They Won’t Pay, Now What?

They Won’t Pay, Now What?

When a homeowner fails to pay their share of the association expenses, the board is duty-bound to pursue the unpleasant but necessary task of compelling the member to pay. The association has three options – small claims court, non-judicial foreclosure and judicial foreclosure. In each approach, collection costs are added to the debt. Small Claims Court In small claims court associations can sue for a limited amount – up to $5,000 twice each year and each additional claim is limited to $2,500 per claim, under Code of Civil Procedure Section 116.231(a). Small claims court is fast, filing fees are low, and attorneys are not allowed to represent parties in small claims court trials. Plaintiffs cannot appeal the outcome, while defendants can appeal, sending the case to a retrial before a Superior Court Judge, under Code of Civil Procedure 116.710. Nonjudicial Foreclosure Nonjudicial foreclosure involves a series of notices and waiting periods, after which the property is taken away from the owner without court supervision. The goal of non-judicial foreclosure is simply for the HOA to take ownership of the property if the member does not pay the arrearage. If the property does not have enough net value to cover the debt, HOAs may not after a nonjudicial foreclosure pursue the member for more money. If the member is already in foreclosure from a lender, foreclosure is not a helpful option for the association. Prior to completing a foreclosure sale to take the property, consult legal counsel to confirm foreclosure is in the HOA’s best interests, because sometimes it isn’t. The foreclosure threat does not always compel owners to pay....
Transparency – Great for Windows (HOA Boards Too)

Transparency – Great for Windows (HOA Boards Too)

Nothing should be more important to volunteer boards than the trust of their neighbors. However, trust is not automatic and can be easily destroyed. Making good decisions for the association’s best interests is not enough. Decisions must be made in a manner which is above reproach and displays integrity and openness. These “baker’s dozen” tips may help to build and preserve the trust of the membership in its association governance. Initial Attitude Begin the board term with an attitude of service and not control. Directors with the right frame of mind are less likely to take offense when someone questions board decisions.  Board Meetings Other than the very few permissible closed session items, board discussion should be in open session. While it is easier for boards to work in closed sessions or “working meetings”, this violates the law and destroys the legitimacy of the open board meetings. Members will not trust a board which acts in secret on matters which should be in open session. Board actions taken due to emergencies or other circumstances outside of a board meeting should be disclosed in the next board meeting, and the reasons noted why the matter could not wait for the next meeting. A ratification motion can then further disclose the action in the minutes. Introduce each agenda item before discussing it. Attending members do not have the board packet, and a brief introduction of each item helps attendees to follow (not join) the discussion. Abstaining on a vote which uniquely affects one’s building and not the entire community, or otherwise concerns a director individually, is not enough – step away...
Tips Regarding HOA Committees

Tips Regarding HOA Committees

Most associations find committees helpful. Here are some tips to maximize their value to the HOA: 1. Committees can be “ad hoc,” i.e., temporary, or ongoing Committees typically address a major ongoing area of concern or take on the study of larger or complicated issues. 2. A committee is a group A committee should have at least 3 or 4 members. When a committee dwindles down to one or two persons, it is no longer a committee and should be restocked with volunteers or disbanded. 3. Appointments in the open Committee appointments (or removal) should occur in open meetings. Committee members are not “personnel” and so discussions about committee rosters are not eligible for closed session. 4. Committee service not perpetual Committees normally serve at the pleasure of the board. If a committee is not performing well, committee members can be replaced, and if the committee is not required by the governing documents, it can be disbanded by board vote. 5. Have committee charters Each committee should have a clear written charter adopted by the board. A clear charter informs the committee (and potential volunteers) what is the committee’s role, helping keep the committee on target. A charter also can indicate the minimum and maximum number of members. 6. No interference with vendors or management Committees and their chairs often need to be reminded that decisions are made by the board, that committees make recommendations, and that the committees and their chairs are not authorized to instruct management, association vendors, or other residents. 7. Have directors on committees if possible, but not too many One director on committees helps...
Open Forum: Drudge or Jewel?

Open Forum: Drudge or Jewel?

The “Open Meeting Act” (Civil Code Sections 4900-4955), requires at Section 4925(b) that all membership meetings and board meetings have a time set aside for members to speak. This time is often called “open forum.” In open forum, a member can speak on topics on or off the agenda. Some associations avoid open forum and others have unrestricted open forum, but both extremes are unhealthy. The time for homeowners to contribute to the meeting is not during deliberations – that is the board’s role – but during open forum. Open forum is an important element of a healthy association. If members have a fair opportunity to address an attentive board, they will have a more positive view of their association, and directors will be better connected with the community they serve. Consider these guidelines: Directors: Establish reasonable time limits to protect participation by all. Most associations allow 2 or 3 minutes per speaker. Have a timekeeper and consider giving members a “30 second warning” to help them. Do not interrupt, argue with, or respond to the speakers during their time. Listen to the speakers and take notes. Show attentiveness to their concerns – you just might learn something new. Do not record open forum comments in the meeting minutes – comments are not actions. Some speakers may disagree with the board or criticize. Deal with it — you are in a position of service, and they might sometimes be right! After open forum concludes, the chair should inquire if any item from open forum should be referred to a committee or management. If an answer to a question is...
We Like This Manager, But Are They Qualified?

We Like This Manager, But Are They Qualified?

Previous columns addressed management options and contracts. After selecting the desired type of management services, how can a board know if a manager prospect is qualified? California managers are unregulated, with no required license or minimum education. Rental managers must have real estate broker licenses, but not HOA managers. There is a wide range of qualification and experience in the field, and credentials indicate experience and commitment to the management profession. Certified Common Interest Development Business and Professions Code 11502 allows one to be called a “Certified Common Interest Development Manager” after 30 class hours in certain topics from a professional association of common interest development managers. Section 11504 requires managers to annually disclose whether they qualify as “Certified” and prohibits managers from falsely claiming to be certified. While certification is not mandatory, the disclosure is. The organizations educating and credentialing California managers are the Institute of Real Estate Management (“IREM”); California Association of Community Managers (“CACM”), Community Association Manager International Certification Board (“CAMICB”), and the Community Associations Institute (“CAI“). IREM IREM is a national organization, with about 18,000 manager members, offering education and credentials regarding all forms of property management. Although its managers are mostly non-residential, over 300 of its members in California hold a residential management credential called the “Accredited Residential Manager (ARM)”. The ARM requires 44 class hours in either rental property management or CID management. The ARM does not qualify for “Certified” status in California. CACM CACM is a California organization, founded in 1991 by a group of veteran managers. 1,618 active managers currently hold CACM’s primary credential, the Certified Community Association Manager (“CCAM”). The...
Association Management: Associations Have Options

Association Management: Associations Have Options

Choosing management assistance is one of a board’s most important decisions. Even the smallest associations will benefit from some form of professional management. What is a “Manager”? Managers carry out the association’s day to day operations, advising and providing information to the board and carrying out its policies and instructions regarding association property and funds. A manager may be an unpaid volunteer or may be paid. The paid manager may be an association employee, a consultant, or an employee of an outside company. In California, no license is needed to manage HOAs. Volunteer management Many associations use volunteers for their management functions. The motivation for volunteer management is primarily to save cost. In volunteer management, volunteers place themselves in the role of an unpaid manager – with all of its risks and no reward. Volunteer managed associations often find it difficult to find candidates for the board, since directors work so much harder when they are also managers.  Financial management This involves collecting assessments, paying bills, and preparing monthly and annual financial reports, disclosures, and budgets. A financial manager typically does not visit the property. Management companies often prefer financial management because it is more predictable and less prone to the extra work of managing the property. Some accountants also offer financial management services. Associations struggling with the cost of full association management may wish to consider at least financial management. Property management Property management involves responsibility for keeping up the condition of the buildings and grounds and may include routine inspections for architectural violations, maintenance items and repair needs. The plumbing leak on a Sunday afternoon and the...
2019 Bills Proposing New HOA Laws Are A Mixed Bag

2019 Bills Proposing New HOA Laws Are A Mixed Bag

This year Sacramento presents another spring season full of ideas for HOAs – some bad, some good, and some well-intentioned but needing revision. SB 323 Senate Bill 323 is a recycle of last year’s SB 1265, a bill vetoed by Governor Brown in September 2018. SB 323 would add burdensome new elements to the HOA election process and dictate to HOAs who could or could not serve as directors. The bill is as bad an idea this year as it was last year. As Governor Brown wrote while vetoing its predecessor, SB 323 “takes a once-size-fits-all(sic) approach, but not all homeowner associations are alike. If changes to an election process are needed, they should be resolved by the members of that specific community.” Associations should set their board eligibility standards, not Sacramento. SB 652 SB 652 addresses the conflict between architectural conformity and religious observance. Does a Jewish Mezuzah or Christian cross violate rules banning alteration of doorways? SB 652 would add a new Civil Code 4706, prohibiting associations from limiting or prohibiting display of religious items on entry doors of a member’s residence. There is no limitation on size, number, or appearance of doorway decorations, so long as they are religious. Perhaps some reasonable limit could be stated. Coauthored by sixteen legislators, it awaits committee assignment. SB 434 SB 434, authored by Senator Archuleta of Southeastern L.A. County, proposes to add a new Civil Code 5382. The proposed statute would require managing agents to produce the association’s records and property (manuals, transponders and keys, for example) within a certain time after termination and/or association request. Managers could not...
Why Governing Documents Matter

Why Governing Documents Matter

Governing documents are critical for HOA communities and are literally the legal glue which holds the association together. Civil Code Section 4150 defines “governing documents” as articles of incorporation, CC&Rs, bylaws, and operating rules, but I think subdivision maps and condominium plans also should be regarded as governing documents. Each has a distinct purpose and function, and every HOA member should have copies. Subdivision map and condominium plan This document breaks up land into separate pieces of land or airspace sold to homeowners in planned development (“lots”) or condominium (“units”) projects. This document is recorded (i.e. filed) with the County Recorder, is easily retrieved, and defines the “common area” as well as the “separate interest” (i.e., the lot or unit). Sometimes it also delineates exclusive use common areas or maintenance easement areas. It establishes the real estate interests owned, so any amendment requires agreement of 100% of association members and their mortgage holders, and consequently amendment is highly unlikely. Articles of incorporation Articles of Incorporation establish the legal “person” of the association. Filed with the Secretary of State, this document can be retrieved from that office. Older Articles sometimes contain important information about limits on the association or board’s powers. The Articles list the association’s legal name and can be amended by membership vote, although amending is rarely necessary. Check the association’s corporate status at https://businesssearch.sos.ca.gov. CC&Rs The CC&Rs document is recorded (amendments also must be recorded), and therefore is also a public document. Associations often use unrecorded, unofficial copies, but official copies can be retrieved from the County Recorder. CC&Rs are a long contract automatically binding all owners,...
What Makes a Director Outstanding [Part 4] – Participation in Board Meetings

What Makes a Director Outstanding [Part 4] – Participation in Board Meetings

Productive and efficient meetings are not happenstance but are the result of committed and prepared volunteers, normally assisted by a great professional manager. To help bring about the best board meetings: Read the agenda packet Come to the meeting prepared, having already read the agenda and the supporting materials. The packet is provided in advance to prepare you to make the decisions presented. Reading it for the first time at the meeting disrespects the other directors, indicates lack of commitment, and delays meetings as one “gets up to speed.” Stay on topic A single director can derail discussions by moving on to a different topic before the current one is concluded. Politely remind colleagues when deliberations stray from the matter at hand. Talk to the board, not the audience Directors attend board meeting to deliberate with board colleagues, not the audience. Grandstanding by speaking to the audience disrespects other directors and encourages raucous meetings. Ask the manager for input on most motions The board’s most frequent protector under the Business Judgment Rule is the manager, so seek the manager’s input. The manager often has years of experience and training; take advantage of that background. If a manager’s input isn’t being sought, why have them in the meeting? Treat open forum as an important event and pay attention California law requires open forum at all membership meetings and open board meetings. That is the time for the board to listen to the community. Take notes and don’t interject or argue. Open forum reminds directors that they are there to serve their community, and often helps the board learn things they...