Can’t We Have a Satellite Dish?

Can’t We Have a Satellite Dish?

Dear Kelly, I am in an HOA of free-standing homes. Our CC&Rs require that satellite dishes cannot be visible from common areas or HOA streets. Yet, several members have installed small dishes, less than 36” across, on their own property, visible from common areas and HOA streets. I registered my complaint, but the management company maintains that FCC regulations stipulate that they are allowed and that FCC regulations supersede CC&Rs and that our CC&Rs are outdated. What is the current situation regarding FCC regulations in this matter? A.D., San Diego Dear A.D., The FCC “Over The Air Receiving Devices (OTARD) Rule” and California Civil Code Section 4725, protect the right of residents to have satellite dishes not more than one meter (OTARD rule) or 36 inches (Civil 4725) in diameter. The state law allows restrictions based on visibility but the FCC rule does not allow such restrictions. Under the Constitution’s Supremacy Clause, the FCC regulation controls, so dishes can be visible. Therefore, your HOA’s visibility restriction standard might be invalid, and that may be why the other owners have installed visible antennae. Hopefully, your association’s legal counsel has been consulted and has weighed in on this issue, and that is why the Board is not enforcing the antennae visibility ban in the CC&Rs. Under the current satellite television technology, disputes about dishes seem to be less frequent, maybe because they now are significantly smaller (typically eighteen inches across). Thanks, Kelly Kelly, My HOA has a CC&R section proscribing outdoor antennas (other than those satellite dishes covered by the federal mandate). I assume that what legitimately concerns the HOA are...
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...
Investing, Growing, and Withdrawing Reserve Funds

Investing, Growing, and Withdrawing Reserve Funds

Kelly, I am a member of my HOA board. Our prior management company had done all of our investments (from our direction) for our reserve funds. FDIC insured CD’s were used as we understood that they were required by California law only to invest our funds in FDIC insured funds. We saw that the interest rate income from FDIC insured funds did not cover inflation increases and considered utilizing a financial firm to assist us to find some other opportunities that better protected our reserve assets using a combination of FDIC and SIPC insured securities. We have had some questioning from homeowners if it legal for us to utilize an SIPC insured fund (versus an FDIC fund). What type of investment opportunities are legal for HOA reserve funds? Thank you, C.W., Oceanside Dear C.W., As a fiduciary of the association funds, the board must keep the members’ money secure and not subject to reduction. In the world of financial fiduciaries, if the fund shrinks, the fiduciary could be “surcharged,” meaning held personally liable for the reduction in the fund due to loss of funds. Loss of funds is not a risk with deposits in banking institutions insured by the Federal Deposit Insurance Corporation (FDIC), so long as no more than $250,000 is in any one institution. Many associations spread their reserve funds across multiple banks to keep their funds all insured within the limit. The Securities Investor Protection Corporation (SIPC, www.sipc.org) protects against a stock brokerage becoming insolvent or taking a client’s funds – but it expressly does not protect against declining investments. Associations are often tempted to place...
What Amount of Reserves Does the Law Require?

What Amount of Reserves Does the Law Require?

Dear Kelly, Is there any legal requirement for the reserves to be at any levels or is it a recommendation by the state? Can an HOA be taken over by the state if it is underfunded and if so, at what percentage? Thank you, S.P., Newport Beach Mr. Richardson, Please tell me if there is a Civil Code requiring a certain percentage of funds to be kept in the HOA reserve fund? Also, would you know if there is an average or median level that is known for California HOA’s.? Ours is over 100 percent. J.D., El Cajon Dear S.P. and J.D., The Davis-Stirling Act contains several requirements regarding reserves. Civil Code Section 5550 requires a full study be performed every three years, with annual reviews in-between. Civil 5550(b)(5) requires a long-term funding plan, and Civil 5560 requires that plan include scheduled assessment increases and be adopted in an open board meeting. Civil 5565 requires a detailed written disclosure of the status of each common area component in the reserve study, which disclosure must be in the form prescribed by Civil 5570. This disclosure, per Civil 5300(b)(2) is part of the Annual Budget Report, and so is distributed annually to members and to prospective buyers. Civil 5510(b) requires that reserve funds be spent only on the items they are reserved for, and per Civil 5515 any other withdrawal of reserve funds is considered borrowing which must be disclosed to the members per Civil 5520. The Davis-Stirling Act does not specify any minimum funding of reserve accounts and does not specify a percentage the fund must be in comparison to...
Can I/They Keep My/Their Exclusive Use Area Change?

Can I/They Keep My/Their Exclusive Use Area Change?

Dear Mr. Richardson, Many years ago, I was allowed by the board to raise the height of my deck. I paid for the architectural change. No board member or manager since has ever inquired about it. Most people don’t even see the change. Do I have legal standing to keep my patio the way it is or at some time could I be forced to put it back the way it was originally built? J.H., Huntington Beach Dear J.H., When you modify an exclusive use common area, it is still not owned by you. Common areas are normally defined by a recorded plan or map. I am assuming from your question that you have no documentation proving the modification was approved. If you cannot prove the alteration was with HOA permission, the HOA might deny that the alteration was approved. If the association decided for some reason to renege on the permission, it might have to pay for the revision and possibly reimburse you for the original modification expense. Your situation illustrates why it is a good idea for both HOA and homeowner to document approved changes to an exclusive use common area, in a written agreement signed by the homeowner and the HOA. With a written agreement in hand, you would be able to prove you had permission. Such agreements are also helpful to the HOA because they can document the homeowner’s agreement to be responsible for the changed item’s maintenance and repair. To make sure that future owners of the lot or unit are notified of this agreement, the agreement can be filed with the County Registrar/Recorder....
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...
Freedom of Speech and Assembly

Freedom of Speech and Assembly

Dear Mr. Richardson, Our board is considering banning informal meetings in common areas. To me, this sounds like a violation of the constitutional right of assembly, but are there laws in California that cover this? S.M. Escondido Dear Kelly, I have a question regarding the new state law supporting use of common facilities for political activities, and one on first amendment rights. The new law allows residents to use common facilities for political meetings without charge. May the HOA limit attendance to only residents, residents and guests according to its adopted policies, or may/must these programs be open to all? Can an HOA prohibit the display of political signage on front lawns? For example, must the HOA allow residents to have campaign signs? Are there limitations to this allowance like size, length of display time, etc., as established in the HOA rules and policies? B.S., Murrieta Dear S.M. and B.S., Two Davis-Stirling sections create First Amendment-type rights in HOAs – Civil Code Sections 4710 and 4515. Section 4710 protects the right of members to display noncommercial signs or banners in or on their separate interest. In a typical airspace condominium that would mean inside a window or sliding door, and in a planned development would allow such a sign or banner to be displayed anywhere within the lot. There is a size limit but no time limitation on display. Can the HOA stop a resident displaying an offensive racist or prurient sign or banner? No. However, under the current federal Fair Housing regulations (and the soon to be official California Fair Housing regulations), the HOA or any resident could...
Is This Exclusive Use?

Is This Exclusive Use?

Dear Mr. Richardson, If a club in the HOA wants a locked storage space, is it considered exclusive use? W.S., Escondido Dear W.S., Exclusive use common area is defined by Civil Code Section 4145 as a portion of common area dedicated by the CC&R’s to the use of a single owner or group of owners. So, the club storage space, unless it was mentioned in the CC&R’s, would ordinarily not be considered exclusive use, but is common area allocated by board permission. Thanks, Kelly Kelly, I have a problem with my HOA on who pays for plumbing backing up due to a rusty pipe outside my unit in the front. The pipe rusted out and backed up into my unit. The HOA says it’s my responsibility because the pipe is “exclusively” into my unit therefore I have to replace the pipe and fix my flooring at my expense. Any advice would be appreciated. D.W., Fair Oaks Dear D.W., Do the CC&R’s of your HOA designate pipes which only serve your unit to be “exclusive use common area?” Per the Dover Village v. Jennison appellate decision of 2010, unless the CC&R’s say otherwise, the pipes outside a unit are not considered exclusive use common area. Even if they are considered exclusive use, do the CC&R’s specifically say that repair of the pipes is your responsibility? Civil Code 4775(a)(3) states that, unless the CC&R’s say otherwise, exclusive use common areas are to be repaired by the HOA and maintained by the homeowner. In townhouse-style condominiums, in which much of the plumbing separately serves individual units, associations sometimes amend the CC&R’s to...