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Is My Mic On? Concerns Surrounding Recording Board Meetings

Rhonda R. Goldblatt, Esq.

Senior Attorney

858.527.0111
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Practice: Community Association Counsel

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Is My Mic On? Concerns Surrounding Recording Board Meetings

Association members may try to record board meetings. Such recording may even be surreptitious. However, there are concerns surrounding permitting the recording of board meetings of which boards and management should be aware.

First, recordings may serve as evidence in subsequent litigation. Association members who try to record board meetings may do so in order to compile such evidence to support their claim. Associations should think twice about fueling a member lawsuit for obvious reasons. A single stray remark may end up exposing an association to liability.

Second, those present at the meeting may be uncomfortable being recorded. A recording device may have a chilling effect on directors and management who are trying to conduct association business without worrying about the specter of potential future litigation.

The Davis-Stirling Act does not require board meetings to be recorded. California Penal Code section 632 in fact prohibits recording a confidential conversation without the consent of all parties. Subsection (a) of the statute provides in part:

A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

Boards may want to consider including a statement on meeting agendas that recording the meeting – via audio or video – is prohibited. Boards can also consider stating at the beginning of a meeting that recording is prohibited (and noting that statement in the meeting minutes). Doing so will help create a documentary record that any recording is nonconsensual per Section 632. This is important because under subsection (d) of the statute, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of Section 632 is not admissible in a lawsuit. 

Finally, it is worth pointing out that Section 632 does not apply to the use of hearing aids and similar devices for “persons afflicted with impaired hearing” for the purpose of overcoming the impairment to permit hearing sounds ordinarily audible to the human ear. This caveat essentially brings those with impaired hearing to equity, by allowing them to hear what others do. 

For additional advice on this subject, please reach out to your friendly community association counsel.

Welcome to the Wild Wild West: Community Associations and Social Media

Rhonda R. Goldblatt, Esq.

Senior Attorney

858.527.0111
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Practice: Community Association Counsel

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*Article originally published in CAI San Diego Community Insider Magazine, Spring 2025

While community association boards might view social media as a free, convenient means of disseminating information to the membership, social media use by associations can be fraught with potential stumbling blocks. Boards may in fact prefer to avoid using social media altogether given the concerns listed below. At the same time, Civil Code section 4515 limits associations’ ability to restrict individual homeowners’ use of social media to discuss association life. In that respect, associations may need to view individual homeowners’ use of social media from a live-and-let-live perspective.

Potential Concerns – Association Use of Social Media

      1. The Loose Canon: board members may lose their temper, reveal attorney-client privileged information, or otherwise inflame an already volatile dispute when posting or responding to homeowner comments on social media. Online content lives forever, even if subsequently deleted. Ill-considered board member comments can in turn attract defamation claims, sow division, and otherwise negatively affect the association.
      2. Constant Vigilance: association-run social media pages must be constantly monitored because negative, defamatory, or otherwise ill-advised content may be posted by homeowners, which the association may in turn need to regulate or delete. Homeowners may also post negative content about one another, leading to demands that the association delete such content by the targeted party, putting the association in a tough position. Homeowners may additionally choose to notify the association of important issues via social media rather than contacting management. The resulting need for constant monitoring can be time-consuming and expensive.
      3. Is This Covered?: association and board members’ online activities on social media may not be covered by association insurance policies. If an association is sued in connection with online activity, and the claim is not covered, any resulting liability could be financially devastating.

Civil Code Section 4515 and Homeowner Use of Social Media

If an association steers clear of social media, shouldn’t homeowners be required to do the same? Under the law, no. Civil Code section 4515(b) states governing documents shall not prohibit a member or resident of a common interest development from “using social media or other online resources to discuss any of the following, even if the content is critical of the association or its governance:”

      1. Development living;
      2. Association elections;
      3. Legislation;
      4. Election to public office;
      5. The initiative, referendum, or recall processes; or
      6. Any other issues of concern to members and residents.

Note that homeowners’ social media posts may be critical of the association; negativity, whether unfair or not, does not constitute grounds to regulate homeowner online activity. Further, “development living” and “any other issues of concern to members and residents” are so broad as to effectively serve as catch-all categories, allowing homeowners to freely post about most association-related topics.

So where does this leave community associations? Associations may do well to remember that one of the main purposes of common interest developments is to maintain the common areas. That is, associations serve physical needs (maintenance) in the real world, rather than playing a role online. Given that associations are also limited in regulating homeowner online activity, associations may want to steer clear of the Wild Wild West of social media entirely. Does an association really need to be on TikTok? As fun as it sounds, perhaps not.

Five Strategies for Better Community Association Communication

Rhonda R. Goldblatt, Esq.

Senior Attorney

858.527.0111
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Practice: Community Association Counsel

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Community associations benefit from an informed, educated membership. With that in mind, please find five strategies for improving community association communication below:

1. Check Your Calendar. Community associations are required to distribute various documents from time to time, including annual budgets, policy disclosures, ballots and more. Association governing documents also typically require holding various events, such as annual membership meetings, regular board meetings, and the like. Trying to keep track of it all can be dizzying. Therefore, it is helpful to calendar relevant deadlines and events in an automated, digital system, to help ensure that member communications go out on time.

2. Preferences Matter. Civil Code section 4041 requires associations to solicit members’ preferred delivery method for receiving certain notices on an annual basis. Members have the option of receiving notices via a mailing address and/or a valid email address. Members can also provide the contact information of their legal representative. Associations must in turn deliver certain notices in accordance with members’ preferred delivery method. Members’ entitlement to select their preferred delivery method, in conjunction with different distribution requirements for different types of notices (i.e., general versus individual delivery) can make life complicated for managers. Again, automation can help, from software programs that either track member preferences or allow those preferences to be logged and changed easily, to spreadsheets that keep member information organized. Associations can also regularly remind owners of their entitlement to receive association notices via email, which many members may prefer for ease of access and may in turn reduce the association’s administrative burden.

3. Be Wary of Social Media. Associations might view social media as an easy, low effort means of distributing information to members. However, if a social media platform allows members to comment and post content, associations may in turn be forced to constantly monitor that platform for divisive or defamatory content. Therefore, one-sided association communication mechanisms like email blasts and newsletters that do not allow members to reply all, post, or comment may be preferable.

4. Prioritize Appropriately. Members frequently communicate with their associations about various concerns, from maintenance issues to complaints about neighbors. It is not uncommon for a minority of members in a community to communicate a lot, sending the association emails, making telephone calls, and speaking at board meetings. However, boards have a fiduciary obligation to act in the best interests of the entire community, not just a single member. As such, while boards should listen carefully to member concerns, boards must also triage and address member concerns according to the needs of the entire community. That may mean other pressing needs take priority.

5. Delivery is Everything. Members sometimes send angry, volatile communications to association representatives, and it can be extremely tempting to respond in kind. However, written communication can last forever, and non-privileged correspondence can easily become an exhibit in a subsequent lawsuit. Therefore, it may be wise to pause before replying and imagine a judge or jury as the audience of any given communication rather than the actual recipient. Associations must be the adult in the room, and a professional, measured tone is always best.

Do Your Governing Documents Need a Refresh?

Rhonda R. Goldblatt, Esq.

Senior Attorney

858.527.0111
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Practice: Community Association Counsel

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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.  Board should keep in mind that restating these documents typically requires membership approval. Restated documents should also be prepared by a qualified attorney, and must be approved in a confidential vote, so the project can be relatively costly.  Below are some considerations 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 within 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 associations. 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 of and procedure for restating their governing documents. Everyone deserves a makeover sometimes!

 

All Things Enforcement: Board Basics (Part 2) on Rules and Enforcement

All Things Enforcement:

Follow Up to June 27, 2024 Board Basics (Part 2) webinar on Rules and Enforcement

Authors

Susan M. Hawks McClintic, Esq. CCAL Rhonda R. Goldblatt, Esq.

 

Continue reading All Things Enforcement: Board Basics (Part 2) on Rules and Enforcement →

Mastering the Architectural Review Process

By Rhonda R. Goldblatt, Esq.

Reviewing architectural applications is typically part of a community association manager’s bread and butter. However, the architectural review process can be fraught with stumbling blocks, and architectural disputes with homeowners can be drawn-out, expensive affairs. A few practice tips for processing architectural applications are listed below to help master the architectural review process:

1. The clock is ticking. An association’s declaration typically includes a deadline to respond to architectural applications, and may even provide that failing to respond by the deadline deems an application approved. Associations can consider calendaring response deadlines to ensure an application is timely processed.

Note that if an association’s declaration does not include a response deadline, that does not mean the association has unlimited time to respond. Civil Code section 4765 states an association’s architectural approval procedure “shall provide for prompt deadlines. The procedure shall state the maximum time for response to an application or a request for reconsideration by the board.” If an association’s declaration is silent on deadlines, boards can consider adopting architectural rules with that information.

2. Get familiar with Civil Code section 4765. Section 4765 includes other important standards, including the requirement to respond to an application in writing, and providing a written explanation as to why an application was disapproved, along with a description of the appeal process. The law also requires associations to make decisions on an application in good faith, and prohibits making unreasonable, arbitrary or capricious decisions. Further, associations must provide the membership with annual notice of the architectural review process.

3. Pay attention to the special cases. The Civil Code includes special standards for certain proposed improvements, including solar energy systems, electric vehicle (“EV”) charging stations, EV-dedicated TOU meters, accessory dwelling units (“ADUs”), and junior ADUs. Remember that the law prevails over an association’s governing documents in the event of conflict. Boards may want to consider adopting separate policies for processing these types of special applications to ensure compliance with the law.

4. Know thy governing documents. Associations must follow their own procedures, and may face liability for failing to do so. Adopting clear, concise procedures in the first place can help associations stay on the right side of the law. Boards can also consider asking their community association counsel for help drafting those procedures, and/or reviewing the procedures on a regular basis to ensure consistency with the law.

5. Keep a written record. Maintaining well-organized records of architectural decisions can help protect an association from liability in the event of a homeowner challenge. Relying on memory alone can lead to trouble. The members of a board or architectural committee can change, key witnesses can move away, memories fade, and managers can switch accounts.

When in doubt as to how to process an architectural application, remember that you can always consult your friendly community association counsel for assistance.

** This article was published on San Diego Community Insider Magazine – Spring 2024 Edition.

To Pickleball or Not to Pickleball? That is the Question

By Rhonda R. Goldblatt, Esq.

Pickleball is one of America’s fastest-growing sports.[1] This surge has, in turn, generated professional tournaments, corporate sponsors, and professional players. Many homeowners, eager for a new amenity and a new hobby, have asked their community associations to create pickleball courts. Pickleball courts are relatively easy and cheap to create, especially if an association has an existing tennis court.[2] But while many boards may leap at the chance to buy in to the pickleball craze and give residents a new way to exercise, associations should be wary of potential issues that can accompany the new game. Below are a few issues to consider.

 

  1. Insurance. Pickleball related injuries are projected to cost Americans up to $500 million this year alone.[3] Given the potential for injuries related to the sport, associations should consider consulting with a qualified insurance expert to confirm they have adequate coverage in the event of any pickleball-related incidents.
  2. Noise. Pickleball can be noisy, and can in turn generate complaints from nearby residents. Therefore, associations may want to consider establishing rules limiting play to certain hours of the day, and consulting with qualified experts regarding sound-mitigating measures.
  3. Authority under the Governing Documents. Depending on the cost of the project, the exact changes to be made, and the terms of the association’s governing documents, creating a pickleball court may constitute a capital improvement requiring membership approval. Boards should confirm they have authority under their governing documents before altering the common area. When in doubt, consult with a qualified community association attorney.
  4. Consider a Trial Run. Associations can consider adopting a rule allowing pickleball play at existing facilities for a set amount of time with a sunset provision – for example, for thirty days – as a trial run, to see how pickleball fits into the community. The board can then review any member feedback received, and decide how to proceed.

 

 

 

[1] https://www.npr.org/2022/02/19/1081257674/americas-fastest-growing-sport-pickleball

[2] https://usapickleball.org/what-is-pickleball/court-diagram/do-it-yourself-guidelines/

[3] https://nbc-2.com/news/sports/2023/07/19/pickleball-injuries-costing-400m-nationally-the-alarming-toll-on-players-health/#:~:text=The%20most%20common%20types%20of,alongside%20the%20game’s%20unprecedented%20growth.

The New Normal

 

By Rhonda R. Goldblatt, Esq.

We are now entering the third year of the COVID-19 pandemic. Summertime Is approaching, and with the new season comes questions regarding how associations should manage their common area recreational facilities during the current phase of the pandemic.

Governor Newsom declared a State of Emergency on March 4, 2020, quickly followed by a Stay at Home Order on March 19, 2020. The State of California and local municipalities began Issuing COVID-19 regulations soon after, including regulations, restricting gatherings, mandating mask-wearing, limiting the use of pools, gyms, and playgrounds, setting forth cleaning protocols, and more. These regulations often arrived and changed at rapid-fire pace. Association managers, like many Californians across a wide swath of Industries, struggled to keep up with the changes.

The COVID-19 regulations in place during the last two summers provided some sense of structure (albeit and often onerous and confusing one) as associations were required to follow the law. What other option was there?

Now, many COVID-19 regulations have been rolled back, but California’s State of Emergency remains in place. The pandemic, unfortunately continues, mutating into different strains that dominate the news and bring more uncertainty. We have not entirely returned to a pre-COVlD world, as much as we wish to do so. So how, to approach the upcoming summer?

Associations may consider doing the following:

Defer to the law. New governmental restrictions, such as mask mandates, may come into place in the event of new surges. Associations can consider adopting rules that mirror existing governmental restrictions verbatim in order to bolster the reasonableness of those rules. Or, associations can simply refer residents to the governmental regulations for a more hands-off approach.

Address clashes. At least anecdotally, it seems that confrontations are on the rise as Americans enter the third year of a difficult, stressful pandemic. Associations should Investigate and appropriately address any governing document violations, including nuisances, harassment violations, or hostile environment harassment based on a protected status.

Clean smarter. Hopefully, the longer the pandemic goes on, the more we learn about how COVID-19 and its mutations spread. Associations should rely on their cleaning and janitorial professionals regarding best practices for maintaining common area facilities in as reasonably safe a condition as possible.

Continue to rely on experts. Associations can and should continue to rely on qualified experts like cleaning professionals, legal counsel, and Insurance representatives to minimize the associations’ liability, Including with regard to managing the common area and holding meetings and events.

With these steps, associations can ready themselves for the upcoming summer, as we settle into the “new normal” of the post-shutdown world.

 

 

 

* This article was originally published in CAI San Diego  Community Insider  Magazine in the Summer  2022 edition and was adapted from the original article, The New Normal as authored by Rhonda R. Goldblatt, Esq.

Use of Association Technology by Members

By Rhonda R. Goldblatt, Esq.

 

  • Does your community have a media room?
  • Does your community offer computers for use by residents?

If so, this article is for you! Stay safe and ensure your community has a record of who is using association technology and how.

Logging into Association-Owned Devices

Some community associations allow residents to access the internet on association-owned devices, such as tablets or computers located in a community clubhouse or business center. However, it is important for such associations to consider implementing safeguards to keep residents accountable for their online activity and restricting accessing to certain websites and content, or in some unusual cases completely restricting access to the internet.

One method of monitoring and restricting access is requiring each resident to log in to association-owned devices using a unique, association-assigned username and password. This will make it easier for the association to track the activity of each resident, if needed. The association may also want to consider blocking specific residents from using its devices at all. For example, certain residents may be barred from accessing the internet as a result of prior criminal activities.

Our firm is not an expert in cybersecurity or information technology (“IT”). Therefore, we recommend consulting with a qualified expert regarding securing an association’s devices, implementing resident log-in requirements, restricting access to undesirable websites, etc. We also recommend consulting with association counsel regarding the type of digital safeguards each community is authorized to implement.

Finally, associations may want to consult with their insurance broker and legal counsel to ensure they’re adequately protected from potential liability in connection with a homeowner’s misuse of an association-owned device.

Here’s to (safely) surfing the Web!

Term Limits are Back in Vogue

By Rhonda R. Goldblatt, Esq.

Everyone has a change of heart sometimes, including, it seems, the California Legislature. By now, most people in the community association field are familiar with Senate Bill 323 (“SB 323”). SB 323 was chaptered into law in October 2019. It significantly amended Civil Code sections 5100, et seq., which govern community association elections. Among other things, SB 323 revised the law to only permit community associations to impose a few, specific qualifications on candidates running for an association’s board of directors. Term limits were not included among them, meaning that associations were effectively prohibited from disqualifying board candidates who had termed out.

That has now changed. The Governor signed Assembly Bill 502 (“AB 502”) into law in October 2021, which took effect on January 1, 2022. This new law added Section 5103 to the Civil Code, which permits elections by acclamation, provided certain requirements have been met. These requirements include:

(d) (1) The association permits all candidates to run if nominated, except for nominees disqualified for running as allowed or required pursuant to subdivisions (b) to (e), inclusive, of Section 5105.
(2) Notwithstanding paragraph (1), an association may disqualify a nominee if the person has served the maximum number of terms or sequential terms allowed by the association.
(3) If an association disqualifies a nominee pursuant to this subdivision, an association in its election rules shall also require a director to comply with the same requirements.

(Emphasis added.)

Section 5103(d)(2) effectively reintroduced the concept of permitting director term limits. Arguably, associations may now impose term limits on director candidates, so long as such term limit is clearly set forth in the association’s Election Rules.

This raises a question as to whether term limits only apply in elections by acclamation. It is curious that the Legislature reintroduced the concept of imposing term limits in the context of elections by acclamation, rather than simply stating that associations may impose this candidate qualification in all elections. Hopefully, the Legislature will clarify this issue with some clean up legislation in the coming years.

Another question is whether term limits in Bylaws are now enforceable again. We believe they likely are, but the association’s Election Rules will need to be amended accordingly.

Please reach out to your community association counsel if you have any questions regarding imposing term limits in your association’s board elections, the enforceability of term limits in Bylaws, or the procedure to amend Election Rules.