July 2011
A Journal for California Community Association Leaders
echo-ca.org
Neighborhood Awareness and Security ALSO INSIDE THIS ISSUE:
• Sideswiping Owners Will Have a Backlash • Insuring for the Future • Carbon Monoxide Detectors Required
Change Service Requested ECHO 1602 The Alameda STE 101 San Jose, CA 95126
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Maybe homeowners are asleep at the wheel, but sidewiping them wil have a backlash—Page 12
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Neighborhood Awareness and Security Neighborhood security is increasingly important for California associations. Aging populations and communities, risk of litigation, and the large size of many CIDs bring awareness to this issue. But it is possible to assess, plan for, and improve personal and community security.
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.
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If you are on the board in your association and think that owners are asleep at the wheel, you may be right. However, carrying that assumption into everything the board does can be a problem in itself. Sideswiping owners on a big project can have a painful backlash!
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Sideswiping Owners Will Have a Backlash!
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Insuring for the Future
Carbon Monoxide Detectors Now Required
Secretary Dorothy Kopczynski
California law now requires carbon monoxide detectors in every dwelling unit intended for human occupancy where the home has a fossil fuel heater or appliance, fireplace or attached garage. New homes must be equipped with a detector by January 1, 2011, and all other dwellings—including condominiums— must have detectors installed by January 1, 2013.
Directors Paul Atkins John Garvic Robert Rosenberg Richard Tippett Steven Weil
33 Legislation at a Glimpse 34 Directory Updates 36 ECHO Bookstore 38 Events Calendar
President David Hughes Vice President Karl Lofthouse
Jerry L. Bowles David Levy Kurtis Shenefiel Wanden Treanor
Executive Director Oliver Burford Communications Coordinator Tyler Coffin Legislative Consultant Government Strategies, Inc.
40 ECHO Volunteers
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 Neghborhood Security—page 6 July 2011 | ECHO Journal
Board of Directors and Officers
Treasurer Diane Rossi
32 News from ECHO
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Office Hours: Monday–Friday 9:00 a.m. to 5:00 p.m.
Insurance is based on the notion of the future. And although the future cannot be precisely assumed, we must protect our investments against predictable losses. This means looking to experts in the industry, such as insurance brokers, attorneys, reserve analysts and managers. These professionals can determine what types of losses your investment faces and how you can protect yourself.
Departments
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1602 The Alameda, Suite 101 San Jose, CA 95126 408-297-3246 Fax: 408-297-3517 www.echo-ca.org info@echo-ca.org
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ECHO Annual Seminar Sponsors American Asphalt Angius & Terry American Management Bob Tedrick Construction Berding|Weil Common Interest Management Community Management Services Cool Pool ERTECH First Bank The G.B. Group Hughes Gill Cochrane Massingham & Associates Mutual of Omaha Bank PetersenDean Pro Solutions Ram Olson Cereghino & Kopczynski Saarman Construction
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July 2011 | ECHO Journal
By Larry Mesplé
Neighborhood Awareness and Security Assessments Important Steps in Improving HOA Security
O
PTIMIZING NEIGHBORHOOD SECURITY IS
an increasingly important issue for California common interest developments (CIDs), their HOA boards of directors, and association managers. Aging populations and communities, risk of litigation, and the large size of many California CIDs bring awareness to this issue. But it is possible to assess, plan for and improve personal and community security. Neighborhood Watch—neighbors looking out for one another—is a fundamental first step. Silvia Floriano, the Sonoma County Sheriff Department’s Community Service Officer for Sonoma and the southern Sonoma Valley, states that neighbors are a community’s “first line of defense.” Everyone in a CID community should be aware of who belongs on the property and who doesn’t. Neighborhood watch and a welcoming committee help meet this objec-
tive. Informing neighbors when we’re going to be away for a period of time, reporting to law enforcement and neighbors any unusual or suspicious activity in the community, and simply looking at what’s going on outside our homes and maybe pondering the activity greatly help to detect and deter crime. In addition to neighborhood awareness, HOA boards have a whole “toolbox” of ways to enhance neighborhood security. These include maintaining and, whenever possible, upgrading the overall appearance and upkeep of a community; close cooperation with local law enforcement; immediate removal of graffiti; educating residents to call law enforcement rather than a board director or the association manager when noticing suspicious behavior; doing everything possible so that neighbors know and recognize one another; and making sure that garage or carport and the house num-
ECHO Journal | July 2011
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July 2011 | ECHO Journal
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bers do not match, perhaps by using letters or color coding the parking area. Each of these measures when combined and coordinated is more powerful and serves the purpose of motivating criminals to practice their trade elsewhere. Another interesting and effective tool available to an HOA board is on-site inspection and a written assessment by a professional consultant. HOA boards have these experts available to them in prioritizing measures to improve complex-wide security. Such assessments are useful as well to CID developers and builders during the project entitlement process. Why is Security Increasingly Important in California? A number of reasons account for increasing attention to CID security. Perhaps first in importance is that our population is aging. Older people often worry about their personal security. They know that they are perceived as “easy targets” by determined as well as by opportunistic criminals. Two related elements make up a second reason. Established CID communities and their facilities are themselves aging. Living units and common facilities and grounds when built and installed may not have incorporated into their design consideration for security. Landscaping has matured and filled out. Further, we are a litigious society. When purchasing, homeowners may not have thought about features of the community that they may later see as security risks. When they recognize risk, they may want measures taken that are not practical or that the association cannot afford. At that time they may bring claims of liability and litigation to their boards. A third reason why security is becoming more important in California CIDs is the large size of many of our communities. It has been observed that people living in CIDs— and condominiums in particular—are somewhat reclusive or, perhaps better stated, more involved with their own personal affairs than is the case of homeowners in a typical single family subdivision. Strange faces in a large condominium community may not arouse the interest and attention that they would on a typical suburban street of single family homes. While in a small CID it is possible that almost everyone recognizes many or all of the residents, this is less likely in a large one. A consequence is that large CIDs suffer more crime than smaller ones.
Nominating Committee Seeks Candidates for ECHO Board of Directors THE NOMINATING COMMITTEE for the ECHO Board of Directors is seeking expressions of interest from persons who are interested in being considered as candidates for positions on the ECHO Board of Directors. Four positions on the board will be up for election at the ECHO Annual Meeting that will be held in October. These positions are for three-year terms. Current directors whose terms expire in 2011 are Diane Rossi, Robert Rosenberg, Richard Tippett and Kurtis Shenefiel. Board members are expected to attend all of approximately six threehour board meetings held each year, generally at the ECHO Office in San Jose. Each board member also serves on one or more committees that hold regular meetings throughout the year. These two activities involve a commitment of four to six hours per month plus travel time. In addition members are expected to attend the Annual Seminar, Annual Meeting and a twoday board retreat each November. Board members receive no reimbursement for these activities. Nominees will also be expected to have been recent active participants in ECHO activities and to have thorough familiarity with the organization and the CID industry. Persons interested in being considered for nomination should obtain and complete a nomination and qualifications form, available by request from the ECHO office. Every potential candidate, including incumbents, must submit a full form. All completed forms must be submitted to the ECHO office no later than July 15, 2011, to be considered by the nominating committee. Those requesting nomination may be requested to interview with the nominating committee. The committee will meet in late July to prepare recommendations for board consideration.
How Bad Can It Get? For most of us, it is difficult to imagine the following taking place fewer than ten years ago in a large and prominent San Francisco condominium complex. It happened that one unit was to be vacant for a time during the summer because the owner-occupants had left on an extended vacation. A miscreant somehow came to have the key for the temporarily unoccupied condo unit, got past the guard at one of the street entrances and “moved in.” Not only that, this person and accomplices secured keys for the condo owners’ car, which had been left in the building’s garage. For several weeks, intruders lived in and used the owners’ home and car without anyone in the complex knowing. A retired police officer lived in the complex and knew from his earlier police service a prostitute who was among those who had “moved” into the unit. But even with his trained eye, he didn’t know that she was living in the building and that illegal drugs were being sold from the unit. In another case in a leafy North Bay condominium complex, renters for more than a year were dealing drugs from their unit and attracting undesirable visitors into the complex. Prostitution was suspected as well. Watchful neighbors became suspicious and took their concerns to the HOA board. But it took many months working with the local law enforcement and the elderly landlords to remove the renters. What to Do? A Security Analysis in Addition to Neighborhood Awareness HOA boards typically become conscious of the need for professional security services only after a history of break-ins, burglaries, assaults or a continuing problem of bothersome trespassers or repeated vandalism— criminal events that can negatively impact a CID’s livability and reputation. Boards must work within the guidelines of their CC&Rs and it sometimes happens that directors forget what they are empowered to do and overreach. On the other hand, they may not respond quickly enough to reported risks or suspected criminal activities. If a problem is reported or even simply foreseeable and a board does nothing, it can possibly be held liable. Ken Carlisle is a consultant and principal of The Carlisle Group. An MBA and a former Marine Corps officer, Mr. Carlisle has worked more than 23 years in security for individuals and property. He concurs that neighborhood awareness is critical and believes that spend-
ing money on security measures before actual dangers and needs have been identified is a waste of resources. An important early step, he says, is a thorough assessment that not only identifies potential problems but also provides realistic solutions for intelligent and effective security programs, systems, and solutions. The assessment determines if the HOA board has the will and budget to accomplish identified solutions. It also reveals whether competent management exists to implement them.
Assessments not only identify potential problems but also provide realistic solutions for intelligent and effective security programs, systems and solutions. To save money, or from not knowing a cost-responsible alternative, many boards or a committee undertake on their own or ask local law enforcement for a walk-through assessment. This is a rational step and may be helpful, especially for a smaller CID. Unfortunately, typical board members—and perhaps also law enforcement officers—don’t have the time (or seasoned expertise) to do a thorough job. Such quick walk-throughs often leave some “stones unturned.” They do not provide the “turn-key” assurance of a professional consultant and a specific, customized, prioritized plan for implementation. Security programs, Mr. Carlisle states, must be “well planned, effective, workable, affordable, and at the same time not diminish a community’s livability.” “What is needed,” Mr. Carlisle says, “is an all-embracing professional assessment with well thought-out solutions. The solutions must consider the HOA’s budgetary constraints. It must also be sensitive to their impact on the CID’s livability.” The Security Assessment When a board authorizes management to contract for professional attention to its community’s security problems, the first step is an ECHO Journal | July 2011
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assessment including an on-site inspection of the property. A full assessment includes the following elements: • Formal identification of vulnerabilities and exposures that already have or can lead to security problems. • Documented and proven effective solutions, courses of action, and identified costs. • Confirmation that the HOA has the financial means and its board of directors the will to achieve recommended solutions. • Confirmation that association management is competent to assist in implementing proposed systems and procedures. Basic on-site security inspections and written assessments seek answers to the following questions: • What are the CID’s security exposures and vulnerabilities? • Are entry doors solid core and installed with deadbolts and eyeholes? • Are door strike plates secured with 3-inch screws to prevent being forced open? • Are locks re-keyed and not moved to another unit or amenity building? (This is more broadly relevant to a rental commu10
July 2011 | ECHO Journal
• •
•
•
•
•
• •
nity than to ownership units. But it is one that prospective owners or occupants of any residential unit should consider.) Are all keys for common area facilities closely controlled and accounted for? Are door jambs constructed with solid wood and free of any rot, breaks, cracks or other damage? Do all windows, including those on the second floor, close properly and are they equipped with locks? Are sliding door locks intact? Do they have more than one lock to prevent lifting the doors out of their tracks? Are the outdoors areas of the CID complex well lighted? Good illumination should be the norm at all entrances and dark areas, including open parking areas and garages. Are shrubs and other landscaping trimmed to remove hiding places for an intruder? Is there control over who enters and leaves the building or association property? Are fire stairs locked from the outside so that residents can exit but others cannot enter?
• Are mailboxes and public areas well lighted and equipped with good locks? • Is the property well maintained? Are burnt-out light bulbs replaced promptly, landscaping maintained, and graffiti removed immediately? • Are residents in the complex trustworthy neighbors who watch out for each other? • Is there a “Neighborhood Watch Program? (If not, a proactive CID should think about starting one.) A skilled expert will see problems that owners may not identify. He or she should inspect the grounds, common areas, and— both inside and out—at least two typical units. Interviews of a sample of owners or tenants are helpful. For a useful assessment, the consultant must, within a relatively short period of time, understand how the community functions and what its security issues are. Interviewing residents and observing daily routines—day, night, and weekends—help provide that information. The Importance of “Getting It Down on Paper” Before memorializing an assessment, the board should review a draft report and give it serious consideration. Review by a good attorney is also recommended before creating the final formal document, which includes the risks, vulnerabilities and recommendations of the professional. This formal document cannot be ignored; it can be used as legal evidence in litigation. How Much Does an Assessment Cost? The typical cost of a complete written security assessment for a condominium complex starts at about $1,500 and can run to $5,000. The cost of recommendations including other services, equipment, or stationing of on-site security personnel is additional. Other Security Services Consultants can provide standard operating procedures customized to meet an association’s requirements and can help the board prioritize security enhancements. Implementation includes training and orientation in recommended systems. Also, when a serious crime happens and the board and residents want immediate and workable cost-responsible solutions, a security consultant must be able to respond quickly. Other services include providing access to qualified and dependable resources and background checks of contractors, vendors and prospective association employees.
Will a Security Consultant Save the Association Money? To this, Mr. Carlisle responds: “Possibly. If the HOA anticipates the costs of repair and replacement due to crime, implementing security measures and preventing losses saves money, it makes sense to contract with a consultant when losses from criminal attacks exceed the costs of a planned, proposed, or budgeted security program. As an example, assume that someone breaks a window. This is the only thing that’s happened and it costs $500 to replace the window. Should the board of directors spend $1,000 for a security assessment? Probably not. And boards don’t spend money [on a security assessment] to deal with minor problems such as covering graffiti.� But on the other hand, what if someone is assaulted or mugged in the garage or elsewhere in the buildings or on the grounds? Is it worthwhile to call in a security consultant? Most would agree that it is indeed good for the psychological well being of the residents to know that measures have been taken to prevent recurrence. Why Not Wait Until There is a Problem? It is human nature that no one wants to pay for assistance until a problem shows up. But waiting for the problem could have horrific consequences. As noted earlier, boards and their managers need to keep in mind possible liability if nothing proactive is done. If there is a crime and it is reasonably obvious that it was foreseeable, the board may be liable. Association management may also be liable. Inadequate security can also impact property values. A direct relationship links poor security, crime, and lowered property values. Astute real estate agents and brokers evaluate a CID’s history of crime when advising clients. Sophisticated prospects will themselves often research communities for livability and any incidence of crime before committing to buy or rent. High crime or recent crime reduces a CID unit’s sales appeal. Security Reviews for Developers and Builders Progressive developers, builders and investors obtain professional security assessments and include security systems and procedures in their proposed or existing real estate projects. Most know that municipalities often have at least some security requirements incorporated into their building codes.
When a developer takes a CID through the planning and entitlement process, a thorough security assessment helps prepare the developer to best answer planners’ questions. It can be useful as well in addressing neighborhood concerns. In short, a security assessment is a background document that a developer can use, if needed, with all project stakeholders.
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When preparing a written security assessment for a proposed development project, a competent consultant contacts the local police or sheriff’s department for crime statistics and for their views of the neighborhood. The consultant will also talk with neighbors and take a careful, seasoned look at the physical area and site plan to spot and prevent potential dangers. Assessments for developers in the planning stage typically start at $2,500. Conclusion Security is on the long list of issues and responsibilities HOA boards of directors and association managers have on their agendas. But they also have a number of tools for addressing the challenge of optimizing security. A first step is to make every effort to encourage and facilitate community (neighborhood) awareness. Second, they take measures to show outsiders that their community is well maintained and attended to. Third, they can order an assessment by a professional consultant. An assessment provides the board with a comprehensive prioritized list of possible security risks and the costs to mitigate them. And it determines if the board has the will, funds, and management to implement reasonable security measures while operating within their CC&R guidelines. Future complexes can be designed to incorporate security enhancements at a time when they can provide the maximum benefit for the minimum cost. --------------A later article will consider security from the standpoint of board responsibilities. It will also provide some tips on how association managers can help.
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Larry MesplĂŠ serves as newsletter editor for Management 4 HOAs, a firm that manages more than 40 homeowner associations in Marin and Sonoma counties. Previously he worked in real estate development for three decades. He is a former president of the Sonoma Greens Condominium Association where he resides. ECHO Journal | July 2011
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If you think that the owners are asleep at the wheel, you may be right, but carrying that assumption into board decisions will have a backlash.
By Beth A. Grimm, Esq.
Sideswiping Owners Will Have a Backlash! I
F YOU ARE ON THE BOARD
in your homeowner association and you think that the owners are asleep at the wheel, you may be right. However, carrying that assumption into everything the board considers doing, even when it is a very important undertaking, can
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July 2011 | ECHO Journal
be a problem in itself. “Sideswiping” the owners on a big project will very likely have a painful backlash! What do I mean by a big project? I mean something that can be very controversial in nature or that requires approval of own-
ers. In my experience, the most controversial and/or important projects a board is likely to undertake in a homeowner association include the following: • Large Special Assessments
Continued on page 14
ECHO Journal | July 2011
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Sideswiping Owners Continued from page 12
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July 2011 | ECHO Journal
• • • • •
Arranging for Bank Loans Lease Limitation Restrictions Amendment of Governing Documents Handling Complaints About Management Recall Attempts And Emotional Issues Like: • Filling in a Pool • Removing Trees • Changing Paint Colors • Reassigning Parking Spaces • Changing Pet Rules Why should you believe me? Because I have been working with homeowner associations and homeowners in them for more than 20 years, and I have seen how problems unfold and have helped many associations and homeowners iron out problems. Many associations wait until there is a problem before coming to an attorney rather than seeking preventive legal advice that could assist greatly in strategizing how things might be laid out in a positive way for owners. Most of the topics listed, if handled by a not-so-experienced board, lead to a stressful time. It is hard for a board to anticipate all of the issues that can arise with the individual homeowners unless they have gone through the process already. And even if a homeowner association’s board has gone through a difficult ballot presentation, emotional issue, major rehabilitation project, or attempt to get much-needed amendments and updates to the governing documents, by the time it happens again, it is probable that the board membership will have changed. Unless a new board has access to former directors to ask for guidance, it is not likely to be able to get through a controversial topic without having the homeowners “come out of the woodwork!” How can a board avoid “sideswiping” the membership and prevent a major backlash, a revolt or worse, a recall! This article is all about how to prepare the membership for those big changes, big projects, or big assessments, things that experience tells me are likely to rile the homeowners. You may think the members aren’t listening and don’t care. But believe me, they do, when it is something that is going to extract a pound of “flesh,” such as a huge packet of documents that requires their approval or a large special assessment, or even an amendment that leads them to believe they may lose some rights.
This article will encourage preventive measures; however, even if you are in the midst of a crisis or “restless-native” situation, tips will be given on how to turn things around. Attorneys with lots of experience in quieting the waters can offer strategies for building consensus, solving problems, preparing members for difficult decisions, improving communications, avoiding major conflict, and helping boards and owners dig out of a difficult political hotbed.
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What do Board Members Seem to Overlook or Underestimate the Most When Dealing With Controversial or Emotional Subject Matter? The Owners! What Do Directors Need To Get The Homeowners On Board? Patience • Understanding • Compassion • People Skills • Consensus-Building Skills • Organizational Skills • Knowledge • Leadership Qualities • Honesty • Fortuity • Ethics • Competence How Many Directors Have All of These Qualities? Not all of them—in fact, probably a very small minority. So what do you have to do? You have put your heads together and share your ideas, talents and strengths, and assign tasks. Without a strategy and sufficient resources (which include a collective “braintrust” of sorts), you may have to punt! What do I mean by that? You may have to pull in the right resources to help you prepare to avoid, or respond to, the controversy before you. How do you do that? Reach out to ECHO! The vendor directory is full of qualified and experienced providers in all areas including legal, financial and management. Call these people, ask them questions and ask how they might help you! Check out the web! Locate informational sites that offer free information, articles and valuable resources. Where Do You Start As a Board? Information Gathering: Knowledge is truly power. Any board that presents issues or proposals to the membership without providing sufficient information to garner the trust of the members is asking for trouble. When you discover a problem, or decide to tackle a potentially controversial topic, “Be Prepared.” If you are having to ask the members for something (that proverbial “pound of flesh”), or they are broadsided with any difficult problem and fail to prepare properly for handling it, the problems will multiply. You
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may slip something past them if the owners are truly “asleep at the wheel” but its better not to risk it. It is a lot harder to calm members when they have lost trust or been misinformed by the rumor mill than to educate and prepare them on the front end. Certainly, there are times when a board skates by; but in my experience certain subject matter seems to consistently “raise hairs.” If a situation or action of the board gets the wrong kind of attention from even one vocal member, it can become a much bigger problem. The easiest way for any homeowner to gain support from the rank and file or from a judge or other arbiter of any dispute is to argue a lack of transparency on the part of the board. Secrecy gets people riled. While a board may think meeting behind closed doors is the right thing to do to avoid stirring up problems, or believes it’s okay because no one ever comes to meetings, owners want to know when there is something happening that may affect their property or them. Put Yourself in “Their” Shoes: One of the most important things boards overlook is the owner’s perspective. Once on a board, you become a “member of the private club” and can forget about your peers’ perspective. A good question to ask is “If I were an owner just hearing about this for the first time (or being asked to vote on this), what would I want to know?” Another good question: “What would make me appreciate/approve/ understand what the board is proposing?” Boards often fail to identify subject matter that is likely to have an emotional impact. Why? Because the board members may underestimate the impact on any individual owner! And, of course, board members tend to have much more information than owners; thus, until owners are brought up to speed, what may seem like a good idea or “business as usual” may trigger an uprising! You cannot expect one simple letter or communication asking for support to bring owners completely up to speed on something the board has taken weeks or months to research or investigate. Have you ever heard the expression: “To assume something can make an “ass” out of “u” and “me”. How can you expect that an owner will see things from your perspective if you do not share what you know with them? For purposes of discussion, let’s look at a few examples. Situation 1: Owner concern, problem with Perspectives/Interests/Critical of Board Decisions/Lack of Transparency: Two own-
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July 2011 | ECHO Journal
ers came to me for representation. They were very upset about a serious lack of transparency around some critical (and material) financial decisions and management. They could not get any financial records, not even those the HOA was required by law to provide. There was an election coming up and they decided to run for the board. There were some “tactics� engaged to try and prevent these two owners from getting on the board but that just made them try even harder. They reached out to HOA members seeking support and were able to illustrate some of the roadblocks being put up by the board and management. That got them the support they needed to get elected to the board! These owners were well-intentioned and willing to work hard, but they had a lot of ground to cover to get up to speed on what a board member should know and do, how meetings should be run, and how to resolve problems involving financial issues, contractors, and management. Immersed in straightening out financial matters, they gave short shrift to one (unwitting to them) very emotionally charged subject: tree removal. Someone mentioned at a board meeting that some of the mature trees in the project were a bother. They called out an arborist. The arborist mentioned that trimming the trees would help, but since they had not been properly maintained, it might be expensive. “It would be cheaper to remove them,� he said. This sounded reasonable, and so there was an order to the landscapers to start removing the trees. When the chopping and cutting began, it brought owners out of their armchairs, screaming and shouting, at the landscapers and at the board members. Ruffled feathers had to be soothed. Other options had to be considered. Owners had to be brought into the loop and brought up to speed as to the “whys and wherefores,� and a plan to replace removed trees had to be determined to avoid a riot that would interfere with other what seemed more pressing matters to the board. A little medicine can go a long way to help cure a festering sore. Situation 2: Amendment/Restatement of Governing Documents Project “Gone South.� I was working with the board of directors and association on an important amendment/restatement/updating of governing documents project. Everything went well until the documents and a ballot were sent out to the membership. The board had been offered a plan for follow up and had
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been encouraged to call if there were any problems that arose in the process. A meeting with owners had been discussed but the board opted not to have one, believing the owners would simply trust the board and blithely return ballots. In this particular case, the board and committee became aware that an owner was circulating communications to neighbors that criticized the board’s efforts and encouraged opposition. I did not find out about it until a couple of months later when I contacted the board to see how things were going. “Oh, that is over,” I was told by a committee member. “We didn’t get enough votes. In fact a lot of owners never voted. We think it is because an owner sent out a letter to all owners shortly after the ballot documents were sent to owners criticizing the documents. So a lot of people didn’t even vote.” My question was: “Did you see it? What did you do about the letter?” The answer: “Oh, nothing, we assumed the owners would not listen to this owner who is a troublemaker.” That was that! The board had scrapped the entire $6000+ project because an owner’s letter to the members kept people from voting! What kind of “damage control” might have saved the project? I can think of a few things: 1. A reply to the nonsensical owner letter sent to all of the members, stating facts and encouraging owners to contact a board member or come to a board meeting if they had questions. 2. A Q&A with pertinent questions and answers to any questions raised in such a letter. 3. A town hall meeting and/or encouragement to members to consider the source and substance of any communications or complaints before giving them credibility, and to help owners understand that, although it is impossible to please everyone, the benefits of the updated/restated documents to the community would be considerable. 4. Invite an attorney to answer questions from members honestly and stand up to the naysayers with credible feedback. What preventive measures could have been taken? Communications and follow-up, including door to door visits or phone calls, by board or committee members to see if owners had any questions or concerns about the mailed ballot package, 18
July 2011 | ECHO Journal
What can a board do to make a meeting with the owners more fruitful? Situation 3: Management has upset some members and there is a revolt brewing. I have seen a number of times when some owners get upset with management. Sometimes it’s just because the owners have received violation or hearing notices. Sometimes it is because management was short with them at a meeting; perhaps there was a misunderstanding by owners that they could participate in business meetings. Sometimes it is because a manager is suffering from burnout, is rude, incompetent, or seems to be running the board—things that make owners angry. Sometimes the board does not even like the association manager but doesn’t know what to do or believes it is more trouble to change managers than to remain with what they have. Some boards change management regularly. Sometimes it is because they are fickle and cannot communicate effectively with management, or boundaries are not clearly set. And some boards change management continuously because they cannot find a manager that can adequately manage the association.
Some boards change management continuously because they cannot find a manager that can adequately manage the association. What should the board do? Here are a few suggestions: (1) Consider surveying members with questions geared to elicit member feedback, (2) ask the manager how she feels (i.e., get her side of the story), (3) hold an evaluation discussion meeting with the manager and (4) ask if the manager is willing to attend a meeting where owners can ask questions or express concerns. If the manager says: “To he[ck] with the members,” it may be time to look around. Situation 4: The board is facing the need for a substantial special assessment and/or ECHO Journal | July 2011
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bank loan that will require member approval. The board is going to need owner approval of a special assessment and possibly a bank loan for necessary reconstruction or some other project. Owners are already complaining about expenditures and what they get for their money. There are challenges coming from all directions; i.e., owners who believe the board should be able to find a cheaper contractor, find a less expensive way to do the work, cut back on some of the work, wait to do the project until the next year, etc. Some members are in favor of getting a loan for the project and paying it off over time and others are highly opposed to the loan and costs involved. The “natives” are really getting restless and rumors abound about the board’s intentions or positions. What can the board do to stop the rumors? What can the board do to gain consensus? What can the board do to make sure it is on the right track? How should a board prepare for a meeting with owners?
How to stop rumors, obtain consensus and prepare owners for meetings? Communicate! Here are some quick answers: communicate, communicate, communicate! Send out informational packets. Educate the owners. Hold town hall meetings. Have the association experts come and answer questions (banker, manager, contractor, lawyer, CPA, and an attentive board). Survey the members to find out preferences of owners on structure of paying assessments, work being contemplated as add-ons but not necessary, etc. so you can get more information about the pulse of the community and what opposition might arise. Check out the various forms of communicating at the end of this article. Situation 5: The board has hired contractors to repaint the buildings using new colors and/or trim, remove trees, fill in the pool, take out the spa, eliminate or reassign parking paces; or it has decided to change the pet rules or some action that touches one or more owner’s last nerve. Owners hear about it and come unglued. The rumor mill is rampant. Potshots are prevalent. 20
July 2011 | ECHO Journal
What should the board do about it? How much lead time is needed? How much information/preparation should the board engage in and share with owners? Why is paint color such an emotional topic and what extra effort is needed? Does the board have the right to reassign parking spaces or change the pet rules? Recognizing hot button issues is a good place to start, and many are listed in this article. Prepare owners in time for them to respond before you sign contracts and get backed into a corner you can’t gracefully get out of. Survey members. Have a town hall meeting. Get all the facts before doing this so that trust is not lost over a failure to be able to answer any questions with credible answers. Situation 6: The board is served with a recall petition. What should it do? Call an HOA attorney! In the bullet point notes below, there are some tips for riot-prevention tactics. Consider them carefully: • Informational Town Hall and Board Meetings: Preparation/organization/comfort of attendees, determine whether experts are needed? Pay attention to body language/approach. Pictures are worth 1000 words. Don’t try to suppress dissenters—use information to challenge their credibility. • Informational Communications: Provide valuable information—expert reports when possible. Explain necessity of confidentiality if needed. Don’t assume people who don’t come to meetings don’t deserve communications. • Question and Answer Communications: Anticipate questions and provide answers. • Surveys and Straw Polls (not to be confused with ballots): Provide meaningful information to get meaningful feedback. Make sure owners are clear the poll is not a ballot. • Painting Projects—What Works: Paint samples on a building owners can see and comment on—not a piece of paper or paint chip.
Beth Grimm is an attorney with offices in Pleasant Hill. She is a member of ECHO and various other industry organizations in California and nationally. She can be contacted through her website www.californiacondoguru.com. She has just been named by ECHO as the 2011 Volunteer of the Year.
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July 2011 | ECHO Journal
By Charlotte Allen
Insuring for the Future CHO’S ANNUAL SEMINAR and Trade Show is an event all vendors look forward to each year. Meeting new people and having the opportunity to catch up with longtime clients face to face is a much-
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anticipated opportunity for many. One of the most exciting aspects of the Annual Seminar is the changing theme. While most insurance brokers pay close attention to their service, knowledge, competitive pricing, ECHO Journal | July 2011
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adequate insurance coverage and timely proposals, one thing we can’t always brag about as brokers is being the most artistically creative bunch of people. And although we do enjoy the theme each year, I’m afraid our lack of artistic ability doesn’t always allow us to garnish our booth at the trade show like some of our more talented contemporaries. This year’s theme of Exploring The Future, however, provided encouragement for me to address this subject and how it pertains to the world of insurance.
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July 2011 | ECHO Journal
Insurance is specifically based on and around the notion of the future. And although the future cannot necessarily be precisely assumed, we must protect our investments against the most predictable losses. This means looking to experts in the industry, such as insurance brokers, attorneys, reserve analysts, etc. These professionals can collaboratively determine what types of losses your particular investment faces and how you can protect yourself in the future. Insuring your association accurately should be based on a few key elements, including meeting both Davis-Stirling requirements and CC&R guidelines and con-
sidering your particular property characteristics, how the association functions, and who and what needs to be protected. Some common and frequently addressed insurance coverage that communities tend to insure for, and in some cases, must insure for are Property Coverage for hazards such as fire and windstorm, General Liability, Directors and Officers Liability, and Crime. But what about the remaining circumstances we all know are possible, happen to be optional and may cost a relative amount of money to insure? How do we know what coverage to pursue, how much to purchase and where to go when it comes to obtaining facts and information? Your insurance broker can and should be able to offer a capital of knowledge when it comes to coverage for these potential losses. Like other experts in this field, insurance brokers must continue their education and comprehension of insurance products, policies and industry predictions on an ongoing basis. An insurance agency whose niche lies in common interest developments will be able to offer your community assistance with many optional types of coverage.
No one knows when the next earthquake is coming, but we are told it inevitably will come and perhaps soon. A very prevalent concern in our particular area is the dreaded earthquake. No one knows when it’s coming, but we are told it inevitably will come and perhaps soon. Planning for this type of loss might mean preparing for hefty loss assessments, including holding some monetary cushion in your association’s budget, conducting earthquake retrofits to the property or insuring your association against this loss altogether. Especially in today’s economy and considering the sometimes and all too customary lack of regular and total assessments, it is difficult for most communities to pull together enough funds to recover from this type of loss. And although the cost of an earthquake insurance policy may seem exorbitant, the out of pocket expense to repair and rebuild after loss from an earthquake may likely cost
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more. Sadly, if an association isn’t insured, it is likely the only unit owners able to remain and rebuild will be those with adequate equity invested in their property. Given the current time, this could be a fairly small percentage of your community. If an association is contemplating the purchase of an insurance policy covering an earthquake loss or if community members have pushed the issue and want the idea explored further, there are a few steps the association can take. • Contact a broker who specializes in common interest communities and request
competitive insurance options for this type of coverage. • Once data have been collected, offer facts to the community, such as what coverage your association has available, how much it will cost, what the cost might mean for assessments, how deductibles work, etc. • Determine if this coverage and cost warrants a membership vote. Only you and your community can decide if earthquake coverage is something you wish to insure for the unpredictable future. It’s important to ask your membership, “Are you ECHO Journal | July 2011
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willing to risk the investment made in your community if an earthquake loss occurs?” Another insurance policy available and typically optional for common interest communities is Employers Liability or Workers’ Compensation Coverage. A community that lacks employees and wages and has nothing in a payroll may question the necessity for this type of policy. However, we can certainly look to past examples in order to insure your community’s potential future. What the past tells us is there will always be a grey area where this coverage could prevent hefty out of pocket expense to a community if a loss occurs. In San Jose, a contractor’s employee working on a gazebo fell off and broke his arm. The general contractor’s worker’s compensation policy had lapsed, and the association was deemed to be the employer. Although no lawsuit transpired, the association had to come up with money to pay costs. How could this out-of-pocket expense have been avoided? Since the court deemed the association the employer, if they had a workers compensation policy in place, coverage would have been offered to “their employee” without even a deductible or insured retention. Although professionals in the common interest community field will certainly back me up and recommend that any community hire only properly licensed and insured contractors, unfortunately there is never a 100 percent guarantee this practice won’t fail you. Insurance coverage can lapse and fail and purchasing an employer’s liability policy for your common interest community will offer a backup plan in these unforeseen circumstances and avoid an out of pocket expense for members.
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July 2011 | ECHO Journal
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Insuring for the future is probably the most cost-effective way a community can protect themselves at the time of a major loss. I encourage your community to ponder and discuss possible losses and how you can best prepare for them. Make a list of questions that come up and contact the most qualified professionals to assist in answering your questions and helping you make an informed decision.
Charlotte Allen is a licensed insurance agent and broker with Socher Insurance Agency. She is dedicated to helping common interest developments find value in their insurance. Socher is a longtime member of ECHO.
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.
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July 2011 | ECHO Journal
By Lise K. Ström, Esq.
Carbon Monoxide Detectors Now Required in All Homes he California Carbon Monoxide Poisoning Prevention Act of 2010 (California Health & Safety Code §13260 et seq.) is now law. It requires carbon monoxide detectors to be installed in every “dwelling unit intended for human occupancy” where the home has a fossil fuel burning heater or appliance (such as a gas stove or gas-powered water heater), fireplace, or attached garage.1 New homes with such features must be equipped with a carbon monoxide detector by January 1, 2011. Existing single-family homes must install carbon monoxide detectors by no later than July 1, 2011; and all other existing dwellings—including condominiums, townhomes, duplexes, and similar dwellings— must have such detectors installed by January 1, 2013. Carbon monoxide is a colorless, odorless, tasteless—and toxic—gas. High concentrations of carbon monoxide in the home can lead to carbon monoxide poisoning and death. At low levels of exposure, carbon monoxide’s effects can mimic the flu: headaches, dizziness, disorientation, nausea, and fatigue. However, the EPA warns that the effects of exposure can vary greatly from person to person depending on age, overall health, and the concentration and length of exposure.2 Carbon monoxide build-up in a home can be caused by any of the following: • unvented kerosene and gas space heaters, • leaking chimneys and furnaces, • back-drafting from furnaces, gas water heaters, wood stoves, and fireplaces, • gas stoves,
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• generators and other gasoline-powered equipment, • automobile exhaust from attached garages. The new law imposes the following requirements on carbon monoxide detectors:3 • Emit an audible, distinct alarm, clearly distinguishable from the sound made by a smoke alarm, • Be a plug-in device (with a secondary battery back-up) or hard-wired into the home (with a secondary battery back-up), • Certified in accordance with ANSI and UL, • Approved by the State Fire Marshall. A homeowner association, however, may wish to take on the responsibility of installing and maintaining carbon monoxide detectors in light of the safety concerns surrounding carbon monoxide,4 especially in condominium, townhome, and duplex developments, where smoke and gases can easily move across unit and common area boundaries. Even though carbon monoxide detectors are wholly located within units (which, under most associations’ governing documents, make them the sole responsibility of the homeowner), it is possible for associations to assume maintenance of these items. Association boards may wish to consult with their legal counsel to determine if there is existing language in their governing documents that authorizes the association to take over maintenance of carbon monoxide detectors, or the board may wish to amend their documents accordingly.
1 California Health & Safety Code §17926(a). 2 California Health & Safety Code §13262(a). 3 California Health & Safety Code §13262(a). 4 Carbon monoxide is considered a “hazardous substance” under California State law. 8 California Administration Code §339.
Lise K. Ström is an attorney in private practice in the South Bay who provides legal services to residential, mixed-use, and commercial community associations with a focus on green development and green conversions. ECHO Journal | July 2011
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Bakersfield Tree Service Scammer Sentenced to Jail Conviction and Jail Time Aimed at Cutting Down Unlicensed, Illegal Activity clear message from Kern County Superior Court was recently sent that contracting without a license is illegal and phony contractors will be punished. Upon his third conviction for contracting without a license on May 13, 2011, Candido Martinez Villarreal, 51, of Bakersfield, was sentenced on May 16, 2011 to 120 days in jail and fined $5,700 for contracting without a license and illegal advertising. Martinez Villarreal was also ordered to pay $1,100 in restitution to the consumer who contracted for his services. (A third conviction for contracting without a license carries a minimum of 90 days in jail and $5,000 in fines.) Martinez Villarreal’s prior convictions for contracting without a license were in 2003 and 2007, when he was also convicted of illegal advertising.
A
California law prohibits contracting for home improvement services valued at greater than $500 for labor and materials without a state contractor license. Contractors must also place their license number in all forms of advertising. Those who do not have licenses can bid to do home improvement jobs valued at less than $500, but their ads must state that they are not a licensed contractor. 30
July 2011 | ECHO Journal
“Consumers who contract for home improvement services with unlicensed individuals put themselves and their families at both financial and personal risk,” said CSLB Registrar Steve Sands. “Unlicensed operators almost never carry workers’ compensation insurance, subjecting homeowners to liability if anyone is injured on their property. The board and its partnering prosecutors will not tolerate activity that puts California consumers at risk and undermines the integrity of licensed, legitimate service providers.” “Recently, the Department of Industrial Relations found a San Francisco Bay Area homeowner liable for injuries to an employee of an unlicensed operator and required him to pay $150,000.” Since 2005, CSLB licensees have undergone fingerprinting and criminal background checks when they apply for a new license or add a licensing classification. State law also requires a $12,500 surety bond as a condition of licensure so that consumers can make a financial recovery if damage is done to their property or if the project is not completed to trade standards. CSLB urges consumers to follow these tips before hiring anyone to do work on their home or property:
• Hire only licensed contractors and ask to see their license and a photo ID to verify their identity. • Always check the license number on CSLB’s website at www.cslb.ca.gov to make sure the license is in good standing. • Don’t pay more than 10 percent or $1,000, whichever is less, as a down payment. There is an exception for about two dozen licensees who carry special bonds to protect consumers. These exceptions are noted on CSLB’s website. • Don’t pay in cash, and don’t let payments get ahead of the work. • Get at least three bids, check references, and get a written contract. The Contractors State License Board operates under the umbrella of the California Department of Consumer Affairs. More information and publications about hiring contractors are available on the CSLB website or by calling 800-321-CSLB. You can also sign up for CSLB email alerts on its website. CSLB licenses and regulates California’s more than 300,000 contractors. In fiscal year 2009-10, CSLB helped recover nearly $42 million in ordered restitution for consumers.
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ECHO Journal | July 2011
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News from ECHO
Carbon Monoxide Detectors Now Required in All Homes The California Carbon Monoxide Poisoning Prevention Act of 2010 (California Health & Safety Code §13260 et seq.) is now law. It requires carbon monoxide detectors to be installed in every “dwelling unit intended for human occupancy” where the home has a fossil fuel burning heater or appliance (such as a gas stove or gas-powered water heater), fireplace, or attached garage. New homes with such features must be equipped with a carbon monoxide detector by January 1, 2011. Existing single-family homes must install carbon monoxide detectors by no later than July 1, 2011; and all other existing dwellings—including condominiums, townhomes, duplexes, and similar dwellings—must have such detectors installed by January 1, 2013. Insuring for the Future Insurance is specifically based on and around the notion of the future. And although the future cannot necessarily be precisely assumed, we must protect our investments against the most predictable losses. This means look32
July 2011 | ECHO Journal
ing to experts in the industry, such as insurance brokers, attorneys, reserve analysts, etc. These professionals can collaboratively determine what types of losses your particular investment faces and how you can protect yourself in the future. Insuring your association accurately should be based on a few key elements, including meeting both Davis-Stirling requirements and CC&R guidelines and considering your particular property characteristics, how the association functions, and who and what needs to be protected. Some common and frequently addressed insurance coverage that communities tend to insure for, and in some cases must insure for, are Property Coverage for hazards such as fire and windstorm, General Liability, Directors and Officers Liability, and Crime. But what about the remaining circumstances we all know are possible, happen to be optional and may cost a relative amount of money to insure? How do we know what coverage to pursue, how much to purchase and where to go when it comes to obtaining facts and information? Your insurance broker can and should be able to offer a capital of knowledge when it comes to coverage for these potential losses. An insurance agency whose niche lies in common interest developments will be able to offer your community assistance with many optional types of coverage. A very prevalent concern in our area is the dreaded earthquake. No one knows when it’s coming, but we are told it
inevitably will come and perhaps soon. Planning for this type of loss might mean preparing for hefty loss assessments, including holding some monetary cushion in your association’s budget, conducting earthquake retrofits to the property or insuring your association against this loss altogether. Especially in today’s economy and considering the sometimes and all too customary lack of adequate regular assessments, it is difficult for most communities to pull together enough funds to recover from this type of loss. And although the cost of an earthquake insurance policy may seem relatively exorbitant, the out-of-pocket expense to repair and rebuild after loss from an earthquake may likely cost more.
Optimizing Neighborhood Security Optimizing neighborhood security is an increasingly important issue for California common interest developments, their HOA boards of directors, and association managers. Aging populations and communities, risk of litigation, and the large size of many California CIDs bring awareness to this issue. But it is possible to assess, plan for, and
improve personal and community security. Neighborhood Watch—neighbors looking out for one another—is a fundamental first step. In addition to neighborhood awareness, HOA boards have a whole “toolbox” of ways to enhance neighborhood security. These include maintaining and, whenever possible, upgrading the overall appearance and upkeep of a community; close cooperation with local law enforcement; immediate removal of graffiti; educating residents to call law enforcement rather than a board director or the association manager when noticing suspicious behavior; doing everything possible so that neighbors know and recognize one another; and making sure that garage or carport and the house numbers do not match, perhaps by using letters or color coding the parking area. These measures, when combined and coordinated, are more powerful and serve the purpose of motivating criminals to practice their trade elsewhere. Another interesting and effective tool available to an HOA board is on-site inspection and a written assessment by a professional consultant. HOA boards have experts available to them in prioritizing measures to improve complex-wide security. An assessment provides the board with a comprehensive prioritized list of possible security risks and the costs to mitigate them. And it determines if the board has the will, funds, and management to implement reasonable security measures while operating within their CC&R guidelines.
Legislation at a Glimpse As of June 30, 2011 Bill No.
Author
Subject
Status
Position
Summary
AB 19
Fong
Submetering
Failed passage in Assembly Housing.
Support if Amended
For new construction of multi-unit structures, requires the installation of water sub-meters.
AB 20
Halderman
Construction Defect Disclosure
Failed passage in Assembly Judiciary.
Oppose
Requires that an attorney make certain written disclosures to a client in a potential construction defects action. Failure to disclose would constitute cause for professional discipline.
AB 579
Monning
Mobilehome Attorneys Fees
Hearing 5/10 canceled at author’s request.
Support
Would permit the award of attorney's fees to local governments in an action brought by the owner of a mobilehome park to challenge the validity of a local ordinance.
AB 771
Butler
Sale Disclosure In Senate Oppose Documents Rules. Assembly Third Reading.
Provides that the time frame and fee limitation for providing specified documents to an owner of a separate interest apply to an agent of the association.
AB 805
Torres
Davis-Stirling Revision Part 1
Passed Assembly 5/2. In Senate Housing.
Support
This is the first of two bills from the California Law Revision Commission that restate and clarify the Davis-Stirling Act.
AB 806
Torres
Davis-Stirling Revision Part 2
Passed Assembly 5/2. In Senate Housing.
Support
This is the second of two bills from the California Law Revision Commission that restate and clarify the Davis-Stirling Act.
AB 818
Blumenfield
Right To Recycle
Senate Watch Third Reading. In Senate Rules.
Would establish “Renter’s Right To Recycle Act.”
SB 150
Correa
Rental and Lease Rights
Assembly Housing Hearing 5/3.
Support if amended
Would require associations to permit rentals by unit owners.
SB 209
Corbett
Electric Vehicle Charging Stations
In Assembly Housing.
Support if Amended
Makes void and unenforceable any prohibition by an association that restricts the installation or use of an electric vehicle charging station. Requires homeowner to pay for all charges and damages associated with installation and maintenance.
SB 561
Corbett
Third Party Collections
Passed Senate; In Assembly Housing.
Oppose
Would require any 3rd party acting to collect payments or assessments on behalf of an association to comply with the same requirements imposed on the association. Makes statement of legislative intent.
SB 563
Transportation & Housing Committee
Electronic Meetings
Senate Support Third Reading.
Prohibits electronic meetings except for emergencies. Prohibits boards from taking action outside of a meeting. Requires boards to provide agendas of executive sessions. Requires boards to give notice two days before an executive session.
SB 759
Lieu
Artificial Turf
Passed Senate; In Assembly Housing.
Voids provisions in governing documents that prohibit artificial turf. Allows associations to establish design and quality standards.
Oppose
ECHO Journal | January 2011
33
Directory UPDATES Updates for listings in the ECHO Directory of Businesses and Professionals, now available online at www.echo-ca.org.
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July 2011 | ECHO Journal
A-1 Roof Management & Construction, Inc. 14100 Doolittle Drive San Leandro, CA 94577 Contact: Monique Gracia Tel: 510-347-5400 Fax: 510-347-5401 www.roofmanage.com Email: Monique@roofmanage.com A-1 Roof Management & Construction specializes in reroofing and roof repairs for residential, commercial as well as construction projects, including but not limited to remodeling, repairs or concrete. Apollo Property Management P.O. Box 1945 Campbell, CA 95009 Contact: Kathleen Angel Tel: 408-594-1254 Fax: 408-317-0339 Email: kitty_angel@yahoo.com George Wolff, Esq. Law Office of George Wolff & Assoc. 505 Sansome St., Suite 1525 San Francisco, CA 94111 Contact: George Wolff, Esq. Tel: 415-788-1881 Fax: 415-788-0880 www.wolfflaw.com Email: george@wolfflaw.com We represent and work with property and condominium owners and associations in cases involving allegations of construction defects, including water leakage or other property damage. Our attorneys also represent property owners and homeowners associations in disputes, including SB800 and Calderon law cases, on construction contracts, mechanics liens, change order, extra work, and payment disputes.
By Molly A. Foley-Healy, Esq.
Optimizing Committees in Association Governance Ram Olson Cereghino & Kopczynski, LLP 555 Montgomery St., Suite 820 San Francisco, CA 94111 Contact: Jan A. Kopczynski, Esq. Tel: 415-433-4949 Fax: 415-433-7311 www.ramolson.com Email: jak@rocklawcal.com Law Firm specializing in construction defect litigation, business and real estate law, community associations, consumer class actions and first amendment/media law.
Member Changes Advanced Restoration 1177 N. 15th St. San Jose, CA 95112 Address correction only—everything else remains the same. Mutual of Omaha Bank 40087 Mission Blvd., Suite 261 Fremont, CA 94539 Contact: Jack V. Brandt Tel: 866-800-4656, ext. 7579 Fax: 855-898-6006
common question from homeowner association boards is whether it is appropriate or prudent to use committees as a tool in the governance of associations. Clearly, the answer is “Yes, committees can be an excellent resource if they are harnessed appropriately.” However, if committees are not organized or do not operate effectively, they can become a waste of time or even a runaway train that can lead to anger and resentment for everyone involved. Here are some tips that every board should take into consideration when creating and utilizing committees:
A
1. Determine whether the governing documents of your association provide for “standing committees.” References to committees in governing documents will most typically be found in the bylaws and/or declaration of covenants, conditions and restrictions (CC&Rs) in most associations. It is common for the governing documents of many associations to create standing committees, such as an architectural review committee or design review committees to address requests by homeowners to make improvements to their homes or lots. Some governing documents also require a budget committee to be utilized in financial planning of the association. If the governing documents of your association provide for standing committees, take steps to ensure those committees are organized and function according to the requirements contained in the documents. 2. Board-appointed committees should be carefully structured to ensure they operate at optimal and efficient levels. A common mistake boards make is the failure to outline clearly the parameters and expectations of committees. This can lead to committees that
are out of control or are unable to function effectively because the members of the committees do not have a clear understanding of their roles. Therefore, boards should take the time necessary to draft a clear and concise “committee charter,” which should include the following: Purpose of the Committee. The exact purpose of the committee should be outlined in the charter. Is the purpose of the committee to provide the board with a recommendation on an issue? Is the purpose of the committee to carry out a specific task? Whatever the purpose of the committee is, make sure it is spelled out in a clear and understandable manner. Timeframe for Committee Action. Be clear about the timeframe of the committee. Is the committee to meet during a period of six weeks or a year? Is the committee a standing committee that will meet until the governing documents are amended or until the board takes action to dissolve the committee? Work Product Expected from the Committee. Be clear about what the committee is expected to produce. Is the committee expected to provide a detailed recommendation to the board? If so, what must be included in the recommendation? Is the committee expected to take some sort of action on behalf of the board or association? If so, be very clear about the action the committee is expected to take. Also, it is important to remember that a board of an association is permitted to delegate a duty to act but cannot delegate responsibility for the action that is ultimately taken by the committee. Continued on page 41 ECHO Journal | July 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.
FOR Board Members Reserve Fund Specialists Property Managers Unit-Owners, Accountants Lawyers, Builders
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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.
RESERVE FUND
ESSENTIALS THIRD EDITION FIFTH PRINTING JONATHAN H.
JUFFS Reserve Fund Specialist
Two experts discuss reserve fund planning and control in a refreshingly readable and exceptionally levelheaded style.
GRAHAM D.
OLIVER Board President (ret.), Reserve Fund Aficionado
INCLUDES RESERVE FUNDS FOR CONDOMINIUMS COMMUNITY ASSOCIATIONS HOAs CO-OPS MEMBER-OWNED PROPERTIES MUNICIPAL FACILITIES
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.
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.
2011 ECHO Annual Seminar Program Book $25.00 Non-Member Price: $35.00 This 300+ page reference book contains the presentation outlines, text and handouts from the sessions at the 2011 ECHO Annual Seminar held on June 18, 2011. 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
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ECHO Events Calendar
Save these dates Thursday, July 7 North Bay Resource Panel 11:45 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael
Wednesday, August 10 South Bay Resource Panel 12:00 Noon Il Fornaio 302 S. Market St., San Jose
Thursday, September 15 San Francisco Luncheon 11:45 a.m. to 2:00 p.m. St. Francis Yacht Club San Francisco
Monday, July 11 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant Oakland
Friday, August 12 East Bay Resource Panel 12:00 Noon Massimo Restaurant 1604 Locust St., Walnut Creek
Wednesday, September 21 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park
Tuesday, July 12 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz
Wednesday, August 17 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park
Saturday, September 24 Central Coast Fall Seminar 8:00 a.m. to 1:00 p.m. Hilton Santa Cruz 6001 La Madrona Dr., Santa Cruz
Wednesday, July 20 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park Thursday, July 21 San Francisco Luncheon 11:45 a.m. to 2:00 p.m. St. Francis Yacht Club San Francisco Wednesday, August 3 Maintenance Resource Panel 12:00 Noon ECHO Office 1602 The Alameda, Ste. 101, San Jose
Thursday, September 1 North Bay Resource Panel 11:45 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael Monday, September 12 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant Oakland Tuesday, September 13 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz
Wednesday, October 5 Maintenance Resource Panel 12:00 Noon ECHO Office 1602 The Alameda, Suite 101 San Jose Wednesday, October 12 South Bay Resource Panel 12:00 Noon Il Fornaio 302 S. Market St., San Jose Friday, October 14 East Bay Resource Panel 12:00 Noon Massimo Restaurant 1604 Locust St., Walnut Creek
Friday, October 14 ECHO Annual Membership Meeting 10:00 a.m. ECHO Office 1602 The Alameda, Suite 101 San Jose Wednesday, October 19 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park Thursday, November 3 North Bay Resource Panel 11:45 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael Tuesday, November 8 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz Monday, November 14 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant Oakland Wednesday, November 16 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
July 2011 | ECHO Journal
Meeting First Wednesday, Even Months First Thursday, Odd Months Second Friday, Even Months 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
San Francisco Luncheon Thursday, July 21 11:45 a.m. to 2:00 p.m.
Anatomy of a Disputed HOA Election John Gill, Esq. Hughes Gill Cochrane PC
Luncheon Price: $75 Non-Members: $90 Advance reservations are required for this event.
Cell phone use is not permitted inside the St. Francis Yacht Club. Yes, reserve _____ spaces for the ECHO San Francisco Luncheon. Amount enclosed: $__________ (attach additional names) Name: HOA or Firm: Address: City:
State:
Zip:
Phone: Visa/Mastercard No.
Exp. Date:
Signature: Return with payment to: ECHO, 1602 The Alameda, Ste 101, San Jose, CA 95126 Orders will not be processed without payment in full. Fees for cancelled registrations will not be refunded. Telephone: 408-297-3246; Fax: 408-297-3517
ECHO Honor Roll
About
ECHO Honors Volunteers Beth Grimm 2011 Volunteer of the Year ECHO Resource Panels Accountant Panel Richard Schneider, CPA 707-576-7070 Central Coast Panel John Allanson 831-685-0101 East Bay Panel Beth Grimm, Esq., 925-746-7177 Mandi Newton, 415-225-9898 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 Rodriguez, 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
July 2011 | ECHO Journal
SF Luncheon Speakers John Allanson Jeffrey Barnett, Esq. Tyler Berding, Esq. Ronald Block, PhD. Sandra Bonato, Esq. 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 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 June 18, 2011 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 March 2011 Julie Adamen Sandra M. Bonato, Esq. Gene Ebertowski Karl T. Lofthouse Loura K. Sanchez, Esq. April 2011 Beth A. Grimm, Esq. Steven Saarman John R. Schneider Steven S. Weil, Esq. May 2011 Tyler P. Berding, Esq. James O. Devereaux, Esq. Sherry Harvey, PCAM Susan Oliver, CCAM Richard Tippett June 2011 Beth A. Grimm, Esq. Steven Saarman John R. Schneider 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 (www.echo-ca.org) to obtain an application form and for more information.
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Advertise your business to thousands of association directors in California in the ECHO Journal. Optimizing Committees Continued from page 35
Budget for the Committee. Does the committee have any money to utilize in carrying out the task outlined for the committee? You should be clear about the amount of money the committee has to operate with. You should also be clear about the process the committee should go through to obtain the funds. If the committee is not being provided with funds, you should be upfront with that information. 3. Appoint Appropriate Individuals to Serve on Committees. Residents living in associations have a wide array of expertise, talents, and life experiences. An important key to successful committees is to appoint individuals to serve on committees who are able to make valuable contributions to the committees. Do you have landscape architects or gardeners who would be willing to serve on a committee to make recommendations to the board on xeriscaping (landscaping in ways that do not require supplemental irrigation)? Do you have accountants or individuals with a business background who would be willing to serve on a budget committee? Taking time to identify and build
relationships with individuals who may ultimately become valued resources will be time well spent. 4. Consider Appointing a Board or Staff Liaison to Committees. Another great tool to keep committees on track is to appoint board or staff members to be liaisons to the committees. This can be a valuable resource in providing background and information committees may need to operate more effectively. However, care should be taken to ensure these individuals do not dominate or take over the work of committees. In the world we live in today, association boards have a lot on their plates. By using the tips outlined in this article, boards will be able to effectively harness committees to work in a collaborative environment to benefit their communities.
Ace Property Management . . . . . . . .17 Affirmative Management . . . . . . . . . .8 American Management Services . . .10 Angius & Terry . . . . . . . . . . . . . . . . .3 A.S.A.P. Collection Services . . . . . . .20 Association Reserves . . . . . . . . . . .24 Berding | Weil . . . . . . . . . . . . . . . . .44 Collins Management . . . . . . . . . . . .17 Community Management Services . .14 Compass Management . . . . . . . . . .15 Cool Pool Service . . . . . . . . . . . . . .18 Cornerstone Community Mgmnt . . . .18 Draeger . . . . . . . . . . . . . . . . . . . . .15 Ekim Painting . . . . . . . . . . . . . . . . .25 First Bank Association Bank Srvcs . . .8 First Bank Association Bank Srvcs . .21 Flores Painting . . . . . . . . . . . . . . . .34 Gachina Landscaping . . . . . . . . . . .29 Helsing Group, The . . . . . . . . . . . . .24 M & C Association Services . . . . . . .34 M. L. Nielsen Construction . . . . . . .26 Massingham and Associates . . . . . .24 Mutual of Omaha Bank . . . . . . . . . .16 Pelican Management Group . . . . . . .18 PML Management Corp. . . . . . . . . .16 Pollard Unlimited . . . . . . . . . . . . . .26 R. E. Broocker Co. . . . . . . . . . . . . .17 Rebello’s Towing Service . . . . . . . . .31 REMI Company . . . . . . . . . . . . . . . .19 Saarman Construction . . . . . . . . . .20 Scuba Pool Repair . . . . . . . . . . . . .14 Statcomm . . . . . . . . . . . . . . . . . . .26 Steve Tingley Painting . . . . . . . . . . . .2 Steve’s Painting Services . . . . . . . .19 Trex . . . . . . . . . . . . . . . . . . . . . . .21 Valley Landscape Management . . . .11 Varsity Painting . . . . . . . . . . . . . . . .31
Molly Foley-Healy is an attorney at the Colorado law firm Winzenburg, Leff, Purvis & Payne in Denver Colorado. At the time this article was written, she was associated with the law firm HindmanSanchez also located in Colorado. She counsels homeowners associations in transactional matters ranging from document reviews and amendments to opinion letters on matters affecting the operations and governance of community associations. ECHO Journal | July 2011
41
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 Central Coast Fall Seminar Central Coast Fall Seminar Saturday, September 24, 2011 8:00 a.m. to 1:00 p.m.
Hilton Santa Cruz/Scotts Valley 6001 La Madrona Drive, Santa Cruz Registration Fee: $45 Non-Members: $55 Members can register online by Sep 15 for only $40.
Don’t forget to save the date for the Central Coast Fall Seminar in your calendar.
Yes, reserve ___ spaces for the Central Coast 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