona Dr., Santa Cruz

Saturday, March 19 Wine Country Winter Seminar 8:00 a.m. to 1:00 p.m.

Sally Tomatoes 1100 Valley House Dr., Rohnert Park

Saturday, February 5 Marin County Seminar 8:00 a.m. to 1:00 p.m.

Embassy Suites, 101 McInnis Pkwy., San Rafael

Tuesday, March 8 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz

Wednesday, April 6 Maintenance Resource Panel 12:00 Noon ECHO Office 1602 The Alameda, Ste. 101, San Jose

Wednesday, February 9 South Bay Resource Panel 12:00 Noon Il Fornaio 302 S. Market St., San Jose Friday February 11 East Bay Resource Panel 11:30 a.m.

Massimo Restaurant 1604 Locust St., Walnut Creek Wednesday, February 16 Wine Country Resource Panel 11:45 a.m.

Eugene Burger Mgmt. Co. 6600 Hunter Dr.,Rohnert Park Thursday, March 3 North Bay Resource Panel 11:45 a.m.

Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael

Friday, March 11 East Bay Resource Panel 9:30 a.m.

Massimo Restaurant 1604 Locust St., Walnut Creek Monday, March 14 Accountants Resource Panel 6:00 p.m.

Francesco’s Restaurant Oakland Wednesday, March 16 Wine Country Resource Panel 11:45 a.m.

Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park Thursday, March 17 San Francisco Luncheon 11:45 a.m. to 2:00 p.m.

St. Francis Yacht Club, San Francisco

Friday and Saturday June 17 & 18, 2011 ECHO Annual Seminar Santa Clara Convention Center Santa Clara

Friday, April 8 East Bay Resource Panel 9:30 a.m.

Massimo Restaurant 1604 Locust St., Walnut Creek Wednesday, April 13 South Bay Resource Panel 12:00 Noon Il Fornaio 302 S. Market St., San Jose Saturday, April 16 South Bay Seminar 8:00 a.m. to 1:00 p.m.

Campbell Community Center 1 W. Campbell Ave., Campbell Wednesday, April 20 Wine Country Resource Panel 11:45 a.m.

Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park

Regularly Scheduled ECHO Resource Panel Meetings Resource Panel Maintenance North Bay East Bay Accountants Central Coast South Bay Wine Country Legal 38

February 2011 | 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 Massimo Restaurant, Walnut Creek Francesco’s Restaurant, Oakland Pasatiempo Inn, Santa Cruz Il Fornaio, San Jose Eugene Burger Management Co., Rohnert Park Varies

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.

ECHO Honor Roll

About

ECHO Honors Volunteers Diane Kay 2010 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, 650-543-5619 Beth Grimm, 925-746-7177 Legal Panel Mark Wleklinski, Esq. 925-280-1191 Maintenance Panel Brian Seifert, 831-708-2916 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 Toni Rodrigues, 408-848-8118 Kimberly Payne, 408-200-8730 Wine Country Panel Maria Birch, CCAM, 707-584-5123

Legislative Committee Paul Atkins Jeffrey Barnett, Esq. Sandra Bonato, Esq. Jerry Bowles Joelyn Carr-Fingerle, CPA John Garvic, Esq., Chair Geri Kennedy, CCAM Wanden Treanor, Esq.

40

February 2011 | ECHO Journal

SF Luncheon Speakers John Allanson Jeffrey Barnett, Esq. Tyler Berding, Esq. Ronald Block, PhD. Wendy Buller 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 Sandra Gottlieb, Esq. Beth Grimm, Esq. Brian Hebert, Esq. Roy Helsing Stephen Johnson, CFP Julia Lave Johnston Garth Leone Nico March Kerry Mazzoni Thomas Miller, Esq. Larry Pothast Larry Russell, Esq. Steve Saarman Jim Shepherd Nathaniel Sterling, Esq. Debra Warren, PCAM, CCAM Steven Weil, Esq. Mark Wleklinski, Esq. Glenn Youngling, Esq.

Seminar Speakers April 17, 2010 South Bay Spring Seminar Tyler Berding, Esq. Sandra Bonato, Esq. John Garvic, Esq. Robert P. Hall, Esq. Geri Kennedy, CCAM Jan A. Kopczynski, Esq.

Kurtis Shenefiel, PCAM, CCAM Richard Tippett September 25, 2010 Central Coast Fall Seminar John Allanson Beverlee Gordon Stephanie Hayes, Esq. Teresa Powell Brian Seifert Steve Weil, Esq October 23, 2010 Peninsula Fall Seminar Jeffrey A. Barnett, Esq. Tom Fier, Esq. Linnea Juarez, PCAM, CCAM Paul Windust, Esq.

Recent ECHO Journal Contributing Authors November 2010 Sandra M. Bonato, Esq. Patti Jo Lewis, PCAM Katharine Rosenberry, Esq. Richard Tippett Steven S. Weil, Esq. Paul W. Windust, Esq. December 2010 Gerald Bowden, Esq. Joelyn K. Carr-Fingerle, CPA Timothy Cline Beth A. Grimm, Esq. Geri Kennedy, CCAM January 2011 Janet O. Aronson, Esq. Jeffrey A. Barnett, Esq. Marilyn Lincoln Jesse R. Mattson, Esq. Deon R. Stein, Esq. Steven S. Weil, Esq.

ECHO 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 1,450 homeowner associations, you can become an associate member and join 350 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 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.

ECHO Marketplace

Advertiser Index

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Advertise your business to thousands of association directors in California in the ECHO Journal.

Ace Property Management . . . . . . . .13 American Asphalt . . . . . . . . . . . . . .26 American Management Services . . . .8 Angius & Terry . . . . . . . . . . . . . . . . .3 A.S.A.P. Collection Services . . . . . . .18 Association Reserves . . . . . . . . . . .20 Berding | Weil . . . . . . . . . . . . . . . . .44 Collins Management . . . . . . . . . . . .13 Common Interest Mgmnt Services . . .9 Common Interest Mgmnt Services . .19 Community Management Services . .10 Compass Management . . . . . . . . . .11 Cool Pool Service . . . . . . . . . . . . . .14 Cornerstone Community Mgmnt . . . .14 Draeger . . . . . . . . . . . . . . . . . . . . .11 Ekim Painting . . . . . . . . . . . . . . . . .21 First Bank Association Bank Srvcs . .35 Flores Painting . . . . . . . . . . . . . . . .34 Focus Business Bank . . . . . . . . . . . .8 Gachina Landscaping . . . . . . . . . . .27 Hill & Company . . . . . . . . . . . . . . . .21 M & C Association Services . . . . . . .34 M. L. Nielsen Construction . . . . . . .26 Massingham and Associates . . . . . .20 Mutual of Omaha Bank . . . . . . . . . .12 Pelican Management Group . . . . . . .14 PML Management Corp. . . . . . . . . .12 Pollard Unlimited . . . . . . . . . . . . . .25 R. E. Broocker Co. . . . . . . . . . . . . .13 Real Estate Property Mgmnt. . . . . . .35 Rebello’s Towing Service . . . . . . . . .29 REMI Company . . . . . . . . . . . . . . . .15 Saarman Construction . . . . . . . . . .18 Scuba Pool Repair . . . . . . . . . . . . .10 Statcomm . . . . . . . . . . . . . . . . . . .25 Steve’s Painting Services . . . . . . . .15 Varsity Painting . . . . . . . . . . . . . . . .28

ECHO Journal | February 2011

41

How to make your investment safer Condos, townhomes, homeowner associations and other “shared expenses” housing is the wave of the future in the United States and around the world. But to make it a sustainable investment, new buyers, owners and volunteer board members need to understand “best practices basics” of how this form of housing works and have more realistic expectations of this form of “carefree, maintenance free” living.

The new book, Condos, Townhomes, Home Owner Associations—How to Make Your Investment Safer, provides essential training and checklists for • Association Board Members • Owners in Associations • Prospective Buyers of Association Property The book answers vital questions that can help to keep your association from financial ruin: • What overview training should board members have before beginning their service?

• What critical financial and mechanical information should board members track each month?

• What information should a buyer look for before buying in an association?

The author provides lessons that help you to: • Protect property values • Gain peace of mind • Lessen the need for large, unexpected special assessments Patrick Hohman, author of the book and a 22-year association president, compiled these userfriendly, colorful lessons with the help of industry experts throughout the United States.

The paperback, Condos, Townhomes, Home Owner Associations—How to Make Your Investment Safer, is now available from ECHO for only $29 for members and $45 for nonmembers. Order today by calling (408) 297-3246 or order online at www.echo-ca.org.

Avoid Making Costly Mistakes in Your Association Seminar Agenda Leading Your Association Well in 2011 8:00 Registration and Continental Breakfast

Wine Country Seminar Saturday, March 19, 2011 8:00 a.m. to 1:00 p.m.

8:45 Welcome—Oliver Burford, ECHO Executive Director 9:00 2010 Legislative Update—Barbara Zimmerman, Esq. Learn about the new laws affecting associations in 2010. In addition, learn what legislation may be coming down the pipe.

9:30 Keeping the Coffers Full—Zeke Ortiz, Marizco Landscaping; Darryl Orr, Pacific Landscapes Reducing Landscape Costs—Zeke and Darryl offer hip tips on how to reduce your association’s landscape costs.

10:15 Break 10:45 Enforcing Governing Docs—Bill Gillis, Esq. Iron Fist or Velvet Gloves?—No, you can’t just “lock ‘em up.” Is one method better than the other? Is there a middle ground? Bill will highlight the pros and cons of different approaches, preparing you to adopt the most effective policy for your association.

11:45 The ‘One Hour’ Board Meeting—Carra Clampitt, CACM It’s not a myth—Yes it can be accomplished! Learn how to orchestrate or participate in an effective, efficient and productive board meeting. You'll leave with tips on how this can be a reality for your board.

12:15 Round Table Discussions Meet the experts face-to-face—Your chance to get free advice from the experts. Go from table to table to get the information you need.

12:50 Vendor Prize Drawings 1:00 Adjourn

Sally Tomatoes 1100 Valley House Dr., Rohnert Park Registration Fee Members: $45 Non-Members: $55

Yes, reserve ___ spaces for the Wine Country Seminar.

Amount enclosed: $__________ (attach additional names) Name: ______________________________________________________ HOA or Firm: ________________________________________________ Address: ____________________________________________________ City: __________________________ State: _____ Zip: ____________ Phone: ______________________________________________________ Visa/Mastercard No. _____________________ Exp. Date: ________ Signature: ___________________________________________________ Orders will not be processed without payment in full. Fees for cancelled registrations will not be refunded. Return with payment to: ECHO, 1602 The Alameda, STE 101, San Jose, CA 95126 Telephone: 408-297-3246; Fax: 408-297-3517