Absentee Half-Owner on the Board

Source: Adrian J. Adams Es

QUESTION: Does a member have to hold 100% title in the unit to be eligible for the

board of directors? If the candidate shares 50% title with another and does not reside in the unit but leases it, is the member eligible to run for board?

ANSWER: Unless your governing documents state otherwise, directors do not need to be members. That means someone not on title can serve on the board.

Ownership Interest. If your governing documents require directors to be members but don’t set an percentage ownership interest, someone with a 1% interest can serve on the board. When I restate documents for associations, I set a minimum ownership interest of 10%. That way, directors have more of a stake in keeping the development in good shape.

Residency Requirement. If your governing documents are silent, then residency is not a requirement for someone to serve on the board. I include this as an option when restating bylaws. Some associations want it. For others, it may be an impossible requirement if the development is a resort with few if any permanent residents.

RECOMMENDATION: Most associations lack sufficient director qualifications and need to update their bylaws to meet current Davis-Stirling election requirements. Contact me if you need assistance.

Commercial CID Rule Change

Source: Adrian J. Adams Esq.
QUESTION: If the board of a commercial CID changes their collection policy, does it require 30-day review and comment period like residential associations?

ANSWER: For commercial and industrial common interest developments there is no notice or 30-day review requirement for adopting and revising operating rules.

In the Commercial CID Act, the procedure for adopting rules is determined by the development’s governing documents. If your documents require advance notice to the membership and a 30-day review period, then you must do so. If your governing documents are silent, the board may adopt rules by a motion at a board meeting. The rules immediately become effective upon notice to the membership.

RECOMMENDATION: Even if not required by your governing documents, it is still a good idea to notify the membership of any proposed rule change. Members like to stay informed and it gives the board a chance to find out if there are any serious problems with the rule change.

Thank you to attorney Wayne D. Louvier for researching this issue. Wayne works out of our Orange County office.

Re-mailing The Budget Package

Source: Adrian J. Adams Esq. 

QUESTION: We invariably receive budget packages and other disclosure information back in the mail due to member address changes. Are we obligated to resend this information to the new addresses, or are they considered “delivered” per the Mailbox Rule?

ANSWER: Under the “mailbox rule,” when a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.” (Rosenthal v. Walker, 111 U.S. 185, 193 (1884); Civ. Code §4050(b).)

Negligence. In your case, the presumption is lost because you know the annual budget report was not received–it was returned to you. The reason for the failed mailing was the owner’s negligence in not keeping you informed of his/her address change. Members who fail to keep their contact information updated still have a right to the budget report but you can charge them for the additional cost of re-mailing it.

RECOMMENDATION: If you have the budget package in digital form and the owner authorizes it, you can email it. That avoids any disputes over extra mailing costs.

Ham Radio Towers

Source: Adrian J. Adams Esq.

One of the purposes of an association is to protect property values. In addition to maintenance, HOAs 

regulate what people do with their property, i.e., no boats parked on the front lawn, paint your house, don’t install large unsightly antennas, etc.

Bills in Congress. Unfortunately, there are bills in congress that would eliminate HOA restrictions on ham radio masts and towers.

Negative Impact. Robert Browning, a radio enthusiast with a General Class Amateur Radio license, examined the impact of the bills and believes voiding HOA restrictions would be detrimental to communities. He made the following observations:

1. Electronics Interference. Ham operators can use either small towers or large ones. Small towers are less unsightly but require higher wattage to be effective. This can interfere with the electronics of neighbors up to several hundred feet away.
   
   
2. Property Values. If the ham operator installs a large tower so as to avoid interfering with his neighbor’s electronics, he creates an eyesore. The bigger the tower, the more unsightly it becomes, both from size and from all the cables needed for stability. The bigger the eyesore, the more it drives down property values.
3. Safety Issues. Large towers, if not properly secured, can topple onto neighboring properties causing injuries and damage. Safety concerns by neighbors would further depress property values.

Public Interest. Some believe the public interest requires radio towers in HOAs for emergencies. Mr. Browning argues to the contrary. He points out that emergencies (wildfires, earthquakes, hurricanes, tornadoes) require ham operator to report to a particular location. Licensees who volunteer have ready-to-go radio kits called “go-bags” with portable radios, batteries, generators, portable masts and antennas. Thus, there is no need for radio towers in homeowners associations.

Needless Burden. Mr. Browning further observed that other emergency responders do not burden their neighbors with the tools of their trades. For example, paramedics and EMTs do not drive ambulances home, nor do police officers or tow truck drivers. In conclusion, the legislation is unduly burdensome and produces no true public benefit. To read Robert Browning’s report in its entirety, see his White Paper.

RECOMMENDATION: To protect their property values, readers should urge federal legislators to oppose ham radio legislation. CAI has made it easy to send an email to legislators by providing a link with prepared language. It takes only seconds to send. Click here to send an email.

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