Providing an Effective Post-Hearing Notice of Discipline
This article is part two in the two-part series on holding effective disciplinary hearings. You noticed the hearing following the procedures in part one of this series, the board held the hearing, and “If the board imposes discipline on a member or imposes a monetary charge on the member for damage to common area and facilities,” you must now send a post-hearing notice of disciplinary action to ensure effective enforcement. (Civil Code section 5855(c).) Note, section 5585(c) does not require that the association send a post-hearing notice if the board imposes no disciplinary action, but it may nevertheless be a good idea for record-keeping purposes and as a simple courtesy to the member.
The post-hearing notice of disciplinary action (“Post-Hearing Notice” or “Notice”) includes fewer statutory requirements than the notice of hearing, but there are several important provisions the Notice should include to help ensure its enforceability.
Pursuant to Civil Code section 5855(c), a Post-Hearing Notice must be sent to the member within 15 days of the hearing date. The Notice must also notify the member of the board’s decision on imposing disciplinary action(s).
The Post-Hearing Notice should also include:
Date of the letter (the date should be the same as the date of mailing);
Record title owner’s correct name and mailing address;
We suggest pulling the deed for the property to confirm title.
Property address within the association;
The date and location the board held the hearing, along with the specific time the hearing convened;
The specific disciplinary action(s) to be imposed by the board after considering the evidence available to it (this is mandatory);
Examples: fines in the amount of x dollars, suspension recreational use privileges, removal of unauthorized architectural modifications by a date certain;
As with the notice of hearing, we suggest including the name of the document (e.g., Declaration, Rules) and the section(s) violated.
If applicable, a statement that fines may increase by x dollars or continue to be levied monthly without further hearings until the violation is remedied (this is only available if the governing documents provide for this and the violation is of an uninterrupted or continuing nature, e.g., an ongoing architectural violation);
If the hearing was for damage to common area or association property, state the amount of damages owed to the association and the due date in accordance with the governing documents; and
The effective date of any disciplinary action.
Although not required, some boards might find it helpful to also include:
A statement confirming who appeared and testified before the board (if no one appeared, state this);
A summary of the substance of the testimony of witnesses and the member(s) subject to the hearing; and
A list of the documents and other evidence the board reviewed in reaching its decision.
The Post-Hearing Notice must be delivered to the owner by either personal delivery or individual delivery pursuant to Civil Code section 4040. We suggest sending the Post-Hearing Notice by both first-class mail, postage prepaid and certified mail, return receipt requested. If the owner has requested the association send his or her notices to a secondary address, then the association must send the Notice by personal delivery or individual delivery to both addresses. (Civil Code sections 4040 and 5260).
The Notice may also include a proof of service. While proof of service is not required to enforce disciplinary measures, a sworn statement on mailing is evidence the notice was, in fact, sent. Any proof of service should be kept with the association’s copy of the Notice and not sent to the owner.
Following the procedures in our preceding notice of hearing article, along with the above post-hearing procedures, will help ensure effective and proper enforcement of the governing documents.
There is nothing simple about managing a common interest development (“CIDs”). The statutory duties (e.g., annual disclosures) and annual administrative duties (e.g. insurance) would be burdensome for any corporation; most CIDs are ill-equipped to handle this task without having a structure in place. Unlike most large business organizations, rarely do CIDs have a corporate compliance officer to monitor compliance with the laws and administrative obligations. To assist CID management and boards of directors, boards and management should consider developing checklists to use as tools for fulfilling fiscal and administrative duties, thereby reducing legal exposures.
Recently, I was selected to participate as a contributing author for CAI’s ’Best Practices for Community Association Maintenance‘ (available on our website or through the CAI Research Foundation, at no cost). In this publication, the contributors developed checklists as a tool for maintenance and repair obligations. The development of that publication further confirmed my belief that checklists are essential for the proper operation of any CID. Checklists are nothing new. While not directly equivalent to what I am suggesting, airline pilot’s pre-flight and landing checklists have been proven to reduce airplane accidents, as well as pre and post-surgery checklists have proven to reduce surgical complications – like leaving surgical instruments in body cavities and infection prevention. (reference: The Checklist Manifesto).
Checklists should be tailored specifically for your CID to cover such things as fiscal responsibilities (e.g., timing of the budget, audit, reserve study, annual financial disclosures) and administrative responsibilities (e.g., insurance reviews and renewals, yearly contract reviews, property inspections, performance reviews, policies and procedure review, board education). Tasks on the checklist should be assigned to a specific person or position. Additionally, each checklist should include calendar dates for task deadlines, which will help not only the CID running efficiently, but help prevent financial losses.
If you do not know where to start regarding the types of checklists needed or what to include on those checklists, do not fret! We have done much of the work for you! Click here to access a compilation of checklists tailored for boards and managers with the most significant statutory duties imposed on community associations. Check the box and get it done!
Generally, board members of common interest developments are volunteers dedicating their time, skills and energy to serve the communities within which they live. Indeed, without these director volunteers, community associations would be unable to properly function. Similarly, committee members are volunteers who work on specific projects within a community. Often, committee work is a valuable first experience which can entice a member to become more involved and to eventually run for the board. However, there is a steep learning curve upon entering the world of association governance.
In order to help board and committee members understand the association’s expectations for service, codes of conduct can be particularly helpful. Not only do codes of conduct codify association expectations, they can also serve to educate board and committee members and help minimize association liability. Boards might therefore consider adopting codes of conduct that cover the following topics, among others:
Prohibiting the acceptance of any gift, gratuity, favor, entertainment, loan, or any other item of monetary value by a board or committee member from a person who is seeking to obtain a contractual or other business or financial relationship with the association.
Clarifying that board and committee members may not engage in any writing, publishing, or speech that defames any other member of the board, committee, employee, or resident of the community.
Establishing that board and committee members may not knowingly misrepresent facts to the residents for the sole purpose of advancing a personal cause or influencing the residents.
Prohibiting board members from discussing sensitive and confidential matters discussed in executive session, outside of executive session, or with anyone who is not on the board (with the exception of management and association counsel).
Prohibiting board or committee members from seeking to have a contract implemented that has not been duly approved by the board.
Prohibiting board or committee member interference with an association contractor performing work.
Clarifying that board and committee members may not harass, threaten, or attempt through any means to control, instill fear or discriminate against any member of the Association, management company, service provider, or community resident.
Preventing interference by board and committee members with the system of management established by the board as a whole and the management company.
Reminding board members that they must operate as a board and do not have any individual authority unless it is specifically granted to them in writing by the board or the Association’s governing documents.
Often, codes of conduct may be adopted as rules of procedure by way of approval by the board at an open session meeting, rather than by following the rulemaking procedures spelled out in Civil Code section 4360. However, we encourage you to first speak with your association’s legal counsel to review your association’s governing documents and discuss your community’s particular needs prior to adopting such rules.
Enforceability of these codes of conduct is another important issue to consider when preparing draft rules. It is recommended that any code of conduct specifically list the consequences for a violation of the code of conduct. Reasonable penalties for violation might include: public or private censure by the board, removal of an officer title, and/or removal from committee service by the board. It is unlikely that violation of a code of conduct may result in unilateral removal of a board member by the board, but speak with your association counsel on this issue.
It can be challenging to amend your CC&Rs, especially when owner approval requirements are high. Some documents can require approval of up to 75% of all members before the CC&Rs can be amended. Absentee owners and voter apathy can further compound the challenge of getting enough owners to vote.
If your association has tried to amend your CC&Rs but has not been able to obtain the requisite approval, fret not, as there may be a way forward. Under California Civil Code section 4275, associations can file a petition with the state superior court to seek relief when the votes aren’t there. There are few statutory prerequisites to keep in mind:
The association must have held a proper vote, meaning the vote was conducted in accordance with the association’s governing documents and applicable laws;
At least a majority (over 50%) of all owners must have voted “yes” on the amendment; and
The association must have made a “reasonably diligent effort” to solicit votes from owners and be able to make a showing to the court that it has.
If these threshold requirements are met, the association can move forward with petitioning the court to approve the amendment based on the affirmative votes actually received. The petition papers filed with the court require a large amount of information and supporting documents and should be prepared by the association’s legal counsel to ensure all statutory requirements are met. For example, the petition must demonstrate to the court’s satisfaction that the amendment is reasonable and that all owners (and any other parties entitled to notice under the CC&Rs) were provided sufficient notice of the court proceedings.
During the petition process, owners have an opportunity file opposition papers with the court. But granting the petition is ultimately within the judge’s discretion, and even in the face of owner opposition, judges are generally quite willing to grant such petitions if the statutory requirements are met.
The petition process can take anywhere from three to six months, or longer, depending on the court’s schedule.
PRACTICE TIP: Since the petition to amend is essentially a lawsuit, the association should involve its legal counsel in the discussion as early as possible.
Assuming the court grants the petition, then the association can proceed with recording the CC&R amendment.
Finally, the court petition process can also be used for other governing documents, such as bylaws or articles of incorporations, under California Corporations Code Section 7515, and a request to amend CC&Rs and other governing documents can be filed together with the court in one streamlined petition.
Meetings are the primary mechanism for conducting business in common interest developments, so effective meetings are a key element in the health
Ineffective meetings in common interest developments, especially when addressing sensitive topics, can easily devolve into shouting matches, threats, and even news coverage. Fortunately, these meetings are rare. More common is apathy or frustration with how business is conducted, which results in very few homeowners attending association meetings, even when important topics are discussed. Whether the concern is a potentially volatile meeting or disinterest, there are ways to conduct meetings that are productive and beneficial for the community.
Community associations hold an annual membership meeting and board meetings at regular intervals throughout the year to conduct their business. Occasionally, special meetings of the members may be held to conduct a membership vote on matters other than the annual election of directors. California law and community association governing documents impose different requirements for board meetings and membership meetings, so it is important to be clear in the meeting notice and agenda about which type of meeting is being held.
For both board meetings and membership meetings, there are procedures and processes dictated by law and the community association’s governing documents related to notices and how to conduct business; these will be discussed below for each type of meeting. The primary sources of information for conducting meetings are in the association’s bylaws, the Common Interest Development Act beginning at Civil Code § 4900 for board meetings and § 5000 for member meetings, California Corporations Code beginning at § 7211 for board meetings and § 7510 for member meetings for incorporated associations, and California Corporations Code at § 18330 for unincorporated associations.
Beyond these requirements for meetings, there are some practices that can help make meetings more effective. Effective meetings can serve multiple purposes beyond just conducting business. They can create confidence in the board and a greater sense of community among the members. Ineffective meetings can lead to conflicts between the board members and the members of the community association.
Board Meetings
Board meetings are held for the purpose of conducting board business. The board president presides as the chairperson and is responsible for leading the board members through the agenda items and keeping the discussions focused on those agenda items. Board meetings are required to be open to attendance by the association members unless certain sensitive topics are to be discussed and statute allows for a closed-door conversation.
The first step in keeping board meetings productive and effective is to establish rules of order and decorum. Some of the rules will be different depending on whether one is a board member or an association member attending the meeting. Board meetings are for the board to conduct board business. Association members who are not on the board should be limited to observing the meetings, except during the designated association member comment periods.
While some of the rules should probably “go without saying,” they need to be said and should also be written down and read as a reminder to the attendees at the beginning of each meeting. The board may want to have copies of the rules readily available for board members and audience members. For an electronic meeting, the rules could be posted on a slide. These rules of decorum can include a reminder that members who are not on the board may only speak during the homeowner comment period unless specifically addressed by the board, that only one person may speak at a time, that all meeting attendees must refrain from interrupting speakers, and that speakers must stay on the topic of the agenda item being discussed. The chair of the meeting or another designated board member should enforce these rules so that all attendees maintain trust in the board and know that differing opinions may be presented and will be considered in a respectful, businesslike manner. Healthy associations are those that are open to new ideas and respectfully consider dissenting opinions.
The second step is to set the meeting agenda in advance. Common interest development board meetings must have an agenda per California Civil Code § 4920. The agenda must be posted with the meeting notice at least four days in advance of the board meeting, except in an emergency. For a meeting held solely in executive session, only two days’ notice is required. These timelines for notice of the meeting may be longer if required by the association’s governing documents.
The agenda can include time limits for each agenda item to keep the meeting moving, but flexibility should be allowed as long as the discussion remains productive and on topic. The board can adopt protocols for determining how a decision is made to extend a discussion beyond a designated time period. Options can include approval by a majority of a quorum of the board or approval by any two board members.
The third step is for the chair of the meeting to keep the meeting on topic and maintain the rules of order or decorum. The president usually acts as the chair of the meetings. As a side note, most bylaws define the roles of the board officers and list their duties. The bylaws also usually provide for the delegation of some of these duties to other board members or association management, as well as making provisions for assigning these duties to another officer in the absence of the assigned officer. It is very common for many of the administerial tasks (such as taking meeting minutes, posting meeting notices and agendas, creating financial documents, and other similar tasks) to be delegated to management representatives, with oversight by the officers and directors.
The chair of the meeting can keep the meeting moving forward by following the agenda and requiring that discussions remain focused on the agenda item being considered. A specific amount of time can be allotted to each agenda item and the time extended only by agreement of a majority of the directors’ present, to avoid “going in circles” on a topic without reaching a conclusion. If conversations tend to go on for longer than needed to adequately address agenda items, a motion can be made and approved by a majority of the board to discontinue discussion and call for a vote.
The chair of the meeting should also maintain decorum by ensuring that only one person at a time is speaking, that all speakers stay on the topic under discussion, and that any time limit for a topic is enforced unless extended by the board.
Board meetings are for conducting board business, and often owners/members not on the board will be limited to observing and making comments during one or more designated comment periods. At least one owner comment period is required by law at open session board meetings. The timing of this comment period can be designated by the board. The law does not address any time limits or set out any specific time during the meeting for owner comments.
Most commonly the comment period is at the beginning of the meeting, but some associations choose to allow comments for each agenda item as it arises on the agenda, and other associations only allow comments at the end of the meeting. The disadvantage of only allowing members to comment at the end of the meeting is that it does not allow the members to comment in advance of the board’s consideration of agenda items during the meeting. This seems to defeat one of the primary purposes of the owner comment period – namely, owner input on an agenda item prior to the board considering the item. So, a comment period should be allowed before the board conducts its business.
The board may set reasonable time limits for comments by individual owners as well as an overall time limit for owners’ comments. These time limits should be set by the board in advance of meetings and stated on the posted agenda for each meeting so members are informed of the time limits before the meeting. Typically, individual owner comments are limited to two to three minutes and the overall owner comment period to 15 minutes. These time limitations can vary depending on the size of the community and the number of owners who regularly attend board meetings.
The board may decide to extend these time limits for a particular meeting or topic if they believe that additional time is needed to allow individual owners sufficient opportunity to comment. This most commonly occurs when the board is considering a large project or a significant change in policies or procedures.
The board is not obligated to provide any response to owner comments, but it does promote community goodwill if easily answered questions are addressed and other comments, even negative ones, are acknowledged.
Membership Meetings
Membership meetings are not board meetings and are treated differently in the law than board meetings. Membership meetings are either annual meetings to hold the board election and conduct any other items of business set by the board in the notice and agenda for the meeting, or special meetings to address a specific topic.
Special meetings of the members can be called by the board or by a petition signed by association members. For incorporated associations, Corporations Code § 7510(e) provides that special meetings “for any lawful purpose” may be called by the board, by the board president or chairperson, by other persons specified in the bylaws (which is rare), or by 5 percent or more of the members. Some association bylaws set a higher percentage of the members required to call a special meeting. Legal counsel for the association should be consulted upon receipt of any member petition to determine if the meeting is properly called and whether the association’s governing documents may set a higher percentage of the members to call a special meeting than the 5 percent set by § 7510(e) noted above. The minimum requirements for members to call a special meeting for unincorporated associations should be set forth in the governing documents.
Membership meetings are held for the members to conduct business, primarily in the form of voting. The primary business conducted at most membership meetings is the election of directors at an annual membership meeting. Infrequently, special membership meetings are held for other types of votes, such as approval of capital improvement projects and document amendments.
Membership meetings are typically conducted by the board. The opportunity for members to speak at membership meetings is different than the opportunity to speak at board meetings as discussed above. Civil Code § 5000 requires that the board permit any member to speak at any membership meeting and allows the board to set a “reasonable time limit for all members to speak.” Section 5000 specifically references the overall time for members to speak and does not mention any per-person limitation, although a per-person time limit may be set in the meeting procedures. The agenda should include a designated time for homeowners’ comments.
Larger associations often ask members who wish to speak at a membership meeting to complete a form requesting to speak and identifying the agenda item or topic of the member’s comments, so the president or other chair of the meeting can call on those members who wish to speak in an orderly manner by topic. Smaller associations generally allow members to take turns speaking merely by raising their hand and being called on in turn by the chair of the meeting.
Civil Code § 5000 also requires that all membership meetings be conducted using some form of parliamentary procedure to maintain order and allow opinions to be voiced respectfully. This procedure should not be overly complicated and difficult to follow. The board does not need to adopt a one-hundred-page tome on parliamentary procedure. There are simplified forms of parliamentary procedure available that do not require interpretation by a professional parliamentarian. The goal of the procedure is to maintain decorum and ensure fairness to all members wishing to speak. The board should not censor statements (unless the statements are discriminatory, offensive, or inappropriate) or show favoritism or preferential treatment toward any individual members.
As with owner comments at board meetings, the board is not obligated to provide any response to owner comments, but it does promote community goodwill if easily answered questions are addressed and other comments, even negative ones, are acknowledged.
Conclusion
When association meetings are conducted in an orderly, calm manner, they are much more likely to be productive and create positive relationships in the community than if they are disorganized, unruly, and unproductive. Setting meeting procedures in advance and consistently enforcing the use of those procedures throughout the meeting will help set a positive tone for the interactions among the board members and association members. This positive tone can greatly benefit the community as a whole and lead to more productive, effective governance of the community.
Like many Californians, you may be so used to seeing “No Lifeguard on Duty” and “Caution” signs posted around public pools and spas that you just glance at the verbiage and do not give it a second thought. Like public pools and spas, common interest developments (CIDs) with pools and/or spas are required to post “No Lifeguard” and “Caution” signs pursuant to Sections 3120B.4 and 3120B.7 of the California Code of Regulations. The same is required for all other public pools and spas.
What CIDs may not be aware of is the sign verbiage required by Cal. Code Regs. Section 3120B.4 and 3120B.7 just a couple of years ago likely violated fair housing laws. CIDs were therefore stuck between their obligations to post the required pool/spa sign verbiage and avoid enforcing discriminatory rules; however, a 2019 update to Cal. Code Regs. Section 3120B.4 and 3120B (effective January 1, 2020) removed the discriminatory components.
Now, CIDs must not only change the sign verbiage accordingly, but they should also review their Pool and Spa Rules to ensure the language is not discriminatory.
Change in Required Sign Verbiage
Prior to the 2019 update, Cal. Code Regs. § 3120B.4 required “No Lifeguard” signs to state “NO LIFEGUARD ON DUTY” in addition to ”Children under the age of 14shall not use pool without a parent or adult guardian in attendance”. However, a US Discrict Court in California found that such restrictions discriminated against families wih children (protected by federal and state fair housing laws), in that it treated families with children differently and less favorably than adult-only households. (See United States v. Plaza Mobile Estates (2003).) After the 2019 update, the required verbiage changed to “NO LIFEGUARD ON DUTY” followed by “Children should not use pool without adult supervision”. Similarly, the “Caution” sign verbiage for spas changed from “Unsupervised use by children under the age of 14 isprohibited” to “Children should not use spa without adult supervision.” (See Cal. Code Regs. § 3120B.7 for additional required verbiage.) The amendments to both provisions removed reference to a specific age and altered the prohibitory language to mere suggestions.
What Should Your Community Do?
CIDs with pools and/or spas should update their “No Lifeguard on Duty” and “Caution” signs to reflect the current, non-discriminatory language in Code Regs. §§ 3120B.4 and 3120B.7.
In addition, they should review their Pool and Spa Rules to ensure they do not treat families with children more harshly than adult-only households.
PRACTICE TIP: Avoid any reference to specific ages or familial dynamics in your CID’s Pool and Spa Rules.
Although restrictive Pool and Spa Rules may be well intentioned, any such discriminatory language would only be acceptable if the CID could successfully articulate a compelling business necessity and the language is “the least restrictive means to achieve that end”. (Fair Housing Council v. Ayres,855 F. Supp. 315, 318-19 (C.D.Cal.1994).
Do you have questions regarding your Pool or Spa Rules? Our firm is happy to review or draft a new set of rules for your community. Please contact us.
Boards of directors of community associations frequently wonder at what point they should restate their association’s Bylaws and CC&Rs. Many associations have older, outdated governing documents that could use a complete overhaul. At the same time, restating these documents typically requires membership approval. Restated documents should also be prepared by a qualified attorney, and must be approved in a secret, double envelope vote, so the project can be relatively costly. Below are some recommendations for when to pursue a restatement:
When portions of the governing documents are unenforceable. Older documents may have been superseded since their adoption by subsequent case law and statutes, rendering certain provisions unenforceable. Boards may want to restate their governing documents to bring them current with existing law (and thereby making them enforceable once again).
When the documents no longer fit the community’s needs. Communities change over time. A set of CC&Rs recorded in the 1970s may no longer reflect the owners’ preferences with respect to parking arrangements, architectural styles and more. Older documents also may not address innovations like solar panels and electric vehicle charging stations. Further, the board may wish to amend the governing documents to empower the board to address a specific problem in the community.
When the documents include discriminatory provisions.Civil Code section 4225 requires boards to amend out any provisions in a governing document which discriminate on the basis of a protected status. Such an amendment does not require membership approval. However, once this has been accomplished, boards may want to consider pursuing a complete document overhaul (a restatement), which does require membership approval. Documents old enough to include discriminatory provisions are likely due for an update in many other respects as well.
When the documents are just confusing. Not all Bylaws and CC&Rs are made equal. Some are better written than others. If your documents create more confusion than clarity, because of inconsistent or vague language, it may be time for a refresh. This need may be especially pressing given that vague or inconsistent language can give rise to lawsuits, as homeowners insist on interpreting the documents in one manner, and the board another!
To better protect the association’s interests. Original governing documents are typically written by the community’s developer. As one might expect, these documents frequently protect the developer’s interests rather than the association’s. The board may want to consider restating the documents to provide the board with more expansive authority, and/or insert provisions designed to minimize the association’s and individual directors’ potential liability.
No matter your association’s goals, boards should consult their community association counsel regarding the timing and procedure of restating their governing documents. Everyone deserves a makeover sometimes!
Added to the Davis-Stirling Common Interest Development Act (“DSA”) by the California legislature in 2016 and further amended in 2021 and 2022, Civil Code section 4041 requires a common interest development association (“association”) to annually solicit the following information from owners: (1) the owner’s preferred method of delivery for receiving notices from the association, which includes the option of receiving notices at a mailing address and/or an email address; (2) an alternative or secondary method of delivery for receiving notices from the association, which includes the option of receiving notices at a mailing address and/or an email address; (3) the name, mailing address, and (if available) email address of the owner’s legal representative, if any, including any person with power of attorney or other person who can be contacted in the event of the owner’s extended absence from his/her separate interest; and (4) whether the owner’s separate interest is occupied by the owner, rented, developed but vacant, or undeveloped. (Civil Code § 4041(b).) Civil Code section 4041 also requires owners to provide written notice of this information to their association annually. (Civil Code § 4041(a)(1)-(4).)
The annual solicitation notice sent by an association must include a statement that owners are not required to provide the association with an email address and a simple method for how an owner can notify the association in writing if they would like to change their preferred delivery method for receiving notices from the Association. Associations are required to enter the information received from owners in the association’s books and records at least thirty (30) days prior to the association making its annual budget report and policy statement disclosure as required by Civil Code section 5300. (Civil Code § 4041(b).) If an owner fails to provide their association with their preferred delivery method, the last mailing address provided in writing to the association by the owner, or, if none, the owner’s property address within the association is the owner’s default preferred method of delivery. (Civil Code § 4041(c).)
Beginning January 1, 2023, associations are required to deliver documents using an owner’s preferred delivery method if such documents are required by law to be delivered via “individual” notice or “individual” delivery. (Civil Code § 4040(a)(1).) As noted above, if an association has no record of an owner’s preferred delivery method and the document must be sent by “individual” delivery, an association must mail the document to the owner’s address last shown in the association’s records. (Civil Code § 4040(a)(2).)
Also beginning January 1, 2023, associations must deliver copies of its annual budget report and policy statement disclosure as required by Civil Code section 5300 et seq., and copies of any and all assessment collection notices as required by Civil Code section 5650 et seq., including copies of any notice of default or other nonjudicial foreclosure related notice contemplated in Civil Code section 5710 to not only the owner’s preferred mailing and/or email address, but also to the owner’s secondary mailing and/or email address too, if one is identified by an owner. (Civil Code § 4040(b).)
It’s important to note that Civil Code § 4040(c) provides that an unrecorded governing document provision (e.g., a bylaw or rule provision), which details a specific method of delivery, does not constitute an agreement by the owners to that delivery method. In other words, if a rule or bylaw provision provides for a specific method of individual delivery that is contrary to an owner’s preferred delivery method, the association must use the owner’s preferred delivery method.
Consequently, boards and managers can no longer assume that an owner’s mailing address in the association is an owner’s preferred method of delivery. Rather the associations must confirm whether an owner has specified a preferred method of delivery before sending that owner documents from the association if those documents must be sent via individual delivery.
Parking requests to accommodate a disability bring about a particular set of issues and questions. What requests are reasonable? If the board deems a request reasonable, who pays for the accommodation, if a cost is involved? What if parking spots are so limited in the community that accommodating the request seems impossible? What to do?
When in receipt of an accommodation request, a board is strongly encouraged to engage in an interactive process and make a good faith effort to consider the following when deciding how to handle the request:
Does the requesting party have a qualifying disability?
If someone has a physical or mental impairment which substantially limits a major life activity like walking, talking, hearing, seeing, breathing, learning, performing manual tasks or caring for themselves, then federal law considers them disabled. State law offers broader protection; disability is defined as an impairment that makes performance of a major life activity “difficult.” If a requesting party’s disability is obvious, e.g., they use a wheelchair, then it could be considered discriminatory to ask for verification of the disability.
Does the requesting party have a disabled person placard or license plate?
Oftentimes, when requesting a parking accommodation the requesting party will have a disabled person placard from the DMV. Presuming the plate or placard is current and valid, then this should constitute sufficient verification of a disability related to use of a vehicle
Is the request reasonable?
Every community’s parking situation differs and so too will the reasonableness of a request for accommodation. One main factor to consider is whether the request is even possible. For example, if the requesting party asks for a parking space closer to their unit but there are no common area spaces closer to the unit, the board likely does not have the power under the governing documents to displace another owner from their deeded or assigned parking spot.
A board should also consider whether there is a causal link between the disability and the request for a parking accommodation. Not every disability impacts the use of a vehicle and parking. If a person with a mental disability requests a parking accommodation, it would be reasonable to request verification to identify the link between the request and the disability.
Another consideration is cost. Typically, granting parking variances have minimal costs to the community while physical modifications can become costly. If the cost to the association is minimal and the benefit to the disabled person is significant it will be difficult to argue that the request is not reasonable.
Is the request necessary to allow equal enjoyment of the community or just convenient?
A requesting party is not entitled to an accommodation if the accommodation is merely convenient, but they are entitled to a reasonable accommodation if the accommodation is necessary to allow them the equal use and enjoyment of their home or the common area facilities.
One federal case illustrates this point well: In Sporn v. Ocean Colony Condominium Ass’n. (D NJ 2001) 173 F.Supp.2d 244, a disabled owner sought and received permission to use a parking space closer to his unit, but Sporn refused to relinquish his assigned space despite the association’s parking rules requiring such transfer. Sporn argued that he needed the space for his guests. The Sporn court held, “an accommodation should not ‘extend a preference to handicapped residents [relative to other residents], as opposed to affording them equal opportunity'” and “accommodations that go beyond affording a handicapped tenant ‘an equal opportunity to use and enjoy a dwelling’ are not required …”(Citations omitted.) The association’s parking policy requiring the relinquishment of one’s deeded parking space granted the same rights to disabled tenants as it did to non-disabled residents. When plaintiff Sporn was asked to relinquish his parking space pursuant to the association’s parking policy, Sporn refused and when asked why he needed two spaces, Sporn did not offer any explanation related to the disability, but instead responded, “because during the summertime we couldn’t get any parking for any of our family that came down.” (Id.). This comment lead the Sporn court to determine that Sporn’s request for “reasonable accommodation” was really a request for accommodation coupled with a demand for special treatment.
Even if the board determines the requesting party is disabled and accommodation is necessary, unique concerns arise that are specific to parking accommodation requests:
Are common area disabled parking spots required by law/building code?
Not necessarily. While disabled parking spots are common in public accommodations (hotels, restaurants, grocery stores, etc.), if the community is not a public accommodation subject to the Americans with Disabilities Act and was built prior to building code regulations requiring disabled parking spaces, then the association likely does not need to convert any open parking spaces to disabled parking spaces. When asked, each community should review its conditional use permit and consult with a licensed contractor or architect familiar with the applicable building code. Moreover, construction of additional disabled parking spots is often impossible because there is limited space or a limited number of common area parking spaces.
What if there are no open common area spaces to provide?
An association is only required to accommodate a reasonable request to the extent possible. If, for example, there are no spaces closer to the requesting party’s residence or there is no way to convert an existing common area space to make it more accessible, then the association should engage in the interactive process with the requesting party to determine if there is any reasonable alternative which alleviates some of the requesting party’s concerns. Every community and disability is different, so it is best to consult with legal counsel if approval of a reasonable accommodation seems impossible.
Does the association have to help pay for the accommodation?
Maybe! Some accommodation requests include physical alterations to the parking lot – painting new lines, making and installing a “reserved” sign, etc. Such alterations might sound more like a reasonable modifications rather than accommodations. Owners are often responsible for the cost to install reasonable modifications if it benefits them individually. However, the courts have treated requests for parking spaces as requests for reasonable accommodations, making associations responsible for some costs. Providing a parking accommodation could include creating signage, repainting markings, redistributing spaces, or creating curb cuts. This list is not exhaustive and there is no clear law on how much expense is unreasonable.
Can a disabled resident allow their non-disabled guests to park in a spot afforded to them as an accommodation?
Yes. As mentioned above, disabled persons must be afforded equal enjoyment of the community. If an association would allow any other resident to have guests park in their assigned parking spot, then the association must also extend this right to disabled persons, even if their guests are not disabled.
The resident has a disabled parking placard and claim that they can park anywhere with the placard regardless of the rules. Is this true?
No, not necessarily. While a resident with a disabled parking placard or license plate may park in all disabled parking spaces, when parking on private property they are still subject to the reasonable rules of the community. For example, they may not park in a fire lane or in a manner that blocks the ingress and egress of other residents. Another example: if there is a limit to parking in a guest spot for more than 72 hours, this rule applies to all guest spots, including disabled parking spots. The disabled parking placard or plate does not give them the right to store their vehicle in a guest parking spot. However, we strongly encourage consulting with legal counsel before towing a vehicle with a disabled parking placard or plate.
Can the association explain to other inquiring residents why someone is receiving a special parking accommodation or variance?
No. The association must keep all information relating to someone’s disability confidential.
This area of law is complicated. A board should carefully consider each reasonable accommodation request and engage in the interactive process to avoid discrimination claims, even if there is limited parking in your community. When in doubt, contact your legal counsel.
Four Considerations Before Using Drones for Community Association Inspections
Drones, also known as unmanned aircraft systems, are nearly everywhere. Advances in technology have made drones smaller, cheaper, and easier to use, and therefore more accessible to average users. As drones become more accessible, community associations may wonder whether drones may be used to help conduct inspections of common area components. Drones can provide a host of benefits for associations including, but not limited to, lowered costs because inspections can be completed more quickly, fewer accidents in inspections, and better-quality documentation in the form of video footage. However, before moving forward with using drones for inspections, boards should contemplate the following considerations and consult with the association’s legal counsel.
First, laws are still developing in the drone realm. As of now, drones are primarily regulated by the Federal Aviation Administration (“FAA”). The FAA requires pilot certification, registration of drones, and a minimum age of pilots if the drone is used for commercial purposes. There are also strict requirements regarding speed and altitude. The state and municipalities may impose additional requirements. Associations should be sure to abide by all federal, state, and local requirements for drones.
Second, associations should craft appropriate policies regarding the use of drones. Since drones are a relatively new phenomenon, an association’s governing documents may not address the use of drones. Consultation with the association’s legal counsel is recommended to craft appropriate policies regarding the use of drones, including with respect to notice requirements for inspections.
Third, using drones for inspections of common area components may give rise to privacy concerns. In California, laws prohibit entering the airspace of another in order to capture an image or recording of that individual engaging in a private, personal or familial activity without permission. While an association may intend to use a drone for an inspection of a common area component only, the drone may inadvertently capture a private or family activity which could open the association up to liability. Rules and policies should be carefully tailored in order to protect the association from liability and owners from unintentional privacy intrusions. Consultation with legal counsel is also imperative with respect to addressing privacy concerns.
Fourth, since drone use is still a relatively new endeavor for associations, associations should be sure to consult with their insurance providers to make sure that the association’s policies cover claims arising out of the association’s use of drones.
While drones may be the wave of the future, associations should proceed with caution before using them for common area inspections. A careful and thorough examination of the considerations outlined above, coupled with consultation with association counsel and the association’s insurance professional, may help to protect associations from potential liability.
