Home Author: Jon Epsten

Epsten, APC Announces Retirement of Jon H. Epsten

Epsten, APC, a leading Community Association law firm in Southern California announces the retirement of Jon H. Epsten, CCAL, effective October 31, 2025. Jon Epsten will remain with Epsten, APC in an Of Counsel capacity commencing November 1, 2025.

Jon Epsten is the founding Shareholder of Epsten, APC, with an exemplary legal career spanning over 42 years, rightfully establishing him as one of the most prominent community association lawyers in California and the country handling both transactional and litigation matters. Jon, along with his partner Doug Grinnell and other team members, handled some of the largest construction defect cases in San Diego, from inception to the completion of repairs. A native San Diegan, Jon grew up in Point Loma, graduated from the University of San Diego and obtained his law degree from Thomas Jefferson School of Law, graduating with scholastic merit. Prior to attending law school, Jon was a community association manager which provided him with a deep first-hand knowledge and understanding of the challenges encountered by Epsten clients and their community association managers.

Mr. Epsten received many accolades in his rewarding career which notably include being a founding member of the California Association of Community Managers (CACM), member of the CACM Professional Standards Committee, receiving the CACM Lifetime Achievement Award and being appointed to the CACM faculty. Jon is also a fellow of the Community Associations Institute (CAI) College of Community Association Lawyers (CCAL). A former President of the San Diego and Greater Inland Empire Chapters of CAI, Jon has also been honored with the Distinguished Service Award by both CAI Chapters and has received the CAI Hall of Fame Award. He is a former co-chair of the Committee on Common Interests Subdivisions for the California State Bar, a former San Diego Superior Court Judge Pro Tem, a former Adjunct Professor at the California Western School of Law and has acted as a probation monitor for the State Bar. Additional honors include being named Super Lawyer by his peers, and Lawyer of the Year in San Diego Magazine.

“Jon’s contributions to the firm, the community association law industry, as well as the generations of community association attorneys he has mentored throughout his legal career are too many to mention. We are honored to have the opportunity to continue his legacy in the community association legal community,” said Kieran J. Purcell, Managing Shareholder.

“Having attended thousands of HOA Board Meetings throughout my career and working with countless professionals, it is now time for me to focus on spending time with my amazing wife, Mary, my children, and my five beautiful grandchildren,” said Jon.  “Looking at what the firm has become today, it is hard to believe that the firm was founded in the 1980’s with a starting capital contribution of $200.00.”

We thank Jon H. Epsten for his contributions to the firm, the California legal community and the community association industry.

Jon H. Epsten, Esq., CCAL

Attorneys Recognized in The Best Lawyers in America® 2026

The 32nd edition of The Best Lawyers in America® recognized Epsten, APC’s attorneys Jon H. Epsten, CCAL®, Shareholder and Founder of Epsten, APC, and attorney Mary M. Howell, CCAL®. Both attorneys were acknowledged for their contributions to the legal field in the practice of Community Association Law.

The Best Lawyers in America® awards are gathered through exhaustive peer-review surveys in which notable lawyers are evaluated and spotlighted for their legal excellence. In addition, this designation reflects the esteem earned by an attorney among their colleagues for their high standards of professionalism, proficiency, and unwavering ethical conduct.

Jon H. Epsten, Esq., CCAL
Shareholder

Mary M. Howell, Esq., CCAL
Of Counsel

New Year, New HOA Resolutions!

Jon H. Epsten, Esq., CCAL

Shareholder

858.527.0111
Email
Practices: Community Association Counsel | Construction & Remediation | Construction Defect Litigation | Civil Litigation | Commercial CID

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Kickstart the year with new goals and planning for a successful community management.

At our annual firm Legal Symposium, I was asked by a board member “what they could do differently in 2025 to make their life as a board member just a little easier?” So, I decided to place the answer to her question in the form of New Year’s resolutions. Get started early in the year with these Resolutions and hopefully 2025 will be a better year for both you and your association.

 

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Attorneys Recognized in The Best Lawyers in America® 2025

The 31st edition of The Best Lawyers in America® recognized Epsten, APC’s attorneys Jon H. Epsten, CCAL®, Shareholder and Founder of Epsten, APC, and attorney Mary M. Howell, CCAL®. Both attorneys were acknowledged for their contributions to the legal field in the practice of Community Association Law.

 The Best Lawyers in America® awards are gathered through exhaustive peer-review surveys in which notable lawyers are evaluated and spotlighted for their legal excellence. In addition, this designation reflects the esteem earned by an attorney among their colleagues for their high standards of professionalism, proficiency, and unwavering ethical conduct.

Mary M. Howell. Esq., CCAL

Jon H. Epsten, Esq. CCAL

What’s on your Agenda?

Over the last several months, several questions concerning agendas have resurfaced. For ease of reading, I have listed some of these questions below with a shortened version of my responses.

Please be on the lookout for practice tips on preparing agendas in future publications.

 

Question:

Why do we need an agenda?

 

 

If the Board intends to discuss a matter at a board meeting, the topic must be on the agenda. No worries. A procedure exists for adding certain items to the agenda (discussed below)

 

 

Question:

How much topic detail is necessary on the Open Meeting agenda?

 

 

The purpose of the agenda is to place attendees on notice as to what is going to be discussed during the meeting. It is beneficial to have a well-thought-out agenda. Boilerplate agendas are discouraged. Look at your agenda objectively from an uninformed owner’s perspective. If you read your agenda, you would know what the Board discussed at the meeting. Think of the agenda as a legal document that can be used as a tool to defend the Association. An agenda is also a tool to reference historical matters, such as when the Board approved or considered an item.

 

 

Question:

Should the Executive Session Agenda have the exact details as the Open Meeting Agenda?

 

 

The Board needs to have a clear understanding of what can be discussed in Executive Session (ref. Civil Code section 4935). The Executive Session agenda should tie into what is allowed to be addressed in the Executive Session (e.g., legal matters, personnel matters, member discipline, assessment payment plans, etc.) The Executive Session agenda will have less detail than other meeting agendas, as the items to be discussed may be deemed privileged. For example, if the Executive Session discussion covers collection matters, the owner’s name should be omitted. Similarly, discussions of ongoing or anticipated litigation should be noted in the agenda in general terms. It is a good practice to briefly consult with legal counsel if you have any questions on the description of items to be placed on the Executive Session agenda.

 

 

Question:

Who should prepare the agenda?

 

 

Oddly enough, the law contains little guidance in this matter. While “the board” is ultimately responsible for deciding what goes on the agenda, the law does not state that any particular director or officer may determine what goes on the agenda. Unless there are rational and substantive reasons for rejecting a request from a director to add an item to the agenda, a requested agenda item should be included. Note that the Board determines what to include on the agenda, and there is no procedure for owners to dictate to the Board the agenda for board meetings. In smaller communities, the agenda is typically prepared by the association manager. In larger communities, the agenda is generally prepared by the General Manager in conjunction with a designated board member. In either event, we suggest that a board member (typically the Board Secretary) be appointed to work with the association manager on agenda topics.

 

 

Question:

What do we do if an owner raises a topic outside the agenda at an Open Board Meeting?

 

 

The law allows the Board, among other things, to briefly respond to statements or questions posed by a person speaking at a meeting, ask a question for clarification, make brief announcements, and make a brief report on the Board’s activities. However, unless the item falls into one of the categories listed below, it cannot be added to the agenda for that board meeting.

 

 

Question:

Can we add items to the agenda after it has been published to the Owners?

 

Yes, under certain circumstances (Civil Code section 4930(d)(1)(2)(3)] such as an emergency, where immediate action is needed or where the item appeared on the agenda 30 calendar days before the action is taken and at a prior meeting the item was continued. A board motion and vote must be taken to add the item under the conditions mentioned above to the agenda, and we recommend the minutes of that meeting reflect the motion to add the item and the particular statutory provision that would allow the addition of the item.

 

If you have any questions, please contact a member of our Community Associations legal team.

Check It Off Your List

Jon H. Epsten, Esq., CCAL

Shareholder

858.527.0111
Email
Practices: Community Association Counsel | Construction & Remediation | Construction Defect Litigation | Civil Litigation | Commercial CID

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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!

Jon H. Epsten and Mary M. Howell Recognized in the 2024 Edition of The Best Lawyers in America

Epsten, APC is pleased to announce that Jon H. Epsten, CCAL®, Shareholder and Founder of Epsten, APC, and attorney Mary M. Howell, CCAL®, have been recognized in the 2024 edition of The Best Lawyers in America within the category of Community Association Law. Best Lawyers is a highly regarded peer-review publication, spotlighting the exemplars of legal excellence.

“We take pride in Jon and Mary’s remarkable accomplishments and lasting contributions to the Southern California Community Association industry”, said Susan M. Hawks McClintic, Managing Shareholder.”

This designation reflects the esteem earned by an attorney among its colleagues due to their high standards of professionalism, proficiency, and unwavering ethical conduct.

FDIC Insurance- Protecting the Association’s Bank Deposits

By Jon H. Epsten

Throughout my entire career as a community association attorney, boards of directors and homeowners have asked me, ‘why can’t we invest association funds in the stock market or other uninsured cash investments?’ This is a particularly hot topic for those associations that have large sums of cash in the bank.

The answer is simple: the association’s money belongs to the non-profit organization, not to the individual directors. The board acts as a fiduciary when managing the association funds. While some debate the industry’s position in conservatively investing association cash accounts in certificates of deposits (CDs), the association’s fiduciary duty is to minimize the risk of loss of the funds and conserve principal. By placing the funds in insured (FDIC/NCUA/SIPC) or government backed securities, the accounts are backed by the U.S. Government. This investment strategy is low risk but oftentimes has low returns. California Civil Code section 5380 is not a model of clarity on investing and protecting the association’s deposits, but suggests that the standard of care or best practices is to place association cash in FDIC insured accounts or with a guarantee corporation.

There seems to be some confusion among boards and even financial advisors on what constitutes an insured FDIC deposit. The Federal Insurance Corporation states that deposits are insured up to a least $250,000 per depositor, per FDIC insured bank, per ownership category. Thus, the FDIC insures deposits according to the ownership category in which the funds are insured and how the accounts are titled. To obtain the full benefit of FDIC insurance, the association should only have one account at one bank with no more than $250,000 in the account.

Multiple accounts under the same association tax identification number at one bank do not afford additional insurance, as the insured cap is $250,000 per ownership category (different rules may apply to other types of deposits e.g., trusts). If your association has over $250,000 in any single financial institution, how do you protect the money? You have two options:

1) Open up accounts at different FDIC (or other insured) banks and maintain a balance of no more than $250,000 in each account; and/or

2) Contact your financial institution to explore establishing a “sweep account.”

With Option 1 above, for example, if the association has $1,000,000 it would open up bank accounts in at least four different FDIC insured banks, making the funds fully FDIC insured. Most associations that have large sums of money will maintain a balance under $250,000 in each bank to insure earned interest that accrues in the account is also protected.

What is a “sweep account?”

Generally speaking, it is a bank or brokerage account that automatically transfers amounts exceeding a certain level into an interest-earning account at the close of each business day.  This may or may not be the right option for your association, but it is worth considering.  We recommend you discuss this option with your financial advisor or tax preparer to confirm it is a good option for your association.

Consider these practice pointers:

1) Always check to make sure the financial institution(s) your association uses has insured deposits through the FDIC, NCUA or SIPC;

2) Consult with a financial advisor, banker and your management company for assistance in investing and protecting funds. Your attorney is not your financial advisor;

3) Consider “laddering” your CD accounts into different banks;

4) Review your governing documents to verify if there are any restrictions on investing in association funds; and

5) It is Not Your Money! The way you may invest your personal funds may not be suitable for a non-profit mutual benefit corporation to invest its funds.

CAUTION! Flooring Penetrations May Result in Structural Changes

Many of our multi-story condominium communities are wood framed with wood flooring. Most high-rise communities are concrete structures with concrete flooring. Whether wood or concrete, flooring is an integral part of the structural integrity of the building.
The unfinished floors (i.e., slabs) provide lateral and vertical support, and are intended to be load bearing. A floor may also provide sound attenuation and may even prevent smoke and fumes from entering units.
Over the years, many associations have unwittingly approved penetrations through the structural flooring without requiring an analysis of how such penetrations will affect the structural integrity of the building as a whole. When these issues are subsequently raised at meetings, I often hear comments from boards such as, “we have always allowed owners to…” cut into the floors to install wiring, add ventilation ducts or install plumbing.
I reached out to Professional Structural Engineer, Carl Josephson, on this topic and he offered the following insight:

“When a wood floor or beam is cut improperly, usually a sag will occur, if not immediately, then over time. The sag may be very noticeable or only slightly noticeable. There may be cracking in wall or ceiling finishes to alert someone that there is a problem. However, when a concrete floor slab is improperly cut or notched, there may be some cracking or floor sag, but many times there will not be any noticeable distress. Concrete can fail quickly and abruptly. The best thing to do is to avoid the problem in the first place by checking with a qualified engineer before cutting or notching any concrete slabs, beams, columns, or other component parts.  If you suspect you could have a problem it may be necessary to carefully examine the area in question, review the original drawings and calculations (if they are available), test the concrete using ground-penetrating radar or other non-destructive techniques, in the worst-case scenario, core the concrete and chip out and expose some of the reinforcing steel.”

The tragedy in Surfside, Florida is a grim reminder of the need for constant vigilance over building modifications which may impact the structure. Rumors abound as to the cause of the Champlain Tower failure. It is likely that there were multiple factors that came together to cause the collapse.
While we will allow the courts to weigh in on liability, one issue that has been a source of speculation is whether penetrations in the concrete floors caused by an owner’s improvements was one of the contributing causes to the disaster. We have seen occasions where owners have requested floor penetrations and the retained structural engineer has responded, “no penetrations should be allowed, or the size of the penetrations should be modified.” On occasion, the risk of accidently cutting into the slab and damaging the post tension cables was a risk the board was unwilling to take.

So, what is the take away?

When an architectural application is received or when floor penetrations are noted, the affected area should be evaluated to determine whether any floor penetrations could affect the structural integrity of the building. Spending a few dollars now with licensed engineers may prevent a serious problem down the road.