Filling an Empty Seat

Source: Adrian J. Adams Esq. 

QUESTION. If a board member resigns one full year before the end of her term, is her empty seat automatically open for election or does the board appoint her replacement?

RESPONSE: I know Clint Eastwood had trouble filling an empty chair three years ago but it’s fairly routine for boards of directors. The mechanism depends on two things: (i) how the vacancy was created and (ii) the language in your governing documents.

Recall. Vacancies caused by the membership’s removal of a director (a recall) cannot be filled by the board. It must be filled by the membership at a special election (Corp. Code §7224(a)). That should be done on the same ballot as the recall.

Death & Resignation. Vacancies created by death or resignation of a director are filled by approval of a majority of the remaining directors, unless the governing documents expressly provide otherwise. (Corp. Code §7224(a), Robert’s Rules, 11th ed., p. 467.) Most bylaws follow the Corporations Code and give the board the authority to fill the seat.

Failure to Appoint. If the board fails or refuses to fill an empty position, the membership can call for a special election. (Corp. Code §7224(b).) The process is initiated by filing a petition with the board for a special meeting to fill the seat.

RECOMMENDATION: Check your articles of incorporation and bylaws to see if they address the subject. If they are silent, then follow the Corporations Code as described above.

Suspicious Inspectors of Election

Source: Adrian J. Adams Esq. 

QUESTION: The Davis-Stirling Act states that ONE or THREE independent third parties must be chosen as inspectors of election. Since tabulations must take place in public, it appears suspicious when there are only two at the table when the law requires one or three. If the Inspector brings someone to open the ballots, does he count as an inspector because he is touching and unfolding ballots? If the assistant SORTS the ballots (touching the ballots) and asks questions to the Inspector about ballots, does he become an inspector?

ANSWER: There is nothing suspicious or inappropriate in what you describe. The Davis-Stirling Act addresses the number of inspectors (one or three) not the number of assistants (unlimited). (Civ. Code §5110(a).) What’s more, the Act actually requires that election rules:

Allow the inspector or inspectors to appoint and oversee additional persons to verify signatures and to count and tabulate votes as the inspector or inspectors deem appropriate, provided that the persons are independent third parties. (Civ. Code §5105(a)(6).)

That means you can have one inspector and half a dozen assistants who register people, open envelopes and tabulate votes–all under the supervision of the inspector. Touching an envelope does not magically make someone an inspector. Under that reasoning, mail carriers become inspectors when they deliver envelopes to the inspector. I don’t think the Post Office has that in their job description.

RECOMMENDATION. The British government distributed posters to the people of England during World War II to help get them through the Nazi aerial bombardment. One of them read, “Keep Calm and Carry On.” That applies here. Don’t over-think the inspector issue or you’ll give yourself a stroke.

Panty Thief

Source: Adrian J. Adams Esq. 

QUESTION: There is a man living in our complex who appears to have Down’s syndrome. He goes to the laundry facilities and steals women’s underwear and bras. He has even tugged on a girl’s underwear as she was bending over. The board is afraid of lawsuits and refuses to send the owner a letter. If anyone complains, they say “go to the police.” What can we do?

ANSWER: I passed this hot potato to attorney Jasmine Fisher. Following is her response:

Disability Rights. Your board may be unduly concerned about disability rights. Fortunately, the law only requires “reasonable” accommodation of disabilities. There is no law or case on record (yet!) that gives a disabled person the right to steal undergarments. That means your panty thief may create liability for your association if the board refuses to act.

Association Liability. While the association is normally not responsible for the criminal acts of a third party, Frances T. v. Village Green made an exception when the crime is foreseeable. In Frances T, the board knew about the increased crime in the area, failed to install exterior lighting Frances T. had requested (to make her unit safer) and actively prevented her from installing lighting. She was subsequently raped and robbed in her unit. The court found the association and its directors liable because the harm was foreseeable and they did nothing.

With your panty thief, it is foreseeable the thefts will continue and may escalate into something more physical. If so, your association could be liable for your board’s failure to act. Simply saying “Go to the police” will not remove the liability exposure.

Board’s Options. The courts provide a wide degree of latitude to board decisions so there is no right or wrong option, aside from doing nothing. The board can use the nuisance provision of your CC&Rs to call a hearing to warn the owner. If the behavior continues, fines can be levied (following another hearing). If that does not work, a letter from legal counsel threatening litigation can be next. Ultimately, a lawsuit may be necessary. If needed, the board can skip the early steps and jump to a lawyer letter and potential litigation.

Notice to Members. Should the members be warned? Notifying owners can be tricky. If you don’t notify the membership and your panty thief escalates to sexual assaults, your board could be sued for failing to warn the members. If the board says too much, they could be sued by the panty thief. It’s the same problem boards face when a registered sex offender moves into a complex. They can’t post a notice that sex offender Dilbert Smith moved into unit 301. They must be more circumspect.

RECOMMENDATION: As JFK said, “There are risks and costs to action. But they are far less than the long range risks of comfortable inaction.” To minimize legal exposure, boards who are aware of criminal activity in the development should coordinate with legal counsel for appropriate (i) action against the perpetrator and (ii) notice to the membership.

Inflatable Bouncers

Source: Adrian J. Adams Esq. 

QUESTION: Can an HOA ban jumpers, bouncers, slides, etc. without it being in the CC&Rs or bylaws? Many HOAs allow owners with children who have parties and hire jumpers to place in the common area. It causes problems when the HOA prohibits them on the day of the event.

ANSWER: Yes, they can be banned. When it comes to the common areas, boards have the power to regulate activities. They can do so because governing documents put common areas under HOA control and reducing liability is a key element of a board’s duties.

Injuries. According to the Consumer Product Safety Commission, injuries related to bouncers are on the rise. They estimate more than 100,000 bouncer related injuries were treated in emergency rooms from 2003 to 2013, including 12 deaths. The Child Injury Prevention Alliance noted that inflatable bouncers can lead to broken bones and concussions and estimate that hospital emergency visits are now at “more than 30 children a day, or about one child every 45 minutes.”

Liability. If an owner holds a bounce party in his own backyard and a child is injured, the association won’t be dragged into the litigation. If the party is in the common areas, the association can be sued even though it was the owner’s party. Accordingly, boards have an interest in protecting the association from potential liability related to bouncers.

Rules. Associations don’t necessarily need a rule banning bouncers since a list of prohibited activities could be lengthy–no bouncers, no trampolines, no archery, no weapons, no serving alcohol to minors, no dangerous activities, etc. In addition to being lengthy, such restrictions can be difficult to define. Is running across a greenbelt a dangerous activity and therefore banned? Is using a stick to hit a pinata a weapon? Even so, a short list of banned activities may be appropriate.

Last Minute Notice. Associations often have a catch-all provision in their governing documents requiring permission before holding an event in the common areas. I suspect you did not get permission in advance of the party, which is why the HOA bounced your bouncer on the day of the event.

RECOMMENDATION: Associations with common areas that lend themselves to children’s events should talk to legal counsel about how best to limit liability for such events. That could include insurance and/or a signed hold harmless/indemnity agreement. In addition, boards can adopt a list of the more dangerous activities they wish to restrict and incorporate it into the reservation agreement so members will know in advance what they can and cannot do. Boards need to be cautious how they word restrictions. Otherwise, they could trigger claims of discrimination against families with children.