New HUD Policy: Applications to Associations for Service & Support Animals

In January 2020, HUD issued a new statement of policy regarding applications to associations for service and emotional support animals.
This new policy states that use of a mandatory form, as well as a requirement that the physician (or other health care professional) attest to the disability and the necessity of the animal under penalty of perjury are condemned by this new policy.
PLEASE NOTE that both of these items were previously included in our Senior Resource Manual (Appendix K). Therefore, if you have a copy of our Senior Resource Manual (or have a copy of this form as a standalone document), it is important to discontinue to use this form immediately and contact us for more information.
If you have a reasonable accommodation or modification policy, we suggest contacting us or your current legal counsel to review it for consistency with current law.

Sign, Sign, Everywhere a Political Sign

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By Kieran J. Purcell, Esq.

As the 2020 political season gears up it is not uncommon to see political signs popping up in community associations which often leads to questions like: “Do homeowners have the right to display political signs?” “If so, where can they post political signs? “How soon after the election can we make them take down their signs?”  Chances are your association’s governing documents have a sign provision, and the city or county your association is located in likely has an ordinance governing political signs too.  However, the answers to these questions are found in your association’s governing documents and/or the California Civil Code.  Spoiler alert-you may not like the answers.

An Association May Prohibit an Owner From Posting Political Signs in the Common Area, But Not On or In Their Separate Interest Property. Generally, an association’s CC&Rs provide its board of directors has the sole and exclusive right manage and control the common area.  Some CC&Rs may also provide no signs may be erected or displayed in the common area without permission from the board. Or the CC&Rs may allow specific signs, e.g. one (1) sign of customary and reasonable dimensions offering a condominium for sale or lease.  If so, that means the board does not have to allow an owner to put political signs on the common area, right? And if an owner does place a political sign in the common area and refuses to timely remove it, the association can remove it, right? The answer to both questions is yes. Here’s why.

Civil Code section 4710 provides:

(a) The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.

(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.

(c) An association may prohibit noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than 15 square feet in size.

Therefore, a homeowner may post political sign(s) not larger than nine (9) square feet, made of the statutorily permitted materials in or on his or her separate interest property, but Civil Code section 4710 does not grant a homeowner the right to post signs-political in nature or otherwise-in the common area.

How Long Can a Political Sign Be Displayed Before/After An Election?  While CC&Rs rarely contain similar provisions, it would be reasonable for an association to adopt a rule with similar time limitations for owners to post political signs within their association, right?  Maybe. Many cities and counties have ordinances establishing time limits for when political signs may be posted, e.g. ninety (90) days before, and ten (10) days, after an election.  Civil Code section 4710 allows an association to prohibit the posting or displaying of noncommercial signs on an owner’s separate interest if the posting or display would violate a local, state, or federal law. Consequently, an association may be able to adopt rules which mirror the same time limitations set out in local ordinances.

Okay, So We Have To Let Someone Post a Political Sign, But Just One Right?

Maybe.  Civil Code section 4710(a) says governing documents may not prohibit noncommercial signs, posters, flags or banners, plural.  Unless prohibiting the sign(s), etc. protects public health or safety or if the posting or display would violate a local, state, or federal law.  Some examples of this would be: (a) if an owner displayed so many flags close to the street it impaired drivers from seeing other cars, (b) the city requires a permit for a flag pole over a certain height and the owner has no permit, or (c) the city limits how many signs can be displayed at one time on private property.

Census Taker Access

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By Jacquelyn E. Quinn, Esq.

It’s almost time for the 2020 Census to begin and associations may find census takers seeking access to the community or information regarding its occupants.  Households will receive an invitation to respond to the 2020 Census between March 12-20. If a household does not respond to the 2020 Census, a census taker may follow up in person to collect their response. This will occur between May-July.

Then comes the question – must associations grant census takers access to the community to gather information from occupants?  In short, yes.

13 U.S. Code Section 223 provides:

Whoever, being the owner, proprietor, manager, superintendent, or agent of any hotel, apartment house, boarding or lodging house, tenement, or other building, refuses or willfully neglects, when requested . . . to furnish the names of the occupants . . . or to give free ingress thereto and egress therefrom to any duly accredited [census taker] . . . shall be fined not more than $500.

An association is required to cooperate with census takers and cannot deny access into the community or giving the names of the occupants of the premises to any census taker who has shown proper identification.  Failure to grant access to the community or furnish names of occupants requested by a census taker may result in substantial fines.  The association may utilize whatever security measures it has in place (e.g., call resident and announce visitor).  It will be up to an individual resident if they choose to open their door or not.

Associations can and should require evidence that the person is an official census taker.  All census takers will be issued a census badge, which includes their name, photograph, Department of Commerce watermark, and an expiration date. Community Association Managers, patrol staff, or homeowners may ask to see a census taker’s badge. When in doubt, contact the nearest Regional Census Center to verify a census taker’s status.

In order to comply with federal regulations, make sure your Community Association Managers, patrol staff, and gate and lobby attendants (if any) understand that access must be granted to census takers. They are allowed to knock on doors, ring doorbells, use call boxes, etc.  Also, census takers are within their rights to ask associations to verify occupancy information (e.g., name and address). While you’re not expected to supply the information immediately, you should provide the requested name and address within a reasonable amount of time.

Please be aware that there is no requirement to provide any information to a census taker over the phone.  If the association receives a phone call from a person claiming to be a census taker requesting occupancy information the association should not provide such information over the phone.

SB 323 and SB 754: Elections as of January 1, 2020

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This new law makes many changes to election laws, director qualification and records inspection and affects Civil Code §§ 5100, 5105, 5110, 5115, 5125, 5145, 5200 and 5910.  These changes include all of the following:

Timing and Distribution of Materials for Elections:

An election for the board of directors must be held at the end of each director’s expiring term and at minimum every four years.

  • At Least 90 Days Before the Election: Amend election rules (Section 5105(h))
  • 30 Days Before Deadline to Submit Nominees for a Director Seat: Give general notice of procedures and deadline for submitting a nomination for a Director seat (Section 5115(a)).
  • 30 Days Before Ballots are Distributed: Give membership general notice of the following (Section 5115(b)(1)-(4)):
    • The date, time and physical address where ballots are to be returned by mail or handed to inspector of elections.
    • The date, time, and location of the meeting at which ballots will be counted.
    • A list of all candidates who will appear on the ballot.
    • Prepare the candidate registration list and voter list and allow members to verify the accuracy of their information on both lists. (Section 5105(a)(7)). Any reported errors on the voter list must be corrected by the Inspector of Election within two business days.
  • 30 Days Before Election: Inspector of Election must deliver, or cause to be delivered, the following to each member (Section 5105(g)(4)):
    • The ballot(s).
    • A copy of the election operating rules. Election operating rules may also be delivered by posting them on internet website and providing members the website on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:___.”

Association Ability to Disqualify a Nominee for the Board:

An Association’s bylaws or election operating rules may only disqualify a nominee for the following reasons:

  • Nominee, if elected, would be serving on a Board at the same time as another person who holds a joint ownership interest in the same separate interest as the nominee and the other person is also a nominee for the current election or an incumbent director;
  • Nominee has been a member of the Association for less than one (1) year;
  • A nominee discloses, or the association is aware or becomes aware of, a past criminal conviction that would, if the nominee was elected, either prevent the association from purchasing the fidelity bond coverage required by Section 5806 or terminate the association’s existing fidelity bond coverage;
  • Nominee is not current in payment of regular and special assessments (does not include nonpayment of fines, fines renamed as assessments, collection charges, late charges, or costs levied by a third party). (If an Association requires a nominee be current in their payments, then it must also require a director be current in their payments.)  The nominee may not be disqualified for failure to be current in payment of regular and special assessments if either the following circumstances is true:
    • The person has paid the regular or special assessment under protest pursuant to Section 5658; or
    • The person has entered into a payment plan pursuant to Section 5665.

A nominee must be disqualified for not being a member of the Association at the time of the nomination.

An association shall not disqualify a person from nomination if the person has not been provided the opportunity to engage in internal dispute resolution.

If title to a separate interest parcel is held by a legal entity that is not a natural person, the governing authority of that legal entity shall have the power to appoint a natural person to be a member for purposes of being nominated as a candidate.

Election Operating Rules Must Include:

  • A prohibition on denying a ballot to a member for any reason other than not being a member at the time when ballots are distributed;
  • A prohibition on denying a ballot to a person with general power of attorney for a member; and
  • A requirement the inspector or inspectors of elections deliver, or cause to be delivered, at least 30 days before an election, to each member both of the ballot and a copy of the election rules. Delivery of the election operating rules may be accomplished by posting the election operating rules to an internet website and including the corresponding internet website address on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:” or Individual delivery.

Association Records:

  • Membership lists subject to inspection by members now include members’ email addresses.
  • “Association election materials” has been added to the definition of association records which must be retained by the Association. These materials include the returned ballots, signed voter envelopes (signed voter envelopes may be inspected but may not be copied), the voter list, voters to whom ballots were to be sent, proxies, and the candidate registration list.
  • The voter list must include the voter’s name, voting power, and either (a) the voter’s physical address of their separate interest, (b) the parcel number, or (c) both. The voter’s mailing address must also be listed if only the parcel number is used.

Inspector of Elections:

The inspector of elections may not be a person, business entity, or subdivision of a business entity that is employed or under contract to the association for any compensable services.  The election rules may no longer make an exception.

Election by Acclamation for Associations of 6,000 or More Units:

When the number of director nominees at the close of the nomination period is not more than the number of vacant director positions on the board, the director nominees may be considered elected by acclamation if all of the following is true:

  • The Association includes 6,000 or more units;
  • The association provided individual notice of the election and the procedure for nominating candidates at least 30 days before the close of nominations; and
  • The association permits all candidates to run if nominated, except those disqualified for not being a member of the association at the time of the nomination and those disqualified for other reasons specified in Civil Code Section 5100.

Legal Actions:

  • Existing law authorizes a member of an association to bring a civil action for declaratory or equitable relief for a violation of the election law requirements by the association within one year from the date the cause of action accrues. This new law sets the time limit to file the action at one year from the date that the inspector of elections notifies the board and membership of the election results or the date the cause of action accrues, whichever is later.
  • The new law requires the court, if a member establishes by a preponderance of the evidence that election provisions or operating rules were not complied with, to void the election results unless the association establishes, by a preponderance of the evidence, that the association’s noncompliance with the election provisions or operating rules did not affect the election results.
  • An association may not file a civil action regarding a dispute in which the member has requested dispute resolution unless the association has complied with internal dispute resolution procedures.

SB 616: New Law Blocking Bank Account Funds from Levy

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By Elisa M. Perez, Esq.

Under new California Code of Civil Procedure section 704.220, effective September 1, 2020, bank levies will be automatically exempt in the amount of California’s minimum basic standard of adequate care (“MBSAC”) for a family of four, which is currently set at $1,724.00.

This is the monthly amount necessary to provide a family of four with basic needs as established by the California Department of Social Services. As this amount is subject to increase annually with inflation, it could be higher once the new law takes effect next year.

The new exemption on bank levies limits a community association’s ability to collect on a money judgment because the first $1,724.00 in a judgment debtor’s bank funds would be completely protected from the levy, and only amounts above that figure would be made available for payment on a judgment.

The $1,724.00 automatic exemption applies per person, and not per account, so judgment debtors that are joint owners of a bank account could be entitled to double the amount of the automatic exemption.

Given this new law, it is now more important than ever for a Board to ensure it has information on how much funds a judgment debtor has in the bank before attempting a bank levy. Depending on the circumstances, a Board may want to narrowly focus on the bank account itself and authorize a bank account investigation, or it may want to take a broader approach and obtain information through a debtor’s examination, where the judgment debtor is called into court to testify about his or her finances.

Whatever route a Board chooses to take, it should work with its legal counsel for assistance in determining whether a bank levy would now be worthwhile.

ADU Q&A after AB 670

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By Jacquelyn E. Quinn, Esq.

Can my association prohibit Accessory Dwelling Units (“ADU”) or Junior Accessory Dwelling Units (“JADU”) construction?

If your association is a planned development, no.

If your association is a condominium project, for now, yes.

On January 1, 2020, Civil Code section 4751 (a new provision of the Common Interest Development Act) will take effect and will prohibit planned development associations from effectively prohibiting or “unreasonably” restricting the construction or use of an ADU or JADU on a lot zoned for single-family residential use. By contrast, condominium associations are permitted to prohibit the construction of an ADU or JADU.

Therefore, any restriction in the CC&Rs, rules and regulations, or any other governing document, of a planned development will be superseded by Section 4751.  For example, a requirement that garages must be used solely to park vehicles and may not be kept in a manner that interferes with the ability to park vehicles will no longer provide grounds for prohibiting the conversion of a garage to an ADU.

If you have any questions concerning whether your association is a planned development please contact your legal counsel.

What is an ADU?

An ADU is defined by California Government Code section 65852.2(j)(1) as an attached or detached residential dwelling unit located on the same legal lot as the proposed or existing single-family residence, which provides complete independent living facilities for one or more persons.  An ADU must have permanent provisions for living, sleeping, eating, cooking, and sanitation.

A detached ADU is most commonly a separately constructed structure in a back or side yard.  An attached ADU is often times an addition to the primary dwelling.  Garages, carports or existing accessory structures (e.g., pool houses or work sheds) located on the same legal lot as a single-family may also be converted to an ADU. In addition, an efficiency unit and a manufactured (i.e., mobile home) are also included in the definition of an ADU.

What is a JADU?

A JADU is defined by California Government Code section 65852.22 as a unit that is contained entirely within an existing primary single-family structure, and includes an existing bedroom. A JADU must not exceed five hundred (500) square feet. In addition, a JADU must include a separate entrance apart from the main entrance to the primary dwelling, and an interior entry to the main living area.

A JADU must include an efficiency kitchen, and may include separate sanitation facilities (i.e., a bathroom), or may share sanitation facilities with the existing dwelling.

What sorts of restrictions can a Board enforce against ADU construction?

Civil Code section 4751 allows an association to place “reasonable restrictions” on ADUs and JADUs. For purposes of section 4751, a “reasonable restriction” is one that does not unreasonably increase the cost to construct an ADU or JADU, or effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU or JADU consistent with Government Code sections 65852.2 or 65852.22.

The new law offers little guidance as to what sort of restrictions are “reasonable,” but the law does not require an association to follow the same exact standards that the city or county has adopted concerning ADUs or junior ADUs.  In our view, that leaves open the option for an association to adopt its own “reasonable restrictions” that may differ from or be more restrictive than those of local agencies.

Such “reasonable restrictions” may include requirements related to aesthetics and design of the new unit, submitting and receiving approval of an architectural application, size of the new unit, use of shared facilities in the community, and parking.

Can ADUs be rented?

Generally, yes.  The Legislature’s stated intent when adopting Section 4751 was to permit the rental of ADUs for a period of more than 30 days (e.g., no short-term rentals). Associations with rental restrictions in its CC&Rs may impose the same rental restrictions on ADUs. If an association does not currently have rental restriction in its CC&Rs it may not impose such rental restrictions on ADUs in the community without first amending its CC&Rs.

Also, effective January 1, 2020, local agencies may no longer impose a requirement that an ADU or primary dwelling be owner-occupied.  Therefore, a situation may arise where both the primary dwelling and ADU are occupied by non-owner residents. However, a requirement that either the primary dwelling or JADU be owner-occupied is still permitted.

Can ADUs be sold separately from the primary dwelling?

Generally, no.  Under the vast majority of circumstances, an ADU must never be sold separately from the primary dwelling.  However, local agencies may adopt an ordinance that allows a very limited and narrow exemption to this prohibition.  When a property (both ADU and primary dwelling) is built or developed by a qualified non-profit corporation to be sold to qualified low-income buyers for purposes of owner-occupancy only, a local agency may adopt an ordinance that allows the ADU to be sold or conveyed separately from the primary dwelling.  As a condition of the sale, the buyers of both dwellings must enter into a recorded tenancy in common agreement with provisions that ensure the property will be preserved as low-income housing and will be owner-occupied. This very limited exemption should not impact established communities.

What kind or size restrictions can be imposed on ADUs?

Local agencies may establish minimum and maximum unit size requirements for both attached and detached ADUs.  However, beginning January 1, 2020, local agencies may not establish a minimum square footage requirement that prohibits an efficiency unit or a maximum square footage requirement that is less than eight hundred and fifty (850) square feet, or one-thousand (1,000) square feet for an ADU that provides more than one (1) bedroom.

In addition, any other size requirement set by a local agency, (or size based up on a percentage of the primary dwelling, floor area ratio, open space, and minimum lot size) must allow for at least an eight hundred (800) square foot ADU that is at least sixteen (16) feet in height with four (4) foot side and rear year setbacks.

By definition, JADUs must not exceed five hundred (500) square feet.

What parking requirements may be imposed on ADUs?

Parking is a challenge for many associations even without ADU construction and may require request specific inquires to determine the best solutions.

Local agencies are permitted to require one parking space per ADU or per bedroom, whichever is less.  These spaces may be provided as tandem parking on a driveway.

However, a local agency may not impose parking requirements for an ADU when (1) the ADU is located with one-half mile walking distance of public transit; (2) the ADU is located within an architecturally and historically significant historic district; (3) the ADU is part of the primary residence or a permitted accessory structure; (4) on-street parking permits are required but not offered to the ADU occupant; and (5) a car share vehicle is located within one block of the ADU.

In addition, starting January 1, 2020, a local agency may not require that parking lost by conversion of a garage or carport to an ADU be replaced.

What are the next steps to manage ADU and JADU requests?

Section 4751 allows associations to adopt “reasonable restrictions” concerning ADU and JADU construction.  If your association is a planned development, we recommend you contact your legal counsel to discuss options and prepare ADU guidelines.  Once ADU guidelines have been prepared the Board will need to provide general notice of the proposed guidelines and allow for member comment pursuant to Civil Code section 4360.

Epsten, APC Announces New Name Effective January 1, 2020

Epsten, APC, one of the oldest and largest Southern California Community Association Law Firms, announces it will change its name to Epsten, APC effective January 1st, 2020. The decision to shorten the firm’s name honors it’s past while acknowledging how the firm has been largely recognized by most of the firm’s clients and colleagues since its inception.

There will be no changes in leadership or attorneys as a result of this change. It will be “Same firm. Same service. Same name – just shorter.”  It has always been the firm’s goal to foster a culture based on traditional professional values and service to its clients. This will not change. The firm practices law in an industry where trust, relationships, and excellence define success for its clients and itself.  The firm will continue to provide the same continuity and stability as it has for 33 years.

Managing Shareholders, Jon H. Epsten, Esq., CCAL and Susan M. Hawks McClintic, Esq., together, with fellow shareholders Kieran J. Purcell, Esq., Anne L. Rauch, Esq., Rian W. Jones, Esq. and Dea C. Franck, Esq. agree this new name will better position the firm for its next decade of growth.

Epsten, APC, soon to be Epsten, APC, is one of the largest, strongest teams of common interest development attorneys in the industry with a team of 24 attorneys and three offices in Southern California. The firm is known for its professionalism and quality as well as the reliable legal services it provides to its more than 1,900 community association and commercial common interest development clients.

Despite the new (shorter) name, it is business as usual for the firm as their team of attorneys and staff focus on the recent changes in legislation, to ensure their clients are prepared for the complex legal requirements also taking effect January 1, 2020 and prepare for their well-known and highly regarded Annual Legal Symposium later this year – in which their attorneys will educate more than 1,000 local community association managers and board members in San Diego and the Coachella Valley.

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Election Process Timeline (Effective January 1, 2020)

Now that SB 323 has passed… What do you need to do and when?

Your election process just got a lot more complicated – and, the truth is, calculating your important dates and deadlines to adhere to the new laws effective January 1st, is like trying to hit a moving target.
To assist our clients (beyond attending our Legal Symposium), we have compiled an Election Process Timeline to help you understand the laws,identify when you need to start planning your next election and to help you set your Association’s own election deadlines.

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AB 670: Accessory Dwelling Units (ADUs)

By Jacquelyn E. Quinn, Esq.

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In recent years, the California Legislature has enacted several laws aimed at limiting the authority of local agencies to restrict accessory dwelling units (“ADUs”) and junior ADUs and streamlining the construction of ADUs and junior ADUs.  Up until now, state law hasn’t addressed private restrictions on ADUs, such as in an association’s CC&Rs.

However, effective January 1, 2020, AB 670 adds section 4751 to the Common Interest Development Act that will prohibit associations from “unreasonably” restricting the construction of an ADU or junior ADU on a lot zoned for single-family residential use.  (An association’s governing documents may continue to prohibit the construction of an ADU on a lot zoned for multi-family residential use. )  The intent of the Legislature in passing this bill is to encourage the construction of ADUs or junior ADUs that are either owner-occupied or are used for rentals for longer than thirty (30) days.

An ADU, sometimes referred to as mother-in-law units or granny flats, is a dwelling unit designed to serve as independent living quarters for at least one person. These dwelling units can be both attached and detached from the primary dwelling unit. A junior ADU is simply a unit that is 500 square feet in size or less, attached to the home, and has entrances from within the primary dwelling unit as well as from outside.  A garage, carport or covered parking structure on the lot may also be converted to an ADU or junior ADU.

AB 670 makes any governing document void and unenforceable to the extent that it prohibits, or effectively prohibits, the construction or use of ADUs or junior ADUs.  However, AB 670 does allow an association to place “reasonable restrictions” on ADUs and junior ADUs in common interest developments, as long as the restrictions do not discourage or effectively prohibit ADU or junior ADU construction or unreasonably increase the cost to construct them.

Although the new law does not define what sort of restrictions are “reasonable,” the law does not require an association to follow the same exact standards that the city or county has adopted concerning ADUs or junior ADUs, leaving open the option for an association to adopt its own “reasonable restrictions” that may differ from those of local agencies.  Such “reasonable restrictions” may include requirements related to aesthetics and design of the new unit, submitting and receiving approval of an architectural application, size of the new unit, use of shared facilities in the community, and parking.

There are bound to be disagreements over what constitutes a “reasonable restriction.”  What constitutes a “reasonable restriction” for one association may not qualify as “reasonable” for another. Therefore, it is important for associations to conduct a diligent inquiry into what restrictions are truly reasonable for their community and members before adopting ADU guidelines for members to follow.

With respect to new provisions that local agencies must follow, sections 65852.2 and 65852.22 of the Government Code set forth specific standards that local agencies must follow in adopting local ordinances related to ADUs and junior ADUs.  For instance, local ordinances cannot establish a maximum square footage requirement for an ADU that is less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom.  The local ordinance also cannot require a property owner who built an ADU to occupy the primary home on the property or the ADU. In addition, a local ordinance may not impose a requirement to replace lost parking spaces somewhere else on the property when converting a garage to an ADU.  While an association may adopt ADU restrictions that differ from local regulations, it is important and helpful for associations to be aware of their city’s or county’s local ordinances concerning ADUs and the ways in which the association’s restrictions vary, as residents are bound to raise comparisons.

Membership & Voter List Opt-Out Form

Civil Code section 5200 currently requires associations to disclose membership names, property addresses, and mailing addresses to other members upon request unless a member opts-out of sharing their information.

A new law mandating the disclosure of member email addresses to requesting members will go into effect on January 1, 2020. As such, we have updated our “Disclosure of Member Information Opt-Out Form” template, which is available upon request.

Associations may send updated opt-out forms to their membership now in anticipation of the change in the law. After January 1, 2020, member email addresses on file with the association must be disclosed to requesting members unless a member completes and submits a form to the association opting-out of having their information shared.

Note: Some of our clients may already provide member email addresses to requesting members. For those clients, their current opt-out form may be adequate.