Unrevoked Consent

Source: Adrian J. Adams Esq. 

QUESTION: Can a member send an email request authorizing their HOA to send them all mailings via email without having to fill out a separate special form giving the HOA this permission?

ANSWER: The permission you describe is called “unrevoked consent” and is required by the Davis-Stirling Act. Unrevoked consent sometimes becomes an issue between dating college students–this is different. The Davis-Stirling Act allows owner to receive notices and documents by email “if the recipient has consented, in writing, to that method of delivery.” (Civ. Code §4040(a)(2).)

Electronic Transactions. The Act does not mandate a particular form. An email from an owner giving permission qualifies as written consent. (Civ. Code 1633.7.) The email can be printed by the association and stored in a file or it can be stored electronically.

Approval Forms. Even so, associations are allowed to create their own consent forms. Lawyers like to include disclosure language about how the consent remains effective until such time as it is revoked in writing.

RECOMMENDATION: If the association uses a form, don’t argue with them; simply fill it out. It only takes a minute and everyone can go away happy.

Executive Session Agendas

Source: Adrian J. Adams Esq. 

QUESTION: Does Civil Code §4930 also apply to executive session meeting agendas? Can boards add things to the agenda without going through the procedures described?

ANSWER: Civil Code §4930(a) restricts boards from discussing or taking action on any item at a nonemergency meeting unless the item was placed on the agenda included in the notice given to the membership.

Agenda Exception. The statute provides an exception for emergencies. If an item came to the attention of the board after the agenda was distributed, and if a majority of the board present at the meeting determines that an emergency situation exists, it can be added to the agenda at the meeting.

Emergency Defined. An emergency is defined as “circumstances that could not have been reasonably foreseen by the board, that require immediate attention” and making it impracticable to provide notice. (Civ. Code §4930(d)(1).)

Executive Session Agendas. The statute does not make an exception for executive session meetings. Even so, an argument can be made that executive sessions were not contemplated since the statute requires the board to “openly identify the item to the members in attendance at the meeting” before discussing the item. Members cannot attend executive session meetings so it would seem to apply only to open meetings.

Reported in Minutes. In any event, if an item of business is acted on by the board in executive session, it must be reported to the membership via open meeting minutes. Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership. (Civ. Code §4935(e).)

RECOMMENDATION: Talk to your association’s legal counsel and follow their direction on this issue. 

Mentally Ill Resident

Source: Adrian J. Adams Esq. 

QUESTION: We have a mentally ill homeowner who does not take his medication. His screaming and rants are scaring other owners. Two owners have lost tenants as a result. Young women in the complex are scared. Police and security have been called countless times and say they can’t do anything because he has not threatened anyone. He stays up all night yelling, screaming and using foul language. He is an owner and his family makes sure his dues are current. Is there anything we can do??

ANSWER: My partner Jasmine Hale spoke on this issue at a recent law conference in New Orleans. From what you described, it is clear the parents are warehousing their son in your association. You’re a substitute for a more costly mental institution.

Paper Trail. To properly address the issue, you need to create a paper trail. Residents and management should keep logs of their interaction with the problem owner and submit them to the board so there is a record of the frequency and seriousness of the problem. This can then be used for everything that follows.

Health Services. There are various social service agencies you can call that are sometimes helpful. Counties generally have programs such as adult mental health services and adult protective services. They can assist those with physical, mental or developmental disabilities. Unfortunately, they generally require the cooperation of the person with the problem, which is not always forthcoming. Still,it’s worth a try.

Family. You might contact his family but even that has problems. Because of medical privacy laws, you could find yourself in hot water if you disclose private aspects of his medical condition to others. Even so, on occasion I have sent carefully worded letters to parents that prompted action. One resulted in removal of the problem child and sale of the unit. Another prompted a gift from the parents. They sent me a bird.

Hearing. If the polite avenues fail, the board can initiate disciplinary action. The following steps should be followed: (i) send a cease and desist letter, (ii) hold ahearing and levy fines, (iii) offer ADR, and finally, (iv) file a lawsuit. Depending on the level of mental illness, steps one two and three may have no effect on the person. Even so, they are important for showing the court that the association exhausted all other avenues before taking legal action.
Protective Order. If you are forced to file a lawsuit, the complaint will be for breach of the nuisance provision of your CC&Rs and possibly harassment (depending on the circumstances). If the person poses a threat of harm to others, the association can seek a temporary restraining order without notice to the opposing party. (Code Civ. Proc. 527(c).)

Injunctive Relief. With the facts you described, you will be seeking a preliminary and permanent injunction. The injunction would likely include a stay away order, an order to cease creating a nuisance, and a communication protocol. Even then, depending on his mental illness, he may not understand the order or, if understood, unable to comply. That means you’re back in court again.

Amend CC&Rs. You should also consider amending your CC&Rs to give the association the right to evict tenants who violate the CC&Rs. This is helpful when the problem person is a tenant.

RECOMMENDATION: You should work with legal counsel to address this difficult problem. Unfortunately it will be slow and costly but you must follow the steps I described if you hope to be successful.

Interrupting Other Directors

Source: Adrian J. Adams Esq. 

QUESTION: Can a board member be censured for continually interrupting other board members at meetings? She has been warned over and over on this issue. What exactly does censuring mean, what does it accomplish?

ANSWER: Yes, boards can censure fellow directors for disrupting meetings.

Orderly Meetings. Board meetings are supposed to be run in an orderly fashion so as to accomplish the business of the association. Rules of parliamentary procedure were created for that purpose. If one director is constantly disrupting meetings, business is delayed and directors become frustrated and either cease voicing their opinions or, worse, resign from the board.

Censure Defined. A censure is an expression of disapproval. Its purpose is two-fold. A censure is intended to discourage further bad behavior by an errant director. And, it distances the board from potential liability. If a director behaves badly (verbally abusing homeowners, signing contracts without authority, etc.), silence by the board can be interpreted as approval. Then, when a lawsuit is filed, the plaintiff names the entire board because it “endorsed” the bad behavior. A censure serves as evidence the board was not complicit in the behavior.

Procedure. A censure can be imposed at the meeting where the behavior occurred or the board can schedule a noticed hearing. In the case where a director is disrupting the meeting by interrupting other directors, the censure can be imposed immediately. Under Robert’s Rules of Order,

in any case of an offense against the assembly occurring in a meeting, there is no need for a formal trial provided that any penalty is imposed promptly after the breach, since the witnesses are all present and make up the body that is to determine the penalty. (Robert’s Rules, 11th ed., p. 646.)

Minutes. If done in an open meeting, the censure is recorded in the minutes of the meeting and becomes a public record for the membership’s review. If it occurs in executive session, the minutes are not open for review but the action can be reported in the executive session summary recorded in the next open meeting minutes. (Civ. Code §4935(e).)

Other Actions. In addition to expressing disapproval of a director’s behavior, the board can remove the director from office (president, secretary, treasurer) andfrom any committees the director may be on. If the director is particularly abusive, the board can seek to recall him/her from the board.

RECOMMENDATION: Try to resolve the matter with a verbal warning to the director that the board may have no choice but to censure her if she continues to disrupt meetings. If the warning does not work, the board must be prepared to impose a censure.

Hillary's Emails

Source: Adrian J. Adams Esq. 

QUESTION: With all the news regarding Hillary’s emails, should our board set up a dedicated email account for official business?

ANSWER: Unlike federal employees, there is no requirement that boards use “official” email accounts. However, there are practical reasons for doing so.

1. Litigation. Even though homeowners do not have a right to inspect emails between directors, that changes when litigation is filed. As part of discovery, a director’s emails can be subpoenaed. When board members use personal accounts for HOA business, their personal emails can end up in plaintiff’s hands for the world to see if not carefully sifted from the record. That means sleepless nights deleting 30,000 “private and personal” emails, making it look like the board is hiding something. When people start deleting emails, plaintiffs and judges are understandably skeptical.

2. Confidential Information. Another benefit to an “official” HOA account is it becomes less likely that confidential HOA business will be viewed by family members. Many couples share email accounts and see each others’ communications. A family member is less inclined to log into a board member’s HOA account and read confidential communications.

3. More Cautious. Finally, using an HOA account should make directors more careful about what they write since emails are no longer personal but rather business emails that belong to the association. Knowing the emails are retained by the association should make directors more cautious and businesslike in their communications. That raises an issue that needs clarification–conducting business by email.

No HOA Business. By statute, boards cannot conduct association business by email. (Civ. Code §4155.) That does not mean directors are prohibited from emails altogether. Directors are allowed to (i) conduct emergency meetings, (ii) send emails to management and vendors, (iii) send emails to legal counsel, and (iv) send administrative emails to each other about meeting dates and times. For a more complete discussion, see “Email Meetings.”

RECOMMENDATION: Boards should reserve a domain name for their associations and establish an email account for directors. Setting up an account is easy and the cost modest. Email accounts should not be a generic “president@myfriendlyhoa.com” since they need to be terminated once a director is no longer on the board. Rather, use the director’s name, “j.smith@myfriendlyhoa.com.” Finally, boards should adopt an official “Email Policy” for directors that complies with the Davis-Stirling Act so board members know what they can and cannot do with emails.

Mudslide Assessment

Source: Adrian J. Adams Esq. 

QUESTION: About 10 homes in our community were red-tagged by the city due to severe damage from mud and rock sliding off a mountain slope. I asked our board to waive monthly assessments for those homes until they could be occupied again. I was told “We do not have the authority to do that.” Are they correct?

ANSWER: Waiving assessments is analogous to California waiving property taxes. If you can get the state to waive taxes you might have an argument for the board waiving assessments.

Deficit. Forgoing assessments is a friendly gesture but it would create a deficit in the budget that would have to be covered by other members via a special assessment.

Negligence. Fortunately, there is no need to drop assessments since the ten homeowners should have insurance to cover their loss. If they failed to carry insurance, you would be asking your neighbors to involuntarily pay for someone else’s negligence, i.e., their failure to insure.

RECOMMENDATION: If you want to waive assessments, I recommend putting it to a vote of the membership. If the membership approves the waiver, the board would not be acting outside their authority.

Adrian J. Adams, Esq. - Specializing in Common Interest Developments

Adrian J. Adams Esq.: Adrian Adams Esq. is one of the leading attorneys in California that specialize in common interest developments. Adrian Adams Esq. serves as an expert witness on standards of care issues involving association boards and managers, For more information about Adrian Adams Esq., contact us at (800) 464-2817 or (310) 945-0280.

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