Short sales can provide an association with a way to recover unpaid assessments without foreclosing on an assessment lien. In a short sale, a property is sold for a price that falls short of the total amount of debt secured by liens against the property. An association that demands payment of delinquent assessments in order to remove an assessment lien may be able to collect the amount owing as the lien may prevent a short sale from taking place.
The subject of spouses arises in a CID under the following circumstances. (1) Is a spouse who is not on record title an “owner” who is entitled to vote, attend board meetings, request inspection of documents, or legally obligated to pay the assessments due to an association? (2) May one spouse, even one whose name appears on title, be entitled to serve on an association board at same time as his or her spouse? These questions require an analysis of the governing documents of the applicable association.
Second hand smoke is a health hazard, and smoke that emanates from one area of association property to another constitutes a nuisance. Boards can require smokers to abate the nuisance by smoking in designated areas, installing HEPA filters, sealing wall penetrations, closing windows, etc. An association should amend its CC&Rs to prohibit or restrict smoking in common areas, exclusive use areas and even inside units. (Birke v. Oakwood Worldwide et al. (2009) 169 Cal.App.4th 1540.)
Civil Code section 5510 requires the signatures of at least two persons on each withdrawal from the association’s reserves. These two individuals may be either 1) members of the association’s board of directors, or 2) one officer who is not a member of the board of directors and a member of the board of directors. These signature requirements are in place to prevent potential theft and embezzlement.
Pursuant to Civil Code section 5980 an association has standing to institute, defend, settle or otherwise intervene in litigation, arbitration, mediation, or administrative proceedings in its own name, without joining its members individually, in matters involving enforcement of the governing documents, damage to the common area, damage to separate interest that the association is obligated to maintain or repair, or damage to separate interest that arises out of or is integrally related to damage to the common area or separate interest the association is obligated to maintain or repair.
Certain votes must be conducted by secret ballots, such as elections regarding assessments legally requiring a vote, election and removal of members of the association board of directors, and amendments to the governing documents. Unless an exception applies, the grant of exclusive use of the common area shall also be held by secret ballot. Secret ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member at least 30 days prior to the deadline for voting. The ballot itself must not be signed, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed and signed. The secret ballot must be returned in the two envelopes to the inspector(s) of elections. Members may request receipt for delivery. See California Civil Code section 5115.
The display of noncommercial signs, posters and flags is subject to reasonable rules and regulations established by the board of directors. Boards may not prohibit noncommercial signs and posters that are less than 9 square feet in size. Keep in mind that the first amendment protects free speech and courts are traditionally protective of individuals’ rights to express themselves. See Flags for a discussion of the U.S. Flag.
The time in which a lawsuit must be brought. Different claims have different statutes of limitations. For example, a lawsuit for personal injury must be brought within two years of the date of the event causing the injury while a lawsuit for breach of a written contract must be brought within four years of the date of the breach. Most of the statutes of limitation in California are found in Code of Civil Procedure, sections 335 through 349.4, but are also found in other code sections. Failure to bring a lawsuit within the time specified in the applicable statute of limitations will act as a complete bar to the lawsuit.
An association has a duty akin to that of a landlord to take reasonable precautions to protect residents from crime in the common areas, especially if there have been prior instances of crime in the community. While failure to take such precautions can lead to liability for an association, certain actions designed to enhance security also have the potential to increase the risk of liability, including the use of security cameras.
Associations, excepting qualified senior communities, may not be able to prohibit the use of skateboards in the common area without risking a claim of familial status or age discrimination in violation of the Fair Housing Act (“FHA”) and Unruh Act (“Unruh”) respectively. Further, many rules restricting the usage of skateboards may also run afoul of FHA and Unruh – even if they are intended to protect skateboarders.