Ballot Tampering

Source: Adrian J. Adams Esq.

QUESTION: We have a director who was caught alone with ballots, shredding envelopes and making identifying marks on the inner envelopes. Can you shed some light on ballot tampering and what we can do if the director is elected to the board?

 

ANSWER: It’s appropriate that your question falls on the 40th anniversary of Watergate.

Election Standards. The California Legislature set clear election standards for tamper-free elections. It did so by requiring double sealed-envelopes (Civ. Code §5115), independent inspectors of election (Civ. Code §5110), and public opening of  ballots and tabulation of votes (Civ. Code §5120). Associations are also required to adopt election rules to meet these (and other) standards. (Civ. Code §5105.)

RECOMMENDATION: If election shenanigans are discovered and the director gets himself elected, the membership has four options:

1. The easiest is to sit on their hands and do nothing. This is popular in many associations but tends to be costly–a director without ethical standards running the association.

2.  The next option is to demand a recount and an inspection of the ballots. (Civ. Code §5125.)

3. A third option is to initiate a recall. If the evidence is clear, the membership can vote the scoundrel out of office. This requires a lot of energy, especially if you have cumulative voting.

4. Assuming the evidence is strong, members can bring a civil action for injunctive relief to void the election and order a new one. (Civ. Code §5145.) This requires a lot of money. However, it may be possible to take it to small claims court. If so, the cost would be minimal.

Citizen's Arrest

Source: Adrian J. Adams Esq.

QUESTION: Our highrise building looks onto another highrise where a resident regularly watches porn on his big screen TV. We asked the neighboring building manager to encourage him to lower his shades. This had the opposite effect. He now leaves his shades completely open, watching in the nude and single-handedly participating. Do we have any recourse?

ANSWER: That is an ugly visual. If the porn junkie is in a building that is not part of your association, your options are limited.

Police. The police can be notified. They will talk to the resident but not arrest him unless they witnessed the illicit activity. To arrest him, you would have to accompany the police to the building and make a citizen’s arrest. Penal Code §837 states, “A private person may arrest another: (1) For a public offense committed or attempted in his presence…” 

Public Offense. A “public offense” is defined as a felony, misdemeanor or infraction. (Penal Code §16). Is your neighbor’s behavior a public offense? According to California Penal Code §647(a), engaging in lewd conduct in a public place is a misdemeanor.

The catch is the “public place” part of the statute. Lewd conduct by a lone adult in the privacy of his home wouldn’t normally interest the police or the courts. In your situation, your neighbor is knowingly making his conduct visible to his neighbors. Accordingly, action can be taken.

RECOMMENDATION: Before you rush over and make a citizen’s arrest, you should consider the possibility of retaliation. It’s clear your lewd neighbor does not have any boundaries. If a visit by the police does not resolve the problem, your best bet may be a strongly worded lawyer letter to the miscreant.

Spouse Eligible to Serve on Board?

Source: Adrian J. Adams Esq.

QUESTION: If a single person buys a unit and then later marries but does not have the deed to the property 
changed to include the spouse, is the spouse eligible to serve on the board of directors?
 

ANSWER: Whether the spouse can serve on the board depends on director qualifications contained in your bylaws. If your bylaws require that all directors be members of the association, then the spouse is not eligible to serve on the board because she is not an owner. 

Percent Ownership. Although not true in all cases, a great deal of mischief can be done by those who get around membership requirements by transferring a 1% interest or even half of 1% to a spouse so that person can serve on board. They often have a personal agenda and can be disruptive and unreasonable until they get what they want. Hence, our firm (i) includes a minimum ownership requirement of 10% when we amend bylaws to add director qualifications and (ii) disallows co-owners from serving on the board at the same time.

FEEDBACK

Free Speech #1. I love reading your newsletter please don’t stop. -Denise E.

Free Speech #2. You failed to mention that the First Amendment is a check on governmental censorship and not private action. The reason the HOA cannot regulate possession or viewing of porn in private is the right to privacy under the California Constitution, not the First Amendment. I agree that when the viewing of porn spills over into the common area or interferes with another’s right to quiet enjoyment, the HOA can regulate it. -Bill R.

Free Speech #3. “Do members have the right to watch porn in the privacy of their units? Of course.” However, this in-home porn watching does not extend to child porn. Under federal law, 18 USC 2252 and 2252A, the mere possession of child pornography–book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography–could land the possessor in prison for up to 10 years (first offense) and 40 years (if prior sex-related conviction). -Barry P.

FHA Loan a Civil Right?

Source: Adrian J. Adams Esq.

Ken Harney writes an award-winning, nationally syndicated column for the Washington Post on “The Nation’s Housing.” On January 27, he interviewed me for an article he was writing about the vulnerability of associations to discrimination claims related to FHA certification.

His interest was triggered in part by an article I wrote last November about an Ohio Civil Rights Commission investigation of alleged familial discrimination when a condo board declined a single mother’s request to certify the development for FHA financing (so she could buy a unit).

After a six-month investigation, Ohio’s CRC found insufficient evidence the association had violated the law. However, they left open the door that the buyer could file an action in federal court for disparate impact discrimination. If that were to happen, the Department of Justice could pursue the matter against the association.

Ken Harney noted that the current administration has already aggressively pursued disparate impact discrimination against mortgage companies. In other words, condominium associations could be open to civil rights claims for not seeking FHA certification because their decision has the practical effect of discriminating against minorities. To read the article, see “Condo Boards Could Face Discrimination Claims.”

RECOMMENDATION: As I noted in last year’s article, any decision not to seek FHA certification must be based on non-discriminatory reasons, which should then be recorded in the board’s meeting minutes. Boards should seek legal assistance drafting the board resolution before it is recorded in the minutes.

Airbnb Rentals Along the Coast

Source: Adrian J. Adams Esq. 

Airbnb is an online service that connects short-term renters (STRs) with people who 

have rooms or homes to rent on a daily or weekly basis.

Hotels & Cities. The site has grown spectacularly since its founding in 2008 so much so that 50,000 renters per night are using Airbnb. This is costing hotels $450 million per year, depriving cities of $226 million in tax revenues per year, and removing tens of thousands of homes from the long-term rental market.

Impact on Associations. HOA owners and investors have jumped into the lucrative market and are using Airbnb to create a steady stream of weekend rentals in violation of their CC&Rs. Such rentals significantly burden associations, some of which resulted in litigation. The court of appeals  recognized the burden created by STRs:

That short-term renters cost the Association more than long-term renters or permanent residents is not only supported by the evidence but experience and common sense places the matter beyond debate. Short-term renters use the common facilities more intensely; they take more staff time in giving directions and information and enforcing the rules; and they are less careful in using the common facilities because they are not concerned with the long-term consequences of abuse. (Watts v. Oak Shores.)

Other problems include security breaches, vandalism, litter and higher maintenance costs.

Typical CC&R Restrictions. STR restrictions are understandable since associations are intended to be stable communities with homeowners occupying units. To that end, almost all CC&Rs prohibit STRs. They often contain language prohibiting hotel-like use of residences as well as requirements that rentals be for at least 30 days, six months or one year.

Coastal Commission. The enforcement of STR restrictions has taken a twist for associations along the coast. The hyperactive California Coastal Commission has taken steps to prevent associations from enforcing their CC&Rs by threatening large, punitive fines.

The Coastal Commission argues that its heavy-handed approach increases the public’s access to the water. My firm obtained documents from the Coastal Commission where they cite tenuous authorizing language under the California Coastal Act for their actions. We reviewed the law and flatly disagree with their interpretation.

RECOMMENDATION. If your association gets a “cease and desist” letter from the Commission, you should immediately contact legal counsel. If you have questions about restricting short-term rentals, contact me.

Condo Board President Makes History

Source: Adrian J. Adams Esq. 

Here is an interesting bit of trivia. We can credit (or blame) a condo board president for making Donald Trump President of the United States.

Kellyanne Conway is a campaign manager, strategist, and pollster. Trump met Conway when she served on the condominium board at the Trump World Tower in Manhattan.

According to a Washington Post interview, Trump would show up at board meetings to hear residents’ concerns. He liked how Conway handled board meetings and followed her career managing political campaigns.

When the time was right, Trump convinced Ms. Conway to run his campaign. Thanks to her steady hand, Mr. Trump is now choosing his cabinet and meeting world leaders.

NOTE: I’ve known for years that if you can successfully run a condo board, you can do anything.

Missing Board Resolution

Source: Adrian J. Adams Esq. 

QUESTION: We have a board resolution dated April 17, 2013, signed by the secretary. But there is no 

mention of this resolution either in the agenda or the approved minutes for this date. I am curious if the resolution is in force nonetheless.

ANSWER: Yes, the resolution is likely in force. The fact that it was signed by the secretary and is part of your corporate records indicates it was authorized by the board. Another indicator of authenticity is if the resolution has been enforced by prior boards.

If you wish, you can reaffirm the resolution at your next board meeting and include it in the minutes. If you do, you should add background information about it being passed in 2013 and the board is simply correcting the record. If, on the other hand the current board is unhappy with the resolution, it can vote to rescind it.