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Dos and Don’ts When Regulating Political Campaign Signs

 

 

By Kieran J. Purcell, Esq.

 

 

As political races heat up, you may notice more political signs in the community, which leads to questions such as: Can homeowners display political signs? If so, where can they post them? Perhaps most importantly, how soon after the election can we make them take down their signs?  

You may find answers to these questions in your association’s governing documents, the California Civil Code, and local ordinances.  The bad news is that you may not like the answers.

News flash: An association has the authority to restrict the placement of political signs in the common areas, while owners are generally permitted to display them on their separate interest property. Typically, an association’s CC&Rs grant the board of directors exclusive control over the common areas, including the placement of signs. Some CC&Rs may state that no signs are allowed to be displayed in the common area without permission from the board.

Nevertheless, some CC&Rs allow specific signage. For example, placing one (1) sign that follows customary and reasonable dimensions promoting a condominium for sale or lease.

Consequently, does this mean a board has no say in determining whether an owner may put political signs in the common area? Additionally, if an owner does place a political sign in the common area but fails to remove it promptly the association can remove it, correct? The answer to the first question is NO, and the answer to the second question is YES. To learn more about this, read Civil Code Section 4710.

Summarizing Civil Code Section 4710 “in a nutshell,” a homeowner may post political sign(s) not larger than nine (9) square feet made of statutorily permitted materials in or on his or her separate interest property. However, Civil Code Section 4710 does not grant a homeowner the right to post signs in the common area.

Supplemental Read >> Learn more about political signs, implications, and what associations can do about it here!

How long can a political sign be displayed before and after an election? 

While CC&Rs rarely address time limitations for signs, many cities and counties have ordinances that specify time ranges during which political signs may be posted; for example, ninety (90) days before and ten (10) days after an election. It would be reasonable for an association to adopt a rule with similar time limitations for owners to post political signs within their association. Civil Code Section 4710 permits an association to restrict posting noncommercial signs on an owner’s separate interest property if it violates any applicable laws. Therefore, if an association would like to impose time limitations, an association may want to consider adopting rules that align with the time limitations set out in local ordinances with the help of legal counsel.

Okay, we have to let someone post a political sign. But just one! Right?

Maybe. Civil Code Section 4710(a) says governing documents may not prohibit noncommercial signs, posters, flags, or banners, all plural.  Unless prohibiting the sign(s) serve(s) to protect public health or safety or if the posting or display violates a local, state, or federal law.  For instance, (a) if an owner were to display an excessive number of flags near the street, obstructing drivers’ view of other vehicles, (b) if the city mandates a permit for a flagpole of a specific height and the owner has no permit, or (c) if the city imposes restrictions on the number of signs allowed on private property at any given time.

Needless to say, it is essential to carefully review an association’s CC&Rs before drafting or revising rules governing signs’ displayed in your communities and properties. If we can assist you in this process, please do not hesitate to contact us.

Have you signed up for our upcoming 2024 Community Association Legal Symposium this Fall? Click here for more information or to register.

 

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 →

10 Things Community Association Boards Are Doing Right

Pejman D. Kharrazian, Esq.

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Practices: Community Association Counsel | Commercial CID | Civil Litigation

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Community associations play a crucial role in maintaining and enhancing the quality of life within residential communities. In California, where community associations are prevalent, boards are implementing innovative and effective strategies to ensure their neighborhoods thrive.  Here are the top ten things community association boards are doing right:

  1. Promoting Sustainability

Many community association boards are prioritizing eco-friendly initiatives. This includes installing solar panels on common area buildings, installing electric vehicle charging stations, promoting water conservation through drought-resistant landscaping, and encouraging recycling and composting programs. These efforts help the environment and also reduce costs.

  1. Enhancing Communication

Effective communication is key to a well-functioning community. Good communication helps build trust and fosters a sense of community. But remember that some things can not be shared with the membership, such as private, confidential, or privileged information! Leveraging technology and digital tools can also enhance communications.

  1. Fostering Community Engagement

To create a vibrant and cohesive community, many community association boards organize regular social events, such as block parties, holiday celebrations, and community clean-up days. These activities provide residents with opportunities to connect with their neighbors and build relationships. Engagement also helps recruit volunteers, such as committee members, and create a volunteer pipeline and succession plan for engaging future volunteer board members.

  1. Promoting Emergency Preparedness

Community association boards are developing comprehensive emergency preparedness plans, including drills, community workshops, and the distribution of emergency supply kits to residents, ensuring the community is ready for natural disasters like wildfires and earthquakes.

  1. Maintaining Property Values

Many boards are proactive in ensuring that common areas, landscaping, and facilities are well-maintained. Regular upkeep enhances the aesthetic appeal of the community and helps maintain property values. This includes having a reserve funding plan, and making difficult decisions about raising assessments or levying special assessments when necessary.

  1. Implementing Fair and Reasonable Policies

Boards are striving to create and enforce fair and reasonable policies. They work to ensure rules and regulations are clearly communicated and consistently applied, avoiding favoritism or arbitrary decisions, which helps maintain harmony and reduce conflicts in the community.

  1. Focusing on Inclusivity

Recognizing the diverse population of California, many community association boards are making efforts to be inclusive and considerate of all residents. This includes accommodating different cultural practices, ensuring accessibility for individuals with disabilities, and fostering an environment where everyone feels welcome and respected.

  1. Seeking the Advice of Professionals

Boards face a myriad of challenges, from legal compliance to financial management, and community relations. To navigate these complexities effectively, it is crucial for boards to seek professional guidance. Leveraging this expertise ensures the success and stability of the community. And doing so helps satisfy the due care requirement of the Business Judgment Rule (found in California Corporations Code section 7231) that provides certain legal protections to a board’s decisions.

  1. Embracing and Utilizing Technology

Community association boards are adopting software for managing community operations, from handling maintenance requests to managing payments. These digital solutions streamline processes, improve efficiency, and enhance the overall management of the community. Boards are partnering with their management companies, who are developing tailored technology solutions that fit the needs of community associations.

  1. Providing Education and Resources

Well-informed boards and residents make for a better community. Many boards promote educational resources and training. This includes board workshops and seminars as well as classes on topics like home maintenance and emergency preparedness for owners. Educated residents are more likely to comply with community guidelines and participate actively in the community. Two well known organizations that have educational opportunities and resources for owners are the Community Association Institute (CAI) and Educational Community for HOA Homeowners (ECHO). The California Association of Community Managers (CACM) also provides educational resources. Finally, Epsten, APC offers a wide variety of training opportunities to community managers and directors, contact us for more information.

I’d Like to Submit a Complaint. . .

Jacquelyn E. Quinn, Esq.

Senior Attorney

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Practices: Community Association Counsel | Commercial CID

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One of the most important roles of a community association board is enforcement of its association’s governing documents, including CC&Rs, Bylaws, and Rules and Regulations. One way a board may become aware of alleged violations of the governing documents is through owner-submitted complaints. In some communities, reviewing owner-submitted complaints can be a full-time job and boards are often left wondering whether they have to address each and every complaint that is received. Boards might decide to streamline this process by establishing an owner complaint process, which details how an owner can submit an alleged violation and what information the board is expecting to accompany a submitted complaint. The following are a few items to consider including when creating an owner complaint process:
    1. Written complaints only. It can be very difficult for a board to respond to a complaint when it’s not in writing, so requiring that all complaints be in writing is helpful.
    2. No anonymous complaints. A board can make reasonable efforts to keep the identity of a complaining owner concealed, but anonymity cannot be guaranteed if an owner requests the board to act.
    3. Details, details, details. Specify what information is expected to be included in the written complaint (i.e. the description of the alleged violation, the section of the CC&Rs or rules that owner alleges was violated, the name (if known), the address of alleged violator, the approximate date and time of the alleged violation, a photo of the alleged violation (if appropriate), names of any witness (if applicable), and any other information the complainant deems relevant for the board’s review).
    4. Next Steps. Specify that the board has the right to elect to not take action on any complaint if, in the board’s sole discretion, there is insufficient evidence of a violation or it is determined that there has been no actionable conduct.
    5. Follow up. Include that the complaining owner will not receive a follow up from the board about any action taken. Owner discipline is a confidential matter that other owners do not have a right to receive information about. A complaining owner may want to know what action the board took in response to their complaint, but they do not have a right to that information. If the board reveals such information, the association may find itself in hot water.
Having a comprehensive complaint process is beneficial as it helps manage expectations. The association’s expectations for owners regarding what information is expected when they submit a complaint, and an owner’s expectations about how their complaints will be handled. Such a process can also minimize the number of meritless complaints a board receives when complainants are required to identify this type information, and sometimes make them realize that the behavior they observed may not actually be prohibited. If you wish to discuss such a policy for your association please consult with your association’s management company and legal counsel.

The Increasingly Complex Board Election Process

By Karyn A. Larko, Esq.

** This article was published on CACM’s The Law Journal– Summer 2024 Issue.

The Davis-Stirling Common Interest Development Act (California Civil Code (“CC”) §§5100-5145) mandates the following board election process for incorporated and unincorporated associations. Failing to comply with this process can lead to owner challenges of the election results and litigation, which in turn can lead to the election being voided, the association paying the challenging owner’s attorney’s fees and court costs, and civil penalties of up to $500 for each violation of the law.

Step 1: Notify members of the nominating procedure

The first step in the election process is to notify the members, via general delivery, of the procedure and deadline for submitting nominations for board election. This notice must be given at least 30 days before the nomination deadline and 90 days before the election.

Step 2: Handle unqualified nominees

If persons who do not meet the association’s candidate qualifications are nominated, the board must offer these persons internal dispute resolution before disqualifying them. The purpose of this meeting is to allow these nominees to qualify or prove they are qualified to run.

Step 3: Appoint/hire inspectors of elections

The board must appoint or hire one or three independent parties to oversee the election (“inspectors”). Inspectors can be association members who are not board members, candidates, or family members of board members or candidates. They can also be professional inspectors or other professionals, provided they, the entity they work for, and any parent entity are not performing any other compensable services for the association.

Step 4: Notify members of the election; create candidate and voter lists

At least 30 days before the ballot mailing, the association must notify members of the following via general delivery:

1) The date and time ballots must be received by mail or handed to the inspector(s);

2) The mailing address for returning ballots;

3) The date, time, and location of the election; and

4) The list of all qualified candidates who will appear on the ballot.

For associations that require a quorum to conduct elections, this notice must also include a statement that the board may call a subsequent meeting at least 20 days after the election date if a quorum is not reached. At that time the quorum will be 20% of the members unless the governing documents provide for a lower quorum.

At least 30 days before the ballots are mailed, the association must also prepare voter and candidate lists. The voter list must contain the name, voting power, address of the separate interest or parcel number, and mailing address for the ballot (if different) for all members. The candidate list must contain the names and addresses of all candidates.

Members are allowed to verify the accuracy of their information on these lists. The inspector(s) must correct errors on these lists within two business days of receiving notice of the mistakes.

Step 5: Ballot mailing

At least 30 days before the voting deadline, a ballot, two balloting envelopes, and the election rules must be delivered to all members. If the election rules are posted on the association’s website, the election rules can be omitted if the ballot includes the following statement in at least 12-point type “The rules governing this election may be found here:___.”

An association can but is not required to include candidate statements in the ballot mailing (unless the bylaws or election rules mandate their inclusion).

Step 6: The election

If a quorum is established, the inspector of elections must open ballots in public at a noticed meeting, and members must be permitted to witness the opening and counting of the votes.

If a quorum is required but not achieved at this meeting, the association may adjourn the meeting to a date at least 20 days after the adjourned meeting, at which time the quorum will be 20% of the members under CC §5115(d)(2). To take this action, the association must notify members via general delivery, at least 15 days prior to the reconvened meeting, of the date, time, and location of the meeting; the names of the candidates; that 20% of the members present, or voting by ballot or proxy (if permitted), will constitute a quorum, and that ballots will be counted if a quorum is reached.

Associations with adjourned quorum requirements lower than 20% should refer to their governing documents for any requirements.

Step 7: Announce election results

The election results must be recorded in the minutes of the next board meeting and provided to the members via general delivery within 15 days of the election.

ELECTION BY ACCLAMATION

If an association meets the requirements of CC §5103 and wants to elect board members by acclamation, the required election process changes in the following ways:

• The notice of the nominating procedure must be provided to members via individual notice at least 90 days before the nominating deadline. It must include the number of positions to be elected, the procedure and deadline for nominations, and a statement that if, at the close of the nominating period, the number of qualified candidates is the same or less than the positions to be filled, the board may elect the candidates by acclamation without a member vote.

• A reminder notice must be provided to members via individual delivery between seven and 30 days before the nomination deadline. This notice must include the same information as the original notice and a list of the names of all qualified candidates as of the notice date.

• Within seven business days of receiving a nomination, the association must send a written or electronic acknowledgment of the nomination to the submitter, and a written or electronic communication to the nominee confirming whether the nominee is qualified to be a candidate. These notices can be combined when a member nominates themself.

• The board votes to seat the candidates at an open session Board meeting. The agenda for this meeting must include the names of all qualified candidates who will be seated by acclamation.

PRACTICE TIPS

  • Include the candidate qualifications in the notice of nominating procedures to reduce the likelihood of unqualified persons being nominated.
  • Send out the notice of nominating procedures more than 90 days before the election so you have time to conduct IDR before the notice of the election and the names of the candidates must be provided to the members.
  • Remember the inspector(s) determine where the ballots are returned and kept until the election. This location can be the association’s management office, but only if the inspector(s) authorizes it.
  • While notices required as part of the election process can generally be provided to members by “general delivery” as defined by CC §4045, the association must provide these notices by “individual delivery” to any members who request individual delivery.
  • Check the bylaws and election rules to determine whether proxies are permitted and, if so, consult with the association’s legal counsel to ensure compliance with any requirements about the use of proxies.
  • Remember that the election rules are required and cannot be amended within 90 days of an election.
  • Provide equal access to the common area, without a charge, to members who want to campaign for or against candidates. If the association allows any candidate or member to use any association media, such as a newsletter or website, to campaign, all members must be given the same opportunity to use that media for campaign purposes.
  • If the association’s bylaws or election rules allow nominations from the floor at the annual meeting or write-in candidates, check with the association’s legal counsel before the election for guidance on what to do if someone who does not meet the qualifications to run for board election is nominated from the floor or as a write-in candidate.
  • It is just as important that the ballot mailing contains all of the information required by California law as it is that the association follows the mandated election process. Please consult with the association’s legal counsel if you are unsure what information must be provided.

 

Diversity, Equity and Inclusion in Community Associations

Susan M. Hawks McClintic, Esq., CCAL

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Practices: Community Association Counsel | Commercial CID

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DEI is a term you might be hearing and reading about in the news lately.  DEI stands for diversity, equity and inclusion.  DEI is tied to civil rights laws and preventing discrimination in employment and housing based on someone’s characteristics.  In California, the characteristics protected by law include:

Race, color, ancestry, national origin, citizenship, immigration status, primary language, religion, disability (mental or physical), sex and gender, sexual orientation, gender identity or expression, genetic information, age, familial status, source of income, medical condition, marital status, military or veteran status, or citizenship.

At its core, DEI is about providing equal housing opportunities without harassment or discrimination based on these characteristics.

In California housing, including community associations, harassment of someone because of these protected characteristics is prohibited by the law.  Harassment includes verbal, written, or physical conduct that belittles or shows hostility toward an individual on the basis of these characteristics.  If a community association receives allegations of behavior that might constitute harassment the association is obligated to investigate and address any behavior which may be unlawful to the extent the association has the authority to do so in its governing documents.  The behavior may be subtle, rather than overt, and may be an accumulation of seemingly small events that result in someone feeling unwelcome in the community.

If any incidents between community members, residents and guests are reported to the community association, they may not specifically refer to harassment or discrimination.  The person reporting an incident or incidents may not use those specific terms or even be aware they might have harassment or discrimination claims.  Whether the report raises those concerns or not, the association should be aware of the potential for harassment or discrimination to be the basis for the behavior described in the allegations.

When the association receives a claim of an incident between community members, residents and/or guests, the board should determine whether the alleged behavior, if true, is behavior that might violate the association’s governing documents and/or which may be unlawful harassment or discrimination.  If there is insufficient information to make this determination, more investigation may be needed to attempt to verify what occurred and to evaluate whether any enforcement action against the alleged offender is needed.

It is understandable that if faced with allegations of harassment, board members may not feel qualified to investigate and determine whether a neighbor’s alleged harassing conduct was based on discriminationatory factors.  Remember that in many cases, the board may not need to definitively determine whether the alleged conduct was based on discriminatory behavior.  Harassing behavior can be a violation of the governing documents regardless of the reasons for the behavior.

Any investigation should be fair and impartial and appropriate in scope to the allegations made.  This process is similar to any other investigation of violations of the governing documents but the subject matter is likely to be more sensitive and personal than other types of potential violation investigations.  The board and management need to be sensitive to the nature of the complaint and in some situations may want to bring in a third party to perform the investigation particularly if the allegations are made against a board member or manager.

If the allegations are made against a board member or manager, that person should not be part of the group investigating the allegations or be involved in making any decisions as a result of the investigation.  The association’s investigation should be as fair and impartial as possible and, in some situations may be best handled by a third party to try to avoid any claims of bias or favoritism in the investigation process.

At the conclusion of the investigation, the board or committee created by the board to investigate the reported incident(s) will determine what they believe occurred, whether what occurred violates the governing documents and whether to take any disciplinary action or other steps.   (Generally, any unlawful harassment based on the characteristics protected by the law will be a violation of the association’s governing documents.  This should be addressed by the association with its legal counsel.)

The association’s objective is to provide an environment free from harassment and discrimination.  It is important for community association leaders to be able to recognize when a situation might involve unlawful harassment and discrimination and understand the potential role of the community association when situations arise within the community association which may constitute unlawful harassment.  Community association leaders are not expected to be experts in identifying and evaluating unlawful harassment but rather to be aware of circumstances where investigation and expert assistance may be needed.

“May I Buy This Home?” No Duty Owed to Prospective Purchasers

We are often asked by board members or management about an association’s obligation to answer questions posed by prospective purchasers, or to disclose certain documents, upon receipt of an escrow demand. Understandably, association representatives wish to promptly comply with an escrow demand within the time period required by law.[1]  However, it is important to keep a few things in mind when responding to these requests.

Current owners/prospective sellers are obligated to provide prospective purchasers with certain specified documents related to an association before they transfer title to a separate interest.  Civil Code section 4525(a)(1)-(10) lists the documents to be provided to a prospective purchaser by an owner and includes in the list: a copy of all association governing documents, along with nine other groups of documents. These specified documents are often termed “escrow disclosures.” Upon written request, the current owner of a separate interest must provide copies of the specified documents to the prospective purchaser “as soon as practicable” before the transfer of title or the execution of a real property sales contract pursuant to Civil Code section 4525(a).

Note that it is the current owner, not the association, that has the obligation to provide the specified documents under Civil Code section 4525 to the prospective purchaser.

However, common interest developments do not always get off quite so easily when it comes to an escrow demand. Associations are obligated to be part of the escrow disclosure process, by way of Civil Code section 4530. Civil Code section 4530(a)(1) provides:

“an association shall, within 10 days of receipt of a written request, provide the owner of a separate interest, or any recipient authorized by the owner, with a copy of all the documents requested as stated under Civil Code section 4525.”

As such, associations are required to provide a copy of the specified documents to the current owner or their designated recipient (who is often an escrow agent), within 10 days of receiving a written request. Again, notice that there is no obligation under law for an association to provide the requested documents to the prospective purchaser or the prospective purchaser’s representative.

It is important that association representatives are aware of these obligations and do not stray by providing more than what is required in Civil Code sections 4525 and 4530. Also, association representatives should be wary of interacting directly with prospective purchasers or prospective purchasers’ agents or representatives during the escrow disclosure process rather than the current owners/prospective sellers. For example, we are aware that sometimes prospective purchasers will ask associations to interpret existing restrictions in their CC&Rs or other governing documents (e.g., age restrictions or short-term rental restrictions). Questions like, “Is my son age-qualified to reside with me in the community?” or “May I short-term rent my home if I purchase in your community?” are not uncommon.

While an association representative’s instinct may be to answer such questions, we advise our clients to stick to the requirements of the law and only provide copies of the governing documents or other specified document, without analyzing the prospective purchaser’s situation. Remember: the association owes no duty to a prospective purchaser, only to the current owner of a separate interest within the association. Further, the disclosure duties of an association are limited to providing copies of lawfully requested documents as stated in Civil Code sections 4525 and 4530 to a current owner or owner’s designated recipient.

To do otherwise, could possibly subject an association to liability for unlawful interference with a contract to sell real property from the prospective purchaser or seller, in the unfortunate event that the sale of the separate interest goes bad. When an association representative is asked to interpret or explain any portion of an association’s governing documents by a prospective purchaser or even a current owner, the representative should provide a copy of the governing documents (or other specified document listed in Civil Code section 4525) and encourage the prospective purchaser or current owner to consult with their own qualified representatives if they have questions about the meaning of the governing documents.

[1] This article relates only to questions of prospective purchasers and not lender questionnaires.  Associations may also be required under the law to respond to lender questionnaires, in certain instances, but this topic is not covered in this article.

Using Common Area Facilities for Private or Group Lessons

Jacquelyn E. Quinn, Esq.

Senior Attorney

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Practices: Community Association Counsel | Commercial CID

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Many associations have common area amenities and facilities available to their residents and their guests.  Such amenities and facilities may include fitness centers, pools, tennis, and other sport courts.  From time to time, associations may receive a request from a resident to use a common area facility for private or group lessons with their personal instructors.  While it might seem like a simple request and boards may be eager to allow such use of the common area facilities, associations should be aware of potential issues that can accompany such use.  Whether a resident wishes to perfect their backstroke, backhand, or back swat, below are a few issues to consider when deliberating on whether to allow a resident to use a common area facility for private lessons with a personal instructor:

  1. Liability: Since the association typically operates, manages, and controls the common area facilities, it is responsible for ensuring the facilities are properly maintained and safe for use. The association could be held liable for damage or injury to an instructor or participant during a private lesson caused by missed repairs or poor maintenance of the facilities.  While similar concerns may arise when a resident chooses to use the common area facilities without an instructor, boards should consult their association’s legal counsel prior to allowing common area facilities to be used for private lessons.
  2. Americans with Disabilities Act (“ADA”): Generally, an association’s common areas are not subject to the ADA unless they are open to the general public. Allowing non-residents to take group lessons at the association’s common area facilities may open the association to an argument that the facilities are “public accommodations” subject to the ADA.  If the facilities are deemed to be subject to the ADA, an association could be required to make costly modifications to the facilities in order to comply with ADA requirements and an association could open itself to claims it violated the ADA.
  3. Insurance & Licensing: Consult with the association’s qualified insurance expert on the risks and insurance implications of allowing private instruction in common area facilities. Does the association have adequate coverage in the event of any incidents? Will permitting this type of use of the common area facilities be considered a commercial use and affect the association’s coverage?  Also, consider requiring any instructor to provide proof of any necessary licensing or certification, adequate liability insurance coverage, and requiring the association and management be named as an additional insured on the instructor’s policies.
  4. Waivers/Releases: Consider requiring instructors and participants to sign agreements releasing the association, its directors, officers, management, etc. from liability arising from any injury that may occur in a common area facility during private lessons. If minors are receiving the lessons, a special waiver signed by a parent or guardian may also be necessary.  Associations might also consider requiring an instructor to indemnify the association and board against any claims or lawsuits filed against them resulting from use of the common area facilities.  While these types of agreements may not provide complete protection for associations in all situations, they may be better than nothing if the association allows certain private lessons.
  5. Register/Rules: The right to use common area facilities is generally subject to reasonable rules and regulations adopted by the board. Boards may consider adopting reasonable rules and regulations regarding private lessons at common area facilities.  Such rules might include requiring the insurance coverage and waivers discussed above, prohibiting instructors from using association facilities without a resident sponsor, requiring all participants be residents of the community, requiring reservations, and clarifying that private lessons may not hinder other residents and their guests from using the facilities at any time.  Adopting reasonable rules pertaining to the use of common area facilities for private lessons gives a board something to enforce in the event a resident or resident’s instructor fails to comply.

In light of the potential for liability and other serious considerations discussed above, a board may find it prudent to simply prohibit owners from using the community’s common area facilities for certain private or group lessons.  However, the decision is ultimately up to the board.

 

** This article was published on CAI-Coachella Valley – 2024 HOA Living Magazine (February Issue).