Echo Journal – Issue 3 2021 by Echo

CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN

A RULE ABOUT RULES

THE ECHO LEGISLATIVE TRACKING REPORT

Enhance a community’s safety and security

Being consistent and non-selective are the keys to success

Updates on bills in Sacramento that impact HOAs

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SERVING HOA BOARD MEMBERS & HOMEOWNERS

ISSUE THREE 2021

Keeping Your CRIME PREVENTION Community Safe in HOAs

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BOARD OF DIRECTORS & OFFICERS PRESIDENT

DIRECTORS

David Hughes

Jerry L. Bowles

VICE PRESIDENT Adam Haney

Rolf Crocker Sarah Dunia John Gill, Esq.

TREASURER

Mark Guithues, Esq.

Karl Lofthouse

David Levy, CPA

SECRETARY

Katrina Solomatina, Esq.

Sandra Long

Wanden Treanor, Esq.

CHIEF EXECUTIVE OFFICER

David Zepponi DIGITAL OUTREACH SPECIALIST

Connor Zepponi connor@echo-ca.org MEMBERSHIP & SALES ADMINISTRATOR

Jacqueline Price jprice@echo-ca.org

The Echo Journal is published bimonthly by the Executive Council of Homeowners (Echo). 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 professional 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 or image.

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© 2021 Executive Council of Homeowners (Echo) All rights reserved. Reproduction except by written permission of Echo is prohibited. Echo member information is never released to any outside individual or organization, unless agreed to by the member.

For more information visit www.echo-ca.org ECHO journal | ISSUE THREE 2021

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Features

ISSUE THREE 2021 | ECHO journal

Crime Prevention Through Environmental Design

BY TOM CONNELLY

Community & Compliance

BY JEFF FARNSWORTH

Mulch to the Rescue!

BY MARC DUNIA

The Self-Managed Association: A Commonsense Approach to Governing Document Enforcement

BY JOHN CLIGNY, AMS, CAMEX, CCAM-HR

A Rule About Rules

BY PATRICIA ARNOLD

Happenings 6

Executive Director’s Message: Finding Post-Pandemic Sanity

BY DAVID ZEPPONI

July 17 Virtual Seminar: Post-Pandemic, Lessons Learned and What’s New for HOAs

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ECHO journal | ISSUE THREE 2021

news from ECHO CEO’S MESSAGE

Raison d’Etre – The Reason for Bo

Finding Post-Pandemic Sanity

What a beautiful phrase, raison d’etre (reason for being). It is a

It has been a very challenging 15 months. The state are asking these and more precise and detailed every board member consider and collectively agree. questionsshould about the implementation of new freedom HOA world is reeling from the disruption of business for their clients. and the soaring costs of labor and materials. These The phrase engenders The words rollfor from This is ahumanity. much too complicated topic this one’s tong stressors have had a major impact on association Message, but over the coming weeks and management and HOA communities. stark businessCEO’s senses and adds the element of humanity to the months, these questions will repeatedly rear their People deal with the stress of the COVID-induced a board: Strategic planning, execution and (hopefully) evaluation; ugly heads, with confusion resulting in mission incarceration in a variety of ways. Unfortunately, clarity as communities beginshould to openbe andreflective society being cooped up at home or having to management. take a crash The business realities of com takes back its individualism and freedoms. course in technology just adds to the daily pressure common values What of individuals the community. is a board toin do? Move ahead wisely of living, let alone managing an HOA. Then heap on and take reasonable precautions. Overstepping the social and political disruptions … it pushes people Communities are imperfect – because they are maderevolt of humans. H enforcement is likely grounds for community – to the brink. not ausing. good outcome. the cover of legalhumans counsel being relating. Humans HumanSeek living. Basically, Fortunately, reasonableness has mostly prevailed when the risk or threat of risk seems too excessive within HOA communities during this erabeing of societal human,for communities sometimes forget that manageme the board to decide without expert advice. disruption. Generally, people were on edge most Thefor HOA firms are certainly wrestling the establish a law successful community. Inwith a sense, the bo of the time, a little grumpy, but they dealt with the norms questions of opening pools, continued voting via uncertainty reasonably well. And for thethe most part, community. Its purpose is to establish order and elevate o Zoom, and other management decisions. When the HOAs have continued to be managed effectively progress and pace by to establishing norms and constraints to b decision be made is unclear or confusing, it’s a and efficiently – at least once boards learned to use good time to get advice. to benefit all. Zoom. One other tidbit for boards: Now is the time for The big news this week is that restrictions associations to consider the lessons learned and are finally being relaxed and Californians no apparent that board Itwill seems leadership must understand and the next steps for their association. Boards are longer be on a tier system. Vaccinated individuals owners in order to orchestrate sense ofand community and gener encouraged to take aastep back consider what won’t need to use a mask in public, and access to was learned, what worked well, and what did not. amenities will be allowed in most areas.and protect community values. The purpose of a board, therefore Are there techniques or systems that made sense Unfortunately, this relaxation of the state-imposed build community basedbeonused common values for forfuture the good of all. and should or memorialized rules only increases the confusion for HOAs. Are use? Any procedures or issues that made people HOAs commercial businesses and therefore some It takes time toscratch orchestrate a community. takes time to know yo their heads and thereforeItmay require restrictions still apply when opening common retooling? Take a close look at how the board and of comm to listen to the voices and build a vision reflective amenities, or are HOAs private and not time subject management perform. Where can efficiencies be to these laws/mandates? Boards are not alone in will be more effective as a board member and satisfied and you gained, processes be shored up, and community struggling for clarity. HOA law firms throughout the be supported? your reason forengagement being on the board. This is a time of important reflection for the community. Be selfreflective and embrace change in aboards positive and way. residents ECHO is committed to helping homeowner The stress on communities caused by the pandemic ing and advocacy – thisthe is our highlighted best “raison and worstd’etre”. of people, behaviors, and communities. It is time to get the last laugh and use the bad in a positive way to improve HOA living.

Good luck and stay safe, Sincerely,

ECHO CHIEF EXECUTIVE OFFICER 6

ISSUE THREE 2021 | ECHO journal

David Zepponi Executive Director

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ECHO journal | ISSUE THREE 2021

BY J . S P E N C E R E D G E T T, E S Q .

Nothing diminishes the appeal and value of a community faster th

patterns of criminal activity and blight. Safe and secure comm

happy communities. Proactive crime prevention is an importa

enhance a community’s safety an

ISSUE THREE 2021 | ECHO journal

Y TOM CONNELLY

han regular

munities are

ant way to

nd security. Continued on page 10

Crime Prevention Through Environmental Design

ECHO journal | ISSUE THREE 2021

Crime Prevention Through Environmental Design Continued from page 9

Universally, crime prevention specialists have adopted the CPTED (Crime Prevention Through Environmental Design) model as an integral part of any crime prevention strategy. The model is based on three distinct strategies to reduce criminal desire: natural surveillance (visibility), access control (keep them out), and territoriality (we care about our property!). Like any crime prevention professional, communities and community managers can employ this model to protect their communities. Understanding which environmental systems should be considered and how they apply to a particular community’s crime prevention strategy is required. This article will examine the most critical systems to consider.

Perimeter and Access Controls This includes anything that restricts, limits, or directs access. In other words, access is effectively restricted to those with proper authority and business inside the perimeter. Fences, walls, security gates, and landscaping are just a few of the “things” used to secure the perimeter of a community or property. Consider also that the addition of multiple layers of perimeter controls results in significantly better perimeter security. As an extreme, envision a fortress surrounded by an outer fence, then a moat, then a thicket of thorn bushes, then a tall wall, and finally a heavy steel door, all of which must be crossed before entry occurs. Not too many unauthorized entries will occur there! 10

ISSUE THREE 2021 | ECHO journal

Limiting access to a property, buildings, or any other critical area to those with authorization is the goal. Perimeter systems, door locks, electronic access control systems, key control procedures, security doors, security windows, doors to secure parking garages, and any other appropriate systems should all be considered if they would reasonably restrict unauthorized access. When evaluating perimeter control systems, it is always a good practice to consider aesthetics and appearance before implementation. Access can be controlled without the property having the appearance of a fortress, and well-designed systems can help increase property values.

Landscaping Most communities pride themselves on the exterior appearance of their properties, and landscaping is a major part of that. As was already mentioned, landscaping can be a functional form of access control. A well-positioned hedge or a row of thorny rose bushes might effectively restrict or direct access to a location. But landscaping might also hinder safety and security; overgrown, poorly selected, or poorly placed plants could provide a concealment opportunity for unauthorized access and criminal activity or block the projection of otherwise well-placed lighting. When evaluating landscaping as a security component, it is important to assess plantings, trees, and hedges to ensure that they’re not overgrown, growing too close to elevated balconies and windows, or blocking light fixtures. To limit landscaping concealment opportunities, the general rule is that trees should be trimmed up at least six feet above ground level, while hedges and other ground-level landscaping should be no taller than three or four feet.

Lighting Properly designed and placed lighting enhances the physical appearance of the community while deterring criminal activity and enhancing safety. Lighting can be used to illuminate walkways, driveways, streets, parking lots, and dark areas throughout a community. Generally, criminals prefer to conduct their business where they won’t be detected. Many prefer the cover of darkness. Effective exterior lighting reduces the opportunity for criminal activity to occur. Effective lighting can also be used to reduce liability. Consider an uneven sidewalk or pathway in

Properly designed and placed lighting enhances the physical appearance of the community while deterring criminal activity and enhancing safety.

your community. Effective lighting in that area could reduce the potential for falls and other injuries. Also, effective lighting for driveways, streets, and parking lots could reduce the chance of vehicle collisions. In general, lighting fixtures need to be attractive, effective, operational, and functional. Recent advances in lighting technology should be considered when evaluating existing community lighting. Replacing old fixtures with new ones could provide the most economical and effective benefits.

should be evaluated and considered. Complex security technology systems should be professionally designed and tailored to meet the community’s needs and expectations. As an example, a video surveillance system might be used to monitor a few locations in one community and many Continued on page 12

Video Surveillance, Alarms & Other Technologies Security technologies change and improve frequently. Video surveillance systems, alarm systems, motion-sensing systems, and other emerging security technologies are getting better and more economical. Surveillance video technology has evolved rapidly over the past few years. Intruder alarm systems are commercially available through many retailers, have become relatively inexpensive, and are simple to install. Whether or not they’re perfect solutions for a particular community’s needs, these technologies ECHO journal | ISSUE THREE 2021

Crime Prevention Through Environmental Design Continued from page 11

locations in another. Remember too that there are potential downsides with technology that should be considered, like data storage and retention policies and invasion of privacy concerns.

Sign Placement Strategically placed signs can act as a deterrent to criminal activity and can be an aid in prosecuting criminal offenses. Trespass and private property warning signs at entrances to the community should be considered. If video surveillance systems are in use, signs advising of such should be conspicuously posted. Signs should be installed reminding residents to monitor open doors, like at parking garage entrances, to prevent unauthorized access. Signs designed to control the speed and flow of vehicular traffic can enhance safety. “Neighborhood Watch” signs may have some deterrence value. Effective sign placement is a visible way to show that the community is aware and watching.

ISSUE THREE 2021 | ECHO journal

Mail and Package Security Mail and package thefts are commonplace and usually lead to other crimes, like identity theft, credit card fraud, and general fraud. As a general rule, mail and packages should be delivered to a secure area or location. Some communities have a designated area for communal mail delivery, typically with interior delivery boxes or exterior kiosks. Oftentimes, packages and parcels are left on front porches or in common area lobbies. Designating relatively secure areas for mail and package deliveries is the primary goal. Interior locations are generally better than outdoor kiosks. The goal is to provide as much security for mail and packages as reasonably possible. In summary, strategic environmental modifications can help reduce the incidence of criminal activity in a community. Some systems might be relatively expensive, but others are more affordable. Addressing any of the abovementioned environmental components should have a preventive effect, and they were listed in no particular order of importance. Developing a plan using a combination

of environmental components adds additional layers of preventive effect, like the layers of an onion. Crime Prevention Through Environmental Design has been a standard strategy for crime prevention professionals for years; why not make it yours?

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ECHO journal | ISSUE THREE 2021

BY JEFF FARNSWORTH, CAMEx

The fundamental purpose of a common interest develop

is to maintain, preserve, and enhance the common components. So why are there so many

Continue

ISSUE THREE 2021 | ECHO journal

M A N A G I N G A N A S S O C I AT I O N A T WO - PA R T S E R I E S

x, CCAM-PM

pment

n area rules?

Community & Compliance

ed on page 16

ECHO journal | ISSUE THREE 2021

Community & Compliance Continued from page 15

Enforcing the rules and policies of a corporation that is also a community of friends and neighbors can be tricky for even the most experienced board members. Every owner is handed a copy of the Covenants, Conditions, and Restrictions (CC&Rs) when they purchase a home in the common interest development. This document is often full of legal jargon that may seem vague or unclear to the average homeowner. This may produce confusion and misunderstanding among the members, resulting in unintentional violations of the rules.

Creating rules and policies can be a good way to clarify the CC&Rs. Written clearly, they can make compliance easier for association members. It is important for the board of directors to consider the type of community they intend to nurture. What are the most important elements to enforce? When can the board be lenient, and when must they be strict? Rules and rule enforcement must be evenly applied, so the board should take time to carefully decide on what their objective is for the community and make this consistent with community values. It is not surprising that no two boards are alike. Boards have different ideas when it

Rules and rule enforcement must be evenly applied, so the board should take time to carefully decide on what their objective is for the community and make this consistent with community values.

ISSUE THREE 2021 | ECHO journal

comes to rule development and enforcement, and this is why all rules are to be written with community involvement, and the processes for enforcement and actions (i.e., warnings and fines) should be clear and concise and provide for reasonable justice. Clarifying homeowner versus association property maintenance responsibility is an excellent place to start. The board should work with legal counsel to create a maintenance matrix. Counsel will ensure that the matrix is consistent with the governing documents and will clarify which items are the responsibility of the association and which belong to the homeowners. A maintenance matrix is a cost-effective tool that will aid management in applying actions/maintenance in a consistent and fair way. It also provides a framework for the board to use in reviewing their management and their application of rules and processes. Moreover, since the matrix is developed with the advice of counsel, there will likely be fewer times when the board will need to ask for legal advice, since the matrix should help to clarify actions to be taken by management. The matrix can be generated at any time and is typically very inexpensive. Doing a matrix is also a great valueadd when the board revisits their governing documents in full. Aside from determining maintenance responsibility, the rules of the association should aim to create a consistent aesthetic that is appealing to most residents. When discussing rule enforcement with management, boards should consider which rules are the most important to preserving the value of the community. Depending on

the size of the development, management could spend most of their day on a site visit if they are attempting to document every violation applicable to the CC&Rs. This could result in extra billing or increased management fees due to the time needed for this process. It is also important to remember that reminder letters may have less impact if the membership is inundated with this type of communication. It is more effective to focus on the most egregious violations and, once they become controllable, shift to another area, and then another. As new owners move in or existing owners forget, this process may need to be repeated. Creating a consistent process for rule enforcement is key when defending claims of discrimination. Violation letters should be backed up with visual proof. Do not act on verbal complaints; ensure that proper documentation is obtained to substantiate the notice of violation. Many times, the manager or a board member will need to verify a complaint issued by a resident. Consider whether or not to include a photo with the letter or to retain it with the unit file. Any photos taken by a resident should not be taken from inside their home, as the inclusion of the photo may pit neighbor against neighbor. Whenever possible, a neutral party should substantiate the violation from the common area. Notice of violation should be sent as soon as possible. There should be an automated mechanism that tracks each violation and escalates unresolved issues to the next enforcement step. This allows each violation to follow the same process. Hearings

should be scheduled regularly. The board will need to determine when it is appropriate to work with an owner and when a fine may be warranted. The hearing process allows the board to listen to the resident’s point of view and allow for consideration of any special circumstances. Boards may want to consider including an owner response form with the violation letter so that the owner has an opportunity to respond in writing. This may decrease the need for hearings and give the board more information regarding corrective action being taken by the owner. If the owner fails to respond, then the association must move to the next step of holding a formal hearing in an attempt to achieve compliance. The board should examine the association’s fining policy to see if

adjustments will encourage better compliance. Every community is different in this respect. For some, an initial fine of $25 may be sufficient for gaining the member’s attention. In other communities, starting at $250 may be more effective. Extreme fines can be levied if the specific violation presents a concern to life or safety or has resulted in property damage. Working with the association’s legal counsel to create or revise enforcement and fining policies will ensure that the board’s disciplinary process is uniform and fair. Education is critical to nurturing a thriving community. The majority of rule violations occur because the resident simply does not know or does not understand that their action Continued on page 18

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ECHO journal | ISSUE THREE 2021

Community Compliance Continued from page 17

conflicts with the existing rules. Holding annual informational meetings for the members can provide a positive social event and increase understanding among the residents. Allowing for member feedback will enable the board to consider revisions to accommodate the ever-changing values of the community. Boards may want to consider allowing tenants or renters to attend these educational forums. While the owner is ultimately responsible for the behavior of their tenant, gaining the tenant’s compliance requires that they understand the rules of the community. If a unit is being rented, it is good practice to send the tenant a copy of the notice of violation as well as the owner. A board’s fiduciary duty to the association can be overwhelming. It may help to remember that,

ISSUE THREE 2021 | ECHO journal

although rules should not be broken, they can be changed. The association must work as a team to decide which tactics of enforcement best suit the community. They must find all the positive reasons why the rules protect property values and increase the quality of life for everyone. The rules must be applied universally, and the association must work with owners who communicate and care. No one likes being told what to do. If a resident understands

why rules are written and how compliance benefits the entire community, then compliance should improve for the good of all. Jeff Farnsworth, CAMEx, CCAM-PM, is President/ CEO Steward Property Services. He graduated from Humboldt State University and began working for Steward Property Services in 2006. Jeff and his wife Jennifer purchased the company from its founder, Mrs. Helen M. Loorya, in January 2017 and strive to maintain the high level of service for which their company is known.

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THE SELF-MANAGED HOA

omeowner associations, by their very nature, create an environment ripe for adversity and conflict. Membership is not voluntary. The obligation of the homeowner to pay assessments and conform to the provisions of the governing documents is not based on agreement with the board’s decisions, use of amenities, or satisfaction with how assessments are budgeted and spent. For homeowner rights advocates, this is a nightmare scenario. Homeowner association boards of directors have a duty to enforce the association’s governing documents. Furthermore, the enforcement of the governing documents must be “in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied” (Liebler v. Point Loma Tennis Club, 1995). Boards of directors can minimize the conflict and anxiety of enforcement by using a commonsense approach that includes the following. REVIEW KEY SECTIONS OF THE COVENANTS, CONDITIONS AND RESTRICTIONS, OR CC&RS. For the

most part, enforcement activity is focused on the following articles or sections of the association’s CC&Rs: (1) Use restrictions, (2) maintenance and repair obligations, (3) architectural review, and (4) rental restrictions. A review of these provisions will quickly inform the board of potential enforcement situations for which they need to plan or adopt clarifying rules. If the

BY JOHN CLIGNY, AMS, CAMEx, CCAM-HR

A Commonsense Approach to Governing Document Enforcement

association’s CC&Rs are more than 15 years old, an attorney should review these sections to determine if the restrictions are still applicable and legal. REVIEW PREVIOUSLY ADOPTED RULES AND REGULATIONS. A

review of current enforceable policies, rules, and regulations should be done annually. Doing this effectively may require the assistance of the HOA’s attorney. Boards are responsible to ensure that association rules are relevant, current, and consistent with federal, state, and local laws. Consider scheduling this review on the board’s governance calendar. Boards often adopt rules to address pressing concerns that are not clarified in the CC&Rs. They should review these rules periodically to make sure they are clear and make sense for the community.

REVIEW AND ADOPT A SCHEDULE OF FINES AND A PENALTY ASSESSMENT POLICY.

California Civil Code §5310(a) (8) requires boards to adopt and distribute to members annually a policy statement describing the association’s discipline policy and the schedule of fines that can be imposed for violations of the governing documents. This is not an option. This policy needs to be reviewed annually and revised as necessary. The policy may include information about how members can file complaints of violations, how the board will investigate the alleged violations, and what steps the board will take to notify members of infractions, provide remedy periods, and begin and escalate enforcement action. To be effective, the schedule of fines needs to be meaningful and reflect both the nature and potential consequences of the infraction. Continued on page 20 ECHO journal | ISSUE THREE 2021

THE SELF-MANAGED HOA Continued from page 19

USE DISCRETION WISELY AND COMMUNICATE IT CLEARLY TO

disputes. If these disputes become harassment, boards may have no choice but to seek legal counsel to protect themselves and association resources.

MEMBERS. Most association

CC&Rs grant discretion to boards of directors in the enforcement of the governing documents. The duty of enforcement is a board responsibility, not simply an obligation. The board’s decision to enforce provisions of the governing documents must be “in good faith.” It is not unusual for older CC&Rs to include use restrictions that are inconsistent with federal, state, and local laws or that are simply out of date or not applicable any longer. Enforcement policies should identify these problematic provisions and inform community members about how the board will respond to member complaints of infractions of these restrictions. BE WARY OF NEIGHBOR VS. NEIGHBOR COMPLAINTS OF

INVESTIGATE REPORTED INFRACTIONS PROMPTLY AND CLOSE THE LOOP. The

enforcement policy should include how the board will investigate reported infractions and when members can expect a response. Investigating alleged infractions lets members know that the board takes enforcement seriously and intends to handle complaints fairly and promptly. Details of the board’s investigation and determination need to be communicated to both the member who reported the infraction and the member in violation. Use newsletters and email bulletins to inform members about the types of recurring infractions, trends, and remedies. Consider adding a frequently asked questions (FAQ) section to the community website or portal.

INFRACTIONS. This is especially

true of nuisance complaints brought by one neighbor against another. California Civil Code §5975(a) and (b) establish that not only are an association’s governing documents enforceable by the board of directors, but homeowners have enforcement rights as well. Board members often fall prey to being sucked into neighbor-against-neighbor disputes that have little if anything to do with the best interests of the community and its members. Boards need to set clear limits on their involvement in these issues and establish written policies clarifying enforcement of nuisance allegations and the handling of neighbor-to-neighbor 20

ISSUE THREE 2021 | ECHO journal

USE FINES AND PENALTY ASSESSMENTS AS A LAST RESORT.

If an infraction is reoccurring or continuous and a member is non-responsive to the board’s enforcement policies, the board may have no alternative but to conduct a hearing, levy a fine, or seek injunctive relief or a court order. California Civil Code §5855 establishes the procedures for hearings, levying of penalty assessments, and notices of a board’s decision. Before the board can assess a fine, it must consider the disciplinary action in a hearing. Unless the member requests that the hearing be in executive session, it will be conducted in the open meeting

of the board [California Civil Code §5855(b)]. If the board is compelled by the evidence to levy a fine, it should be large enough to encourage compliance and discourage non-compliance. Fines are notoriously hard to collect and often lead to small-claimscourt actions or informal dispute resolutions. Board members must be committed to the time, expense, and legal implications that the fines and penalty assessment process may entail. Taking a commonsense approach to governing document enforcement allows boards of directors to be proactive instead of reactive. There is no doubt that enforcement is part of delivering good governance to homeowner associations. Clear governing document enforcement policies and procedures are meant to encourage and compel property homeowner compliance with standards and restrictions that are consistent with community values, quality of life, and property value enhancement. John Cligny, AMS, PCAM, CCAMHR, is a veteran portfolio manager and community association management executive. As co-founder of Association Consulting Group, John is a trusted advisor primarily focused on educating and advising community association board members on effective governance to promote a positive public opinion of homeowner associations and community management. John is a frequent speaker and panelist on a wide range of community association topics and issues.

to the Rescue! BY MARC DUNIA

alifornia is facing another drought emergency, and 2021 will be a particularly challenging year for landscapes and trees. With water restrictions looming throughout the state, landscapers, arborists, and property managers will need to be prepared for many changes in the way they manage their properties. Finding economical ways to reduce water usage and promote tree and plant health will be a top priority for everyone.

PROTECT SOILS Soils are the foundation of vulnerable root systems. Having healthy soil is the best defense against poor environmental conditions such as drought, hot dry winds, and sudden changes in the environment. Root systems need to be protected from excessive heat, evaporation, and soil compaction. Adding mulch is the easiest and least expensive way to combat these plant stressors and protect root systems.

BENEFITS OF MULCH Mulch is cost-effective and good for the soil. Adding three to six inches of an organic-based product can reduce watering needs by more than 25%. When mulch is added to a landscape, trees and plants greatly benefit. Watering needs are reduced. Microbial and biological activity are increased. Plant growth and development flourish. Other benefits of mulch include reduced weed control, a pleasing appearance, and a nice natural smell. Another benefit of mulch is that it helps to maintain soil moisture, which keeps the plant material hydrated and makes it less prone to damage in the event of a fire. (Incorporating rock or gravel around buildings and fence perimeters can also reduce fire risk.) Mulch provides a layer of insulation that protects roots from excessive heat. Continued on page 22

ECHO journal | ISSUE THREE 2021

Mulch to the Rescue Continued from page 21

Mulch will also help reduce erosion and water runoff. Once a tree or an area of landscape is mulched, water that is added will stay in place much better, with less evaporation. Medium-textured mulches are best for retaining moisture, so look for batches with one- to three-inch pieces. Large bark textures are too porous and fail to retain moisture, while fine-textured material packs down too much and prevents water from getting to the root systems.

TYPES OF MULCH There are many types of mulch that are beneficial and readily available. Products that contain high amounts of organic and biodegradable material are highly recommended. Many properties in the Bay Area have mulch drop locations, and tree companies typically provide free processed arbor-mulch that can be used as needed to help reduce watering on beautification projects. Arbor-mulch primarily contains a combination of chipped wood, bark, leaves, and twigs. These enhance the soil. There is also an assortment of decorative barks available that can enhance the look of a landscape. However, since bark mulch does not biodegrade as fast as arbor-mulch, it will be less beneficial for building a healthy soil. It is important to note that not all mulches are 22

ISSUE THREE 2021 | ECHO journal

suited for tree and plant enhancement. Some have excessive amounts of leaves, twigs, or even seeds. Some mulches are better than others, depending on the situation. Walnut mulches are good for preventing weeds but can also inhibit root development if placed around plants or trees. Pine tree mulches should not be used around certain pine tree species without being allowed to fully decompose first to kill harmful microbes. Also, the pine smell can attract beetles to a living tree and increase the possibility of beetle infestations. Unattractive mulches can often be aesthetically enhanced by raking and removing the unsightly portions of the load. There is no need to be alarmed if the load is not perfect; additional product can always be placed on top of the original mulch. Finally, it is important not to over-mulch. Mulch beds should not be deeper than seven inches. Three inches is normal in most scenarios, but this can vary depending on many factors, including the needs of the plants, the availability of material, and one’s budget.

LANDSCAPES ARE UNIQUE It is important to note that not all landscape situations are the same, and some difficult choices may need to be made depending on water restrictions in the area. It is important to research the upcoming watering restrictions in a community. In many areas,

watering of lawns may be prohibited and punished with hefty fines.

MULCH HELPS TREES IN DROUGHT Trees in irrigated lawn areas will need special attention this year. One of the biggest stressors for trees is when there is a drastic change in irrigation patterns. When a tree is in an area that is regularly watered, it becomes acclimated to that watering frequency. Even if the tree is considered droughttolerant, it will still be acclimated to the watering frequency of the lawn. The UC Extension Service in the hot region of Yuba County suggests adding as much as five to six inches of mulch around the tree’s dripline during a period of watering disruptions. Also, it is important to avoid placing mulch in contact with the tree trunk or main stem. It is recommended that trees with mulch be irrigated once a month. Soil conditions should be regularly monitored during these challenging times.

PRACTICAL HELP FOR TREE HEALTH Trees are a substantial contributor to HOA community property values and should be protected and properly cared for in periods of drought. According to Management Information Services/ ICMA, (International City/County Management Association), trees can add as much as 20% to property values. According to the Arbor Day Foundation, trees planted along streets in Portland, Oregon, increased home values by an average of $7,020 each. Additionally, according to the USDA Forest Service, properly placed trees around a building can reduce air conditioning costs by up to 30% and heating costs by 20%–50%.

A COMMUNITY TREE HEALTH REPORT Trees are a particularly important part of the community aesthetic and property values. To protect this asset, the HOA board can request a monthly report from its landscape contractor on the health of the trees. This is simple. It is easy to do and can emphasize the importance of tree management to the landscaper and crew. A regular report can help the board know when an arborist may be needed. A certified arborist is an expert in tree care trained to manage a community’s trees. Arborists will address problems reported in the regular landscaper tree reports and can professionally help to establish and maintain trees in the community. Although the need for an arborist may not be

acute, it is a good idea to develop a relationship with one, especially during a drought when an expert opinion can be particularly valuable in keeping the canopy healthy. It is suggested that an HOA invite one or more arborists onto the property from time to time to give a report on the condition of the trees and a proposal for tree care. An arborist will usually do this at no cost as part of their business development. It is suggested that three proposals from different companies be requested and reviewed by the landscape committee or board. The reports and proposals should be compared for consistency. The findings should be significantly the same, but if not, it is important to ask clarifying questions before deciding on next steps.

CIRCLE OF LIFE Experts recommend that fallen leaf debris remain below the tree. While it is not always possible, retaining leaves and small debris allows for decomposition that releases important nutrients into the soil. This contributes to the building of healthy soils, ecosystem balance, and improved plant health. Mulch can be placed on top of existing leaf and twig debris, since the debris has already begun the decomposition process and is better left alone. It is important to maintain a healthy ecosystem and not rake the forest unless absolutely necessary.

FINAL THOUGHTS Landscapers, biologists, master gardeners, certified arborists, and UC Extension professors recommend utilizing the benefits of mulch to help during times of environmental stress. As California navigates through this drought emergency, mulch should be used to economically reduce water usage and promote the overall health of landscapes. Trees will require special attention during the drought. To protect the interests of HOA communities, it is important to heed expert advice. Everyone wins and the environment is better for it. Marc Dunia has been in the tree care business for more than 24 years. He became an ISA Certified Arborist in 1997 (#WE-3975-1). Marc currently works for Cagwin & Dorward Landscape Company in Petaluma, which serves the San Francisco Bay Area and the Sacramento Metropolitan markets. At an early age Marc realized that he loved forests and the outdoors. He joined the California Conservation Corps and then was hired on a helitack crew based in Riverside to fight wildfires. He is a strong proponent of education and spends much of his time consulting and educating HOA boards.

ECHO journal | ISSUE THREE 2021

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HOA Repay is an assessment recovery company that emphasizes the desire to help homeowners associations quickly recover past due assessments while treating every homeowner with dignity and respect. At HOA Repay we are working to remove the stigma and the perception of collection services as a group of empty people hiding behind form letters and phones. We look at each individual situation and communicate with a desire to be helpful, to create win-win situations and to help maintain financially healthy communities for all members to enjoy. We focus on leveraging best practices that revolve around customer 24

ISSUE THREE 2021 | ECHO journal

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WATER MANAGEMENT There are many variables when it comes to managing and saving water; these include weather, health of the plant material, type of plant material and technology. Park West will implement a sitespecific plan for each property to ensure we are capturing maximum water savings. LANDSCAPE RENOVATION AND ENHANCEMENT Park West has been renovating and enhancing landscapes for over 30 years. With new technology and digital imaging we can provide our customers with several options to ensure that we are fulfilling the vision of their landscape while meeting their budgetary needs. PLANT HEALTH CARE Following an agronomic plan together with proactive monitoring of plants for insect or pathogen activity is key to keeping plants healthy. Complete soil analysis for pre-planting or for determining a treatment plan for existing plants is the basis of a healthy plant and the long-term protection of your investment. Toni Scurti (408) 228-2710 tscurti@parkwestinc.com www.parkwestinc.com

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ECHO journal | ISSUE THREE 2021

A Rule About Rules By Patricia Arnold

very community association needs to have (and follow faithfully) this critical rule about its rules: Be consistent and be non-selective. Well, OK, that sounds like two rules. But they’re related. Important note: “traditional rules” or “unwritten rules” cannot be enforced. The rules that are to be enforced must have been duly adopted and distributed to the membership; expecting members to follow the rules requires that they be provided with a written copy of the rules. If an association’s rule is to be enforced, it must be enforced in the same way every time (consistency), and it must be enforced for any unit or lot in the community that is not following that rule (non26

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selectiveness), absolutely without consideration for who owns the property, including board members or any other “revered” owners. Being non-selective and consistent when enforcing association rules is crucial to a community’s compliance program. The association manager or the board members responsible for enforcement of rules must have crystal-clear guidelines, and they must have authority to enforce regardless of who owns a property in the complex. Consistent communication must be clear, factual, fair, and always respectful. A courtesy notice, a violation notice, or an enforcement hearing notice must go to any individual

whose property is out of compliance, or any property whose residents are non-compliant. That might even include a member of the board (we are assuming here that a courtesy notice will be sufficient to restore conformance by a sitting board member).

Three-Step Notification Unless the behavior of a resident or the condition of a property in a community is egregiously out of compliance, the association should start small with a courtesy notice. Often owners and renters move into a community blissfully unaware of the rules (unintentionally or otherwise). The courtesy notice should describe the noncompliance, quote briefly (or refer to) the section in the association’s governing documents that explains the rule, and provide a reasonable date for compliance (typically ten to thirty days, depending on the issue and the association’s rules), after which the property will be reinspected. If the owner of the unit or lot has not made the correction by the deadline in the courtesy notice, a

second letter, a violation notice, should be sent out, referencing the courtesy notice, citing the rule that has been violated, and providing a reasonable time to correct or conform, usually with a shorter time frame – ten days, for instance. The violation notice should include what happens if the owner does not make the needed corrections by the deadline stated in the letter. The violation notice should also include (1) the rule/s broken; (2) the date a courtesy notice was sent, (3) advisement that the next steps, if needed, will include a hearing in executive session and the possibility of the levy of a fine, and (4) the association’s schedule of fines. (Every association’s governing documents should provide the authority to assess fines, and every association should have a schedule of fines.) If all efforts for getting an owner to bring the unit or lot into compliance have failed, a third letter goes out: the notice of a hearing in executive session with the board of directors. The third notice must repeat the basic information provided in the courtesy notice and the violation notice, along with the location, time, Continued on page 28

ECHO journal | ISSUE THREE 2021

A Rule About Rules Continued from page 27

and date of the hearing. A hard copy of the notice of the hearing should be mailed at least ten days in advance of the date of the hearing. The notice may also be sent via email if that owner has agreed, in writing, to receive communiqués from the association by electronic means. At all times, from the first courtesy notice to the actual hearing in executive session with the board of directors, the owner must be treated with respect, his/her privacy must be protected, and whatever is discussed in the executive session with the owner (or discussed by the board after the member has left the meeting) must remain confidential. Even if the owner “blabs” about the hearing, truthfully or otherwise, the board members must remain mum. That’s often a tough rule for board members to remember, but it is absolutely necessary for them to protect the confidentiality of the executive session, even if the owner does not. Let’s go back to the part about egregious violations. How is a board to know what constitutes “egregious” and how or why are these situations to be treated differently? The board may not be able to specifically define an egregious violation, but to borrow a phrase, they will know it when they see it. Egregious actions or conditions merit immediate attention from the board in an executive session. They are actions that simply cannot wait to be addressed in the time frame used for the three-notice process. The board needs to meet with the owner and develop an immediate plan for resolution or correction. The following are a couple of example scenarios: A. The Nighttime Swim Party: The teenage boy living in Building 5 was seen driving his Chevy pickup onto the common area by the swimming pool so he and his friends could picnic on the grounds. They used the bed of the pickup to step over the pool fence to swim after hours. The boy’s unit is a rental. The owner of the unit should be asked to attend a hearing to address the breach of parking rules and pool use rules and repairs to the landscaping. Should the board levy a fine or a series of fines for the violations? It will depend on the association’s policies and guidelines. It might also depend on the unit owner’s statements to the board. Should the board levy an assessment for reimbursement of the 28

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costs of landscape repairs (ruts in the lawn made by the truck’s wheels, damage to the shrubs and flower beds, etc.)? Yes. The board of directors scheduled a hearing in executive session to meet with the unit owner. The hearing letter was mailed to the owner two days following the violation and 17 days before the date of the hearing. B. The Shade Tree Mechanic: The owner of a home in a planned development was observed working on his vehicle in his assigned covered parking space. Reports were that he was changing the oil and relining the rear brakes. The association’s rules specifically limit vehicle repair to changing a flat tire or charging a battery, in either case to allow the vehicle to be driven to an off-site garage for mechanical service. The owner accidentally spilled most of the oil he had drained out of the vehicle. The spilled oil streamed down the private street and created a nasty mess. The owner immediately went to a store, purchased ten bags of clay-based cat litter, spread it over the oil spill, and then left with his family for a long weekend. The association had to hire a third party to clean up the mess. The board scheduled a hearing in executive session to address the breach of rules and the cost to clean up the mess the owner had created.

The Hearing Letter The hearing letter spells out why the owner is being asked to attend the hearing. The notice informs the owner of their right to have witnesses and/ or legal counsel present, but requires the owner to advise, at least ten days in advance, if they intend to have counsel or witnesses attend. If the renter in the unit is the “culprit,” it is still the owner who must answer to the board. The owner may not send the renter to the hearing in their place. The hearing letter informs the owner about the possibility of the levy of a monetary fine and includes (or refers to) the schedule of fines.

Let’s Go to the Hearing! Whether a board is following the three-notice process, or the hearing is scheduled immediately following an egregious action or condition, the process from beginning to end should be consistent and non-selective.

SEVEN STEPS TO A SUCCESSFUL BOARD/HOMEOWNER HEARING

SCENARIO: The board and the owner are seated at a table. The seating arrangement, preferably, will not have the entire board sitting on one side, staring down the lone owner on the other side. Boards must keep in mind that the owner is a neighbor and a fellow association member, not a mini-criminal. Civility and cordiality should remain the order of the day. STEP ONE: (a) The board president greets the owner and thanks them for attending the hearing and participating in the community’s governance process. (b) The board president reads the body of the letter sent to the owner asking them to attend the hearing [essentially, a review of the association’s known facts of the matter]. (c) The board president explains to the owner that they will now have an opportunity to present their side of the matter (usually the owner is given five minutes to speak uninterrupted); then board members will have an opportunity to ask clarifying questions; then the owner will be excused; then the board will weigh the facts presented and will inform the owner, in writing in approximately ten days’ time, what decisions the board has made regarding the matter, if a fine has been levied, if an assessment for reimbursement has been levied, and whatever other stipulations have been made. STEP TWO: The board members listen politely to the owner’s reply (no eye rolling, no audible sighs or snorts, no shouts of “liar, liar, pants on fire”). Nothing but polite, patient listening and, possibly, calm notetaking. STEP THREE: When approximately five minutes have passed (or less if the board president perceives that

the owner has finished their statement of response to the matter), the board president asks each board member in turn if there are any clarifying questions. The directors’ clarifying questions should not be veiled rebuttals of the owner’s statement. STEP FOUR: When there are no additional clarifying questions, the board president should thank the owner for attending the session and bid them good day or good evening. STEP FIVE: When the owner has left the meeting, the board should discuss the reason for the hearing and the owner’s response and then make motions and vote on the board’s findings in the matter. STEP SIX: The minutes should reflect who participated in the hearing (board members by name, owner by name, and the actions the board voted to take). A “blow-by-blow” account of the discussion does not need to be recorded. STEP SEVEN: A letter informing the owner about the outcome of the hearing is mailed via U.S. mail and may be sent electronically as well, if previously agreed to by the owner. Patricia Arnold is a career professional providing management services to Greater Bay Area common interest developments. Patricia currently manages medium to large scale communities. Patricia’s firm provides interim management, as well as board and committee leadership training and consulting to small and self-managed community residential and mixed-use associations. Arnold Management & Consulting is based in Windsor, CA.

ECHO journal | ISSUE THREE 2021

The Echo Legislative Tracking Report For more information, visit the HOA Advocacy section at the Echo website, www.echo-ca.org/article/hoa-advocacy/ the Echo perspective. Please email inquiries or comments to David Zepponi, CEO, at dzepponi@echo-ca.org. We are always grateful to hear from the membership.

2021 Legislation SB-391 AUTHOR: Min SUBJECT: Meetings and Teleconferencing Procedures During an Emergency STATUS: Assembly Floor Process. POSITION: Support – Sensible solution as learned from the COVID-19 pandemic. SUMMARY: This bill would establish alternative teleconferencing procedures for a board meeting or a meeting of the members if the common-interest development is in an area affected by a federal, state, or local emergency.

The 2021–2022 legislative session began slowly with a wait-and-see atmosphere in Sacramento as legislation pent up during the pandemic was prepared to move swiftly through Sacramento once it was safe. By February, things were back to normal, and bills were introduced in a flurry. Our March report placed several newly introduced bills relevant to common-interest developments (CIDs) on the tracking report. As of this writing, many bills are still very much alive and winding their way through the legislative process. These are listed on the tracking report. However, due to the delay in circulation of the Journal, our positions and/or the legislation may have changed by the time of this reading. For the most up-to-date information, please visit the official California legislative website at https://leginfo.legislature.ca.gov/faces/home.xhtml Legislation is also discussed from time to time in the Echo Insight e-newsletter. This free resource connects homeowners with the HOA industry from 30

ISSUE THREE 2021 | ECHO journal

SB-392 AUTHOR: Archuleta SUBJECT: Email Delivery of Documents STATUS: Assembly Floor Process. POSITION: Support – Requirement for association to have a website if more than 50 units could be a problem for some. Adds to cost of running the association. SUMMARY: This bill would allow associations to deliver specified documents by email unless a member opts out of email delivery. It requires members to provide their physical or email address annually, among other requirements. And it requires that associations with at least separate interest to maintain a website, with certain exceptions. It specifies that documents posted to the association website would satisfy the general delivery requirement. SB-432 AUTHOR: Wieckowski SUBJECT: Disqualification of Candidates due to term limits in governing documents. STATUS: Assembly Floor Process. POSITION: Support

SUMMARY: This bill disqualifies termed-out board members of CIDs from running for reelection and requires an individual who is appointed to count and tabulate votes in a CID election to meet specified requirements. AB-502 AUTHOR: Davies SUBJECT: Election by Acclamation STATUS: Senate. Judiciary Committee. POSITION: Support – Reasonably streamlines the election process and saves money for HOA. SUMMARY: This bill would allow commoninterest developments of any size to vote by acclamation. It would delete the requirement that the association include 6,000 or more units. And it would specify that this acclamation procedure applies notwithstanding any contrary provision in the governing documents of the common-interest development. AB-611 AUTHOR: Quirk-Silva SUBJECT: Confidential Addresses – Safe at Home Program exception. STATUS: Senate. Judiciary Committee. Hearing June 29, 2021. POSITION: Watch SUMMARY: When an association member is a participant in the Safe at Home program – an address confidentiality program that protects victims of violence, assault, stalking, trafficking, or abuse – this bill would require that the association use their designated substitute address, upon the member’s request. Additionally, it would require that the association withhold or redact information that would reveal the name and address of the Safe at Home participant in specified communications. AB-1101 AUTHOR: Irwin SUBJECT: Funds Transfers, Mandatory HOA Insurance, Limitations on Investments STATUS: Senate. Judiciary Committee. Committee Process. POSITION: Watch. AB-1101 has obvious advantages, mainly protecting less engaged communities and especially boards, and clarifying recently passed law. However, Echo continues to have concerns (especially for small associations). The legislation would mandate certain insurances which would add unnecessary or unwanted cost to the administration of the association. Furthermore, the bill would

require funds to be invested only in secure and insured accounts. This aspect of the legislation could force a community to lose money if the interest rates received were less than inflation rates. This bill would remove valuable financial tools for association boards. It is better that these limitations be placed in governing documents instead of in law and that the boards be entrusted with managing the association. On the other hand, AB-1101 would protect communities from poor management and give managing agents of CIDs the leverage to help HOA boards understand their fiduciary responsibilities. And in the unlikely situation of malfeasance or fraud, the legislation has protections and insurance in place to minimize the risk. The bill also addresses some needed technical amendments to existing law. There are several good, clarifying concepts in the bill; however, there are also some significant challenges that have driven us to a “watch” position. SUMMARY: This bill would require that certain association funds be deposited into a bank, savings association, or credit union with specific insurance. It also prohibits transfers of $10,000 or more without prior written approval from the board. And it requires that an association maintain specified coverage for itself and its managing agent or management company. SB-9 AUTHORS: Atkins, Caballero, Rubio, and Wiener SUBJECT: Land Use: Lot-Splitting and possible requirement for duplexes STATUS: Assembly. Re-referred to Committee on Appropriations. POSITION: Oppose unless amended. This bill could have a major negative impact on communities zoned for single-family residences and those neighborhoods with CC&Rs that restrict the community to singlefamily housing only. SUMMARY: This bill would allow lots to be split regardless of HOA governing documents, to make room for additional homes in the community. It would delegate ministerial (local government) approval for development of one or two-unit development (a duplex would be included in this definition). Furthermore, the language in the bill must be clarified to disallow duplexes if governing documents (CC&Rs) of an HOA preclude them. Clarification that the bill is not intended to affect HOAs is needed.

Continued on page 32 ECHO journal | ISSUE THREE 2021

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ISSUE THREE 2021 | ECHO journal

The Echo Legislative Tracking Report Continued from page 31

AB-1410 AUTHOR: Rodriguez SUBJECT: Restrictions on Rules Enforcement STATUS: Assembly. Housing and Community Development. Stalled in committee process. POSITION: Oppose – This bill is far-reaching, covers many issues. Not focused enough for good policy. SUMMARY: This bill would prohibit an association from restricting a homeowner’s right to rent or lease their separate interest, or any portion thereof. It would also extend, to the entire separate interest, a homeowner’s right to use their backyard for personal agriculture. It would further require every director and association employee to complete a course in ethics and harassment prevention. And it would prohibit any restrictions on discussions critical of the association. It would also prohibit the association from enforcement actions during certain specified conditions. And finally, it would require specific standards for evidence of rules violations and mandate that evidence be made available to the accused. SB-10 AUTHOR: Wiener SUBJECT: Land Use, Expedited Housing Development and Increased Density STATUS: Assembly. Re-referred to Committee on Local Government. POSITION: Oppose. Allows ministerial increase in housing density despite zoning for 10 units or fewer. The bill would void language in governing documents limiting development in CIDs. SUMMARY: Authorizes a city or county to pass an ordinance that is not subject to the California Environmental Quality Act (CEQA) to upzone any parcel for up to 10 units of residential density if the parcel is located in a transit-rich area or an urban infill site.

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Echo Journal – Issue 3 2021

Articles inside

Mulch to the Rescue

The Self-Managed Association A Commonsense Approach to Governing Document Enforcement

A Rule About Rules