El Niño is Coming!
p.8
Board Members with Hidden Agendas
Self Help
p.14
Serving Community Associations
Preparing Your HOA for El Niño Rains
p.20
Less is Best When Refining Your Rules & Regulations p.24
What is a “Request for Proposal?”
p.28
September 2015 echo-ca.org
p. 8
ECHO 1960 The Alameda STE 195 San Jose, CA 95126 Change Service Requested
PRSRT STD U.S. Postage PAID Modern Litho 210
news from ECHO
News From ECHO September 2015 It’s still warm and dry, and the drought continues. But for how long? If, as predicted, we’re in for a Grande El Niño, are you ready? Rain will certainly be a welcome relief, but on the heels of several years of drought there are many potential issues that may arise for your association that should be addressed now. Our lead article this month will help you think through all the precautions your association should consider before the high winds and heavy rains descend. Likewise, our other articles this month and every month help you address issues that confront your association. We try to bring you a variety of information and advice to assist you in performing your duties. Please help us by letting us know about issues you want our experts to explore. And if you need answers to burning questions between issues of the ECHO Journal, please visit our website: www.echo-ca.org. We have loaded the site with tons of information on a variety of subjects, as well as a searchable set of California Codes including the Davis-Stirling Act, and every edition of the ECHO Journal going back to 2007. Make it your go-to site for everything HOA. For those of you in the Monterey area, please join us for our October 17 seminar. Attendance is FREE for ECHO HOA Members. We’ll have presentations about handling difficult owners, preparing for El Niño, and a financial primer. See page 13 for more information and registration. And remember to include ECHO Membership in your upcoming budget! Best,
Brian Kidney Executive Director
September 2015 | ECHO Journal
3
CONTENTS 8 28
24 14
4 echo-ca.org
20
8
El Niño is Coming! The thought of the heavens opening up and dumping double our annual rainfall sounds like welcome relief for our parched state. However, since it hasn’t rained like this in a while let’s look at some important issues to address before the first drops hit the ground.
14
Board Members with Hidden Agendas We have all experienced owners who get elected to an association board so that they may further their “own” agenda. While most of the time owners come to the realization that the board’s function is to administer the association in its entirety, there is always one or two who insist that things have to be their way.
20
Self Help Your board wants to go on a property and correct a covenant violation themselves. Can you? Even if you have legal authorization, should you? Read on for the risks and rewards of using authorization to go onto someone else’s property to resolve a covenant violation.
24
Less is Best When Refining Your Rules and Regulations Far too many associations have created rules and regulations that seem old, wordy, and sometimes conflicting with each other, with little sense of organization and order. Community association practitioners know the consequence: pages and pages of hard to understand and hard to enforce rules and other rules that might have been relevant once and are no longer valid and are just ignored.
28
What is a “Request for Proposal”? A “request for proposal” (commonly referred to as RFP) is a document drafted by a building owner or association that formally solicits a bid for material, services, construction, or repair of a building, system, or component. Along with a scope of work, a RFP can ensure that all contractors bidding on the job are bidding to perform the work in the same manner with the same material.
DEPARTMENTS
3
News from ECHO
6
2015 ECHO Educational Calendar
7
Featured at echo-ca.org
13
Monterey Educational Seminar — October 10th.
32
ECHO Bookstore
35
Advertiser Index
36
ECHO Event Calendar
37
ECHO Volunteers
38
Legislation at a Glimpse
The ECHO Journal is published monthly by the Educational Community for Homeowners. The views of authors expressed in the articles herein do not necessarily reflect the views of ECHO. We assume no responsibility for the statements and opinions advanced by the contributors to the magazine. It is released with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Acceptance of advertising does not constitute any endorsement or recommendation, expressed or implied, of the advertiser or any goods or services offered. We reserve the right to reject any advertising copy. Copyright 2015 Educational Community for Homeowners. All rights reserved. Reproduction, except by written permission of ECHO is prohibited. The ECHO membership list is never released to any outside individual or organization. ECHO 1960 The Alameda, Suite 195 San Jose, CA 95126 408-297-3246 Fax: 408-297-3517 www.echo-ca.org info@echo-ca.org Office Hours Monday-Friday 9:00am to 5:00pm Board of Directors and Officers President David Hughes Vice President Karl Lofthouse Treasurer Diane Rossi Secretary Carly Melius Directors Jerry L. Bowles John Garvic Adam Haney Stephanie Hayes David Levy
Robert Rosenberg Brian Seifert Wanden Treanor Steven Weil
Executive Director Brian Kidney Director of Marketing & Membership Carly Melius Director of Communications Tyler Coffin Legislative Consultant Mazzoni and Associates Design and Production Design Site ECHO Mission Statement Serving Community Associations
September 2015 | ECHO Journal
5
2015 ECHO educational calendar
San Francisco
October 17 Monterey Educational Seminar (see page 13) Embassy Suites Monterey Bay Seaside, CA
6 echo-ca.org
featured at echo-ca.org
Timely tips, fresh insights, and legislative updates — always find what you need by visiting our website. To gain access to all of ECHO’s articles, sign up for a free account: email ECHO at newaccount@echo-ca.org.
Articles What Are the Responsibilities of HOA Boards? – Part I
Part one of this two-part series examines the most basic responsibilities of HOA boards: their “fiduciary” duty and “landlord to tenant” duty to the association’s membership. These duties, established by legislation and legal precedent, require boards to act in a particular manner – one that keeps the association financially secure and its members safe. The second part of this series will examine the most common tasks performed by HOA boards. Educational Topic: Fiduciary Duties
20 Questions: Independent Contractor or Employee?
You have a service provider, and you’re pretty sure that they are an independent contractor. But pretty sure isn’t enough: the protections owed to employees are substantial, and can place your association at great risk. Review these 20 questions to make sure that you are classifying your service provider correctly. Educational Topic: Contractors
Is Your Reserve Budget Just an Illusion?
Even associations that update their reserve studies every three years may be unaware of major flaws in their longterm budgets. Some common components are frequently unaccounted for, and the replacement costs are substantial. Here are a few tips to help you avoid some hefty financial consequences. Educational Topic: Reserves
Making Accommodations – ADA Compliance and HOAs Don’t be put off by a resident’s request for a modification. California and Federal laws protect certain classes, and you have an obligation to respond to reasonable requests. Learn about your HOA’s obligations, what constitutes a reasonable request, and when you need to seek professional guidance. Educational Topic: Liability
Facebook Join Our Facebook Community Want to see pictures from the Annual Seminar? Comment on our legislative activity? We only put the latest news up on Facebook, and we’d love to hear from you. Share your experiences, read important and amusing HOA news, and connect with your fellow HOA owners on ECHO’s Facebook page. facebook.com/echoorg
ECHO Journal Read the ECHO Journal on the ECHO website before it arrives at your door. We usually post the latest issue on or before the beginning of each month. Log in to browse the latest articles, or read from a huge library of past issues. Find in: echo-ca.org/journal
September 2015 | ECHO Journal
7
8 echo-ca.org
˜ EL NINO IS
COMING! How to Prepare Your HOA for El Niño Rains By Charlotte Allen
September 2015 | ECHO Journal
9
C
alifornia is in the midst of one of one of the worst droughts on record. Historical water restrictions are in effect and wells in the central valley are drying up. The entire state is partaking in the largest choreographed rain dance ever. Let’s be careful what we wish for… There isn’t a meteorologist in the country that isn’t acknowledging the strengthening El Niño in the Pacific Ocean. Presently, there is a 90% chance of the El Niño lasting through winter and an 80% chance of the phenomenon lasting through early spring.
10 echo-ca.org
What is El Niño?
Maintenance
According to the National Oceanic and Atmospheric Admiration, “El Niño refers to the large scale ocean atmosphere climate interaction linked to a periodic warming in sea surface temperatures across the central and east central Equatorial Pacific.” During an El Niño, California sees an above average rainy season. The last significant El Niño and the largest on record occurred in 1997-98. The storms left 17 dead and caused more than half a billion dollars in damage. San Francisco alone saw 47.2 inches of rain, more than double its average.
Roofs: If you don’t already have an annual roof inspection plan in place, now is the time to do so. Hire a licensed and fully insured roofer to check for weak spots in the roof, missing shingles and clear gutters and drains. The normal roof life expectancy is approximately 20 years in North America. The purpose of an annual inspection program is to slow age related deterioration, prolonging the life of the roof and avoiding costly out of pocket expenses. Remember, insurance is there to protect you from “sudden and accidental” losses and excludes claims arising from failure to maintain.
The thought of the heavens opening up and dumping double our annual rainfall sounds like welcome relief for our parched state. However, since it hasn’t rained like this in a while let’s look at some important issues to address before the first drops hit the ground.
Trees: Take a look around your Association. How many trees are growing dangerously close to the buildings? When was the last time a professional arborist conducted a full inspection of your Association’s grounds? Downed trees and falling limbs are a leading cause of property damage during the
winter months. Add in a biblical drought and the potential for a record setting wet winter and you have a catastrophe in the making. Now is the time to bring in a fully licensed and insured professional to help you protect your Association from harm.
Storm Drains: Pooled water and mud are a leading cause of slip and fall injury. Have a licensed and insured landscape maintenance contractor ensure that your landscaping drainage and storm drains are clog free. Make sure you have scheduled leaf removal at regular intervals. Concrete: Buckled or uneven concrete is a dangerous trip hazard. Adding standing water to the equation makes these hazards more difficult to see and regaining balance before a potential fall more difficult. A good concrete or pavement company can help you remediate the problem. Note: Anytime you hire a contractor to perform work at the Association you need to make sure that contractor is fully licensed and insured. Make sure their
September 2015 | ECHO Journal
11
During an exceptionally rainy season, it’s good practice to review your current insurance and look for potential gaps. Two significant gaps are lack of insurance for Landslide and Flood. Neither are automatically included on your standard Property policy.
insurance includes policy language or an endorsement that allows them to work on community associations.
Additional Insurance
Flood: If you are located in a high-risk flood zone the chances are high that you already have flood insurance. Banks make sure of this before loaning money. Most people think if they are not located in a high-risk flood zone they don’t need flood insurance. According to the National Flood Insurance Program, “people outside of mapped high-risk flood areas file over 20% of all National Flood insurance claims and receive one third of the Federal Disaster Assistance for flooding”. You can visit https://msc. fema.gov/portal and enter an address within your Association. There, you can access the FEMA flood map for your area and see what flood zone you fall in. You’re most likely not within a high-risk flood zone, making flood insurance coverage mandatory, or else you would have already been notified by lenders.
Despite not being located in a mandatory flood zone you still want to check the map. You may be a right next door or a half a block from a high risk area. Flood premiums on properties located outside high-risk zones are very reasonable and may be a good investment considering the potential risk during this El Niño.
Landslide/mudslide: Landslide
insurance is often overlooked. Like flood, it’s not typically included with your standard Property policy but also similar to flood it has the potential to be devastating. Certain conditions have to be met in order for a landslide/mudslide to occur. Vibrations caused by earthquakes, erosion from waves or rivers, removal of vegetation, leaking pipes, etc. all contribute to the potential for loss. One such condition is prime for the coming months. The current drought coupled with the almost inevitable El Niño creates a nightmare situation for some property owners. Our hills are dry, vegetation is dying leaving the supportive root structure broken. Add very heavy topsoil from torrential rain to dry soil underneath and you have the perfect ingredients for a mudslide. According to the US Geological Survey, during the last substantial El Niño in 1997-98, an estimated $140.9M (1998 dollars) in damage was caused by landslides. In the 1982 El Niño, 18,000 debris flows and landslides were triggered killing 25 people and causing an estimated $112.9M (1998 dollars) in property damage. Landslide insurance premiums are relatively affordable. Depending on the conditions, you may not need to carry it year after year. If there was ever a year to consider it, this is the year. The El Niño is an exciting event that could bring us a lot of welcome rain and potentially fill our reservoirs. Now is the time to do the preparation work so that as the rain begins to fall you can rest assured you have taken care of all the maintenance issues and considered additional insurance. Only thing left to do is melt into a warm couch with a hot cup of something, a good book and listen to the familiar sounds of winter.
12 echo-ca.org
Charlotte Allen is a licensed insurance broker with Socher Insurance Agency. For the past ten years she has successfully aided in acquiring and retaining insurance for thousands of common interest developments throughout California.
New For 2015, FREE Attendance for ECHO HOA Members!
Monterey Educational Seminar
SAVE THE DATE! WORKING WITH DIFFICULT MEMBERS Stephanie Hayes, Esq. – Hughes Gill Cochrane, PC
PREPARING YOUR HOA FOR EL NINO RAINS
Saturday, October 17, 2015 8:30 AM to 12:30 PM
Brian Seifert – Cox-Seifert Associates LLC
GETTING YOUR HOA FINANCIALS IN ORDER David Levy, CPA - Levy, Erlanger & Company CPAs
Yes, reserve _____spaces for the ECHO Monterey Seminar Amount enclosed: $______(attach additional names)
SAVE THE DATE!
Name:
Visit echo-ca.org/events for the latest information and online registration.
Email Address: HOA or Firm:
ADDRESS
Address: City: State:
Zip:
Phone:
Embassy Suites 1441 Canyon Del Rey Blvd., Seaside, CA 93955
Visa/Mastercard No. Exp. Date: Signature: Return with payment to: ECHO, 1960 The Alameda, Ste 195, San Jose, CA 95126 Orders will not be processed without payment in full. Fees for cancelled registrations will not be refunded. Phone: 408-297-3246; Fax: 408-297-3517
13 echo-ca.org
Price
FREE for Pre-registered ECHO HOA Members $50 – Nonmembers and Walk-ins July 2015 | ECHO Journal
13
I will talk you into loving my red drapes! Owners don’t need to follow rules!!
You all need to see everything my way!
Rules are silly!
If you would all just listen to me me me me... 14 echo-ca.org
Let’s change these pesky governing documents!
How can I get around this issue?
I don’t like to work with others!
Board Members with Hidden Agendas By Brenda L. LeClair, CMCA®
August 2015 | ECHO Journal September 2015 | ECHO Journal
15 15
W
e have all experienced owners who get elected to an association board so that they may further their “own” agenda. While most of the time owners come to the realization that the board’s function is to administer the association in its entirety, there is always one or two who insist that things have to be their way.
Unfortunately, our modern day rogues have very little in common with these fond images. They are more in tune with the visions of rogue elephants and rogue waves—unpredictable and usually very disruptive.
These misinformed people have come to be known as “rogues.” This term may bring back fond memories of the lovable rogues of Hollywood fame, i.e. the Maverick brothers, Bret and Bart; Robert Wagner in just about any role he played; Paul Newman and Robert Redford (pick a movie). Well, you get the picture.
This is the person on the board who represents the developer after the association is turned over to the owners. There may still enough unsold units to entitle the developer to have a seat on the board. This person’s company crafted the governing documents and he thinks he knows every way to get around them.
16 echo-ca.org
Our rogues include, but are not limited to:
The Developer Representative
The Owner with a Single Goal This is the owner who has been told 100 times that she cannot have red drapes. She is sure that when she gets on the board she will be able to change everyone’s mind. She has never read the governing documents and can’t see why there should be a problem.
The Retired Owner with Lots of Free Time This owner has memorized the governing documents and is willing to measure every blade of grass to make sure it is within the acceptable height limit. He knows that if everyone would just listen to him everything would run smoothly all of the time.
The Former Board Member with a Grudge This person didn’t get what she wanted the first time she was on the board. She thinks there is a better chance now that there is fresh blood to deal with. She is positive that with enough repetition she can get the newbies to interpret the governing documents her way.
The New Board Member with a Grudge This person has been warned and fined for various violations of the association rules. The rules are way too restrictive and he wants these rules changed or abolished. Governing documents are
only guidelines. No one is expected to actually follow them all of the time. It’s the management company’s fault that the board is enforcing the documents.
Always act in the best interests of the association.
The Developer Representative Quite a cast isn’t it? We have all had to experience one or more of these colorful characters. There is only one way to deal with each and every one of them: When you get elected to the board, take the time to become familiar with the governing documents. Everything you need to know is right there. Leave your preconceived notions and agendas at the door.
As an elected board member, your main concern must be the owners and the association, not the developer.
The Owner with a Single Goal Make sure you give this owner a complete copy of the governing documents and ask that she become very familiar with them. She will generally come to understand why
September 2015 | ECHO Journal
17
all of the rules are for all of the owners.
The Retired Owner with Lots of Free Time He has finally gotten himself elected to the board and thinks his efforts to make the place run perfectly have been validated. Fortunately, he only has one vote and can only run the board members if they let him. He will have to be taught how to “work with others.”
The Former Board Member with a Grudge This person will try to convince everybody that she is looking out for the entire association. In reality she just wants things done her way. Make sure that she has a very legible copy of the governing documents and that she references them
18 echo-ca.org
often. Don’t ignore her efforts; engage her energy in a productive manner for the association.
The New Board Member with a Grudge Now that this person has been elected to the board, he should come to the realization that all of the rules really are for all of the people. He normally is very surprised to learn how disruptive a single owner can be when they choose not to follow the rules.
Don’t let anyone bully you into doing anything just his or her way. The governing documents were written for the whole association to enable people to live in relative harmony within a closed community.
If there is really a problem that needs to be addressed, the directions are in black and white on how to go about getting the documents changed. HINT: Look in the governing documents! The most effective board members are the ones who know how to say that they will take anything under advisement. Then they research the question from all perspectives. When they come back to the owners with an answer, they can be confidant that they have followed the guidelines of the governing documents.
Brenda L. LeClair is an account executive with Certified Management, an Associa firm, in the Kona, HI, office. This article has been previously printed in Association Times, a publication from Associa.
Welcome Stephanie Pullos
Let’s give a warm welcome to ECHO’s new Office Manager Stephanie Pullos. Stephanie recently graduated with a Communication Studies degree from San Jose State University. Prior to joining the ECHO team she interned at Symantec in their video production department where she assisted on several video projects. Stephanie brings years of administrative and customer service experience and looks forward to working with all the members of the ECHO community.
In her free time Stephanie enjoys spending time with her family and being outdoors. If she is not cheering on her favorite sports teams you can usually find her in the kitchen baking delicious treats. Stephanie is excited to join our growing community, and is ready to direct your HOA questions, help with membership updates and events. Please welcome Stephanie to ECHO when you call!
We welcome Stephanie, and we welcome your involvement with us.
September 2015 || ECHO ECHO Journal Journal August 2015
19 19
Self Help by Debra J. Oppenheimer, Esq.
Y
our board wants to go on a property and correct a covenant violation themselves. Can you? Even if you have legal authoriza-
tion, should you? Read on for the risks and rewards of using authorization to go onto someone else’s property to resolve a covenant violation.
20 echo-ca.org
September 2015 | ECHO Journal
21
F
irst and foremost you must review the governing documents for your association, specifically, the recorded Declaration of Covenants. You are seeking to go onto someone else’s property; thus for your authority to stand on the firmest grounds, it must be spelled out in the recorded Declaration, which is the only protection the association has to a claim of trespass. If you locate authority to go onto someone else’s property, make sure it is authority to take the action that you want to take.
Don’t make the mistake of thinking if your Declaration authorizes you to go onto someone’s property to maintain, it that it also gives you authority to install; those are different items and each requires specific authorization. Also, make sure that you know if you do go on someone else’s property and do work that you can recover the costs of that work. While this sounds silly, if there is nothing in your Declaration that states you can recover the costs, you may have authorization to do work but no authorization to recover the costs of your work.
If you find the authorization to go onto someone’s property to complete the task of correcting a covenant violation, be absolutely certain that you follow every obligation prior to entering the property. Send the appropriate notice, provide the hearing if required. Make sure you jump through every hoop.
If you have authority and you have followed every procedure, should you actually go on their property?
Self-help is always a risky tactic to employ if the property has occupants. Many people believe their home is their castle and will defend the property. However, if the property is vacant, the risks discussed below are reduced.
One risk to the association and its agents, is that the occupant will call the police,
claiming breach of the peace, trespassing or criminal mischief. Another concern is the readiness of property owners to protect their property by force. Seriously, some people are very protective of their property rights and may not be against protecting their property by force, including deadly weapons. The police will generally not enforce the “self-help” provision of the Declaration, unless there is an order issued by a court of law. Without a court order, the police will not allow you to “trespass” onto another’s property. You may be issued a citation or just let go with a warning. Either way, you will not be able to correct the violation.
If your concern is that landscaping needs to be installed, there are issues to consider with this as well. One is it is costly.
Two, there is no guarantee that the homeowner will maintain the landscaping once it is installed. Three, how will the association connect a sprinkler system, if that is what is needed or required, as that is inside a home, and there is no provision in any Declaration to go inside someone’s home.
We advise associations to seek a court order before entering onto another’s property to cure a violation.
The association should have its attorney send a letter demanding the violation be cured within a short period of time or further legal action may be taken. Since the letter is being sent by legal counsel, often this will compel voluntary compliance by the homeowners, as well as provide documentation to the court
22 echo-ca.org
that attempts were made to resolve the issues prior to litigation. If there is no compliance in that time frame, the association can proceed with litigation against the homeowners to compel their compliance. The court order will provide that if the owner does not comply within a certain number of days, the association can enter onto the property, correct the violations and charge the owner the costs of the correction.
Seriously, some people are very protective of their property rights and may not be against protecting their property by force, including deadly weapons. The police will generally not enforce the “self-help” provision of the Declaration, unless there is an order issued by a court of law. Without a court order, the police will not allow you to “trespass” onto another’s property.
What is the difference between self-help and litigation to enforce the covenants? Once the association
has a court order to enter a property and cure the violation, the association will have the blessing of the court to enter the property and correct the violations. The entry will not be considered trespassing because it is court sanctioned. So, if the police are called, you can show a certified copy of the court order allowing you to enter the property and the police will uphold the order. Better yet, you should contact the police in advance, let them know what you’re going to do and when, and send them a copy of the court’s order. You should also give the owner notice of what you’ll be doing on the property and when. All this ensures that there is no breach of the peace and the association’s agents are protected from potential harm.
If your board is adamant about using self-help to correct a covenant violation, be sure to follow every requirement in your governing documents. Once that is done,
give the owner ample notice that someone is going to be on their property and when that will occur; then complete the maintenance work as quickly as possible, and be sure that no damage is done to the owner’s property. Finally send a letter to the owner demanding payment for the costs of the work
Debra Oppenheimer is an attorney at HindmanSanchez in Arvada, Colorado, a legal firm that serves as counsel to more than 1600 homeowner associations.
Amazon customers gave it a five-star rating 2015 Condominium Bluebook A Complete Guide to Condominium Living
Member Price: $17.00 Non-Member Price: $25.00 This well-known compact guide for operation of common interest developments in California now includes a comprehensive index of the book and a chapter containing more than 200 frequently-asked questions about associations, along with succinct answers.
Order today from ECHO!
Call 408-297-3246, fax at 408-297-3517 or visit us online at store.echo-ca.org
September 2015 | ECHO Journal
23
By Julie Adamen
24 echo-ca.org
Less is Best When Refining Your Rules & Regulations By Steve Castle, CMCA, PCAM
H
ere’s a challenge. Take out your current set of Rules and Regulations. Now, pretend you are a brand new homeowner who really wants to work with the board
and management by actually reading this package of rules. Be honest. What are your reactions and opinions? Keep them in mind as you read the rest of this article.
September 2015 | ECHO Journal
25
F
ar too many associations have created rules and regulations that seem old, wordy, and sometimes conflicting with each other, with little sense of organization and order. They may have been frequently updated as each new board encounters a new situation that the directors felt required another rule. Community association practitioners know the consequence: pages and pages of hard to understand and hard to enforce rules and other rules that might have been relevant once and are no longer valid and are just ignored.
Here are some steps you can take to refine your Rules and Regulations so they are more effective:
1
Determine the behavior or outcome you want.
For example, if you want to have the front lawns free of dog feces, tell the dog owners that is their responsibility.
2
Be certain that this is a matter that is important enough for the association to invest its time and effort.
Do you or your neighbors really care about the rule and would agree if the board had to spend legal fees to enforce it? For example, is the style of the front door knocker or the number of holiday candles worth fighting over in court?
3
Confirm that the association and board have the authority to enforce this rule.
Your governing documents, state laws and court decisions will be your sources. For example, there continue to be rules prohibiting satellite dishes in non-condominium properties that suggest that the association has far more authority to control those devices than they actually have under the FCC regulations.
4
When possible, write the rule in a constructive, clear manner in laymen’s terms so it
says what you want to happen. And as often as possible, try to minimize the “no’s” and “not’s”. For example, say that bicycle riding is permitted only in the streets instead of saying no bicycle riding on the walks or common areas.
5
Keep the wording simple.
Please don’t think of it as government legislation or believe that the more wordy you make something the more likely it will be followed. For example, if you can control vehicles, just say that only vehicles with current licenses and inspection stickers are permitted on the paved portions of your property. And, if you have a restriction on types of vehicles, just add a very few words to that one sentence.
6
When effective, consolidate.
For example, if after drafting the Rules and Regulations you still have a number of important issues that your residents cannot and you don’t want to list them as “Don’t’s” one right after another, allow one section that says, “All of the following are not allowed by the Association . . .”
7
Eliminate those rules that have never been enforced or are irrelevant.
For example, if the Declaration already prohibits mining, clotheslines or dog kennels, then skip them in the rules.
8 26 echo-ca.org
Confirm each rule is truly enforceable.
Can the poor behavior be seen or documented? For example, can you really determine if a car is parked for more than 24 hours in the guest parking area?
9
Check with your association’s attorney to make sure the rule is valid and reasonable.
10
Finally, add the catch phrase that imposes...
...the obligation of all residents to be reasonable and respectful of neighbors and explain that what they do or leave outside their home affects their community’s lifestyle and property value. That is the criteria the board (or committee) will use in its enforcement effort.
This phrase gives the board the ability to address unique situations not specifically covered by its new set of shorter and more understandable rules. It will also enlighten community leaders who erroneously believe that unless you tell someone they can’t do something, they can.
Enforcing rules and regulations is one of a community association’s most important responsibilities and greatest sources of angst. Often the conflict created between neighbors is of greater consequence than the original rule violation. Taking the steps above will help reduce the chances of these conflicts by approaching the rules development process from a systematic and reasonable perspective. Steve Castle, CMCA®, AMS®, PCAM® is President of Mid-Atlantic Management Plymouth Meeting, PA.
How Do You Join ECHO? Over 1,700 members benefit each year from their membership in ECHO. Find out what they’ve known for years by joining ECHO today. To apply for the membership, sign up online at www.echo-ca.org. For more information about membership and ECHO, call us at 408-297-3246 or visit the ECHO website.
September 2015 | ECHO Journal
27
a s i t a h W r o f t s e u “Req ? ” l a s o p Pro by John Schneider
A
only referred to as RFP) is a “request for proposal” (comm ner or association that formally document drafted by a building ow es, construction, or repair of a solicits a bid for material, servic bids on . Commonly used when soliciting building, system, or component aller jobs being used by associations on sm gly sin rea inc are s RFP ts, jec pro larger contains work being desired. An RFP usually as a tool to clarify and detail the rmation es being requested, and the info vic ser the ut abo n atio rm info c specifi ng with considered by the association. Alo necessary for a bid proposal to be the job that all contractors bidding on ure ens can RFP a rk, wo of pe a sco e material. in the same manner with the sam are bidding to perform the work
28 echo-ca.org
August 2015 | ECHO Journal 29
29
R
epairs to buildings and components of a common interest development are often very specific and must be done on a periodic basis with minimal impact on the residents. Although repairs to a complex may be major (siding or roof replacement) or minor (replacing light fixtures, signage), specifying the needs of the association with how the work is done and what is expected of the contractor will always lead to a better overall project.
Associations are charged with the responsibility to maintain and repair the complex and ensure that the repairs to a complex are performed by qualified contractors and properly done in an efficient manner. Creating an RFP can be a valuable tool when requesting any repairs or reconstruction. A RFP can be a simple one page document or it can be more detailed depending upon the size of the work being requested and the needs of the association. It can be drafted by the association, a construction consultant, or a project manager.
As a basic template, a RFP should have two main parts. The first part would contain a summary of the work to be performed, the general expectations of the association during the course of the project, an estimated time frame for the work to be done, a scope of work listing methods of installation and materials to be used, and any special requirements the association may have with regards to access to the units, where material may be stored, and parking of contractor vehicles. 30 echo-ca.org
The second part of the RFP should detail the submission requirements for contractors presenting proposals. Determine what information you will need from each bidding contractor to ensure that the firm is qualified and capable to do the work. Ask the contractor to describe how the work will be performed and how the contractor will address any special issues associated with the job. This section should also require contractors to state that they are properly licensed and equipped to perform the work; contact information for the company and foreman on the job; and certificates of insurance for general liability, professional liability, and workers compensation.
The RFP should clearly state the date proposals are to be submitted and the date a decision will be made to award the contract. Be sure to request a list of at least three previous jobs that closely reflect the work being anticipated. Prior to selecting a bid proposal, someone from the association must inspect the properties listed as a reference to determine if the quality of the work performed meets with their satisfaction. Sending out an RFP will inevitably trigger phone calls and questions from bidding contractors and requests for site visits to review the project. Associations should appoint one individual to handle all of the information requests and site visits to ensure each contractor sees and receives the same information. This person could be a committee member, a construction consultant, or project manager and should be familiar with the project and the association’s needs.
It is important to remember that bidding a job takes time and manpower that a contractor normally does not charge for. Reputable contractors will not bid jobs that are poorly defined, and they are hesitant to work with associations that do not appear to be organized, do not have a single point of contact, or cannot make timely decisions. Even in these tough economic times, good contractors will be
Reputable contractors will not bid jobs that are poorly defined, and they are hesitant to work with associations that do not appear to be organized, do not have a single point of contact, or cannot make timely decisions.
selective in whom they will work for, and under what conditions. If a request for bids is not clearly stated, it will be harder for an association to determine if the bidding contractors are truly qualified and whether they are actually bidding on the same work
As a final note, when you do ask contractors to submit proposals for work, it is professional courtesy to notify each of the firms
submitting proposals the outcome of the bid review. Whether a contractor is awarded a proposal or not, they have invested a lot of time in preparing the bid and they deserve to be told what the board decided. A proper notice should include the statement that the association has chosen not to accept the contractor’s proposal, and that they appreciated the time and effort the contractor spent in preparing their bid. This can be done via a letter, an email or a simple phone call.
John R Schneider is a licensed General Building Contractor and certified Code Specialist. Since 1985, he has been president of All About Homes, Inc., an East Bay consulting company that specializes in the investigation of construction related deficiencies, the management of projects, and the facilitation of disputes between owners, associations and vendors. He is a member of the ECHO Maintenance Panel. Questions or comments can be directed to him at jrschneider@allabouthomes.com.
FOR A SHARPER IMAGE...
State Lic.# 353779
STEVE TINGLEY PAINTING, INC.
Specializing in Condominiums, Townhomes & Apartments
Part of the Extreme Makeover team since 2004
Color Consulting Complete Bid Presentations Fully Insured & Bonded Exterior Painting Siding & Trim Replacement Fence Repair & Replacement Stucco Repair Deck Rebuilds Concrete Work
San Jose: (408) 272-2667 San Mateo: (650) 348-6682 FAX: (510) 886-4990
Hayward: (510) 886-4828 Walnut Creek: (925) 930-7477
www.tingleypainting.com
info@tingleypainting.com
SERVING NORTHERN CALIFORNIA SINCE 1963! September 2015 | ECHO Journal
31
BOOKSTORE The ECHO Bookstore is your source for publications providing essential information for HOA Board Member service obligations. Order online at echo-ca.org or fill out form on the facing page. W NETION I ED
Robert’s Rules of Order Member Price: Non-Member Price:
$7.50 $12.50
A step-by-step guide to the rules for meetings of your association, the current and official manual adopted by most organizations to govern their meetings. This guide will provide many meeting procedures not covered by the association bylaws or other governing documents.
Construction Defect Claims Member Price: Non-Member Price:
$19.95 $25.00
New buildings can conceal extensive faults. It’s a board’s worst nightmare—rainstorms damage buildings and bring owner complaints. Is legal action necessary? With this new book, you’ll learn about the resolution process for construction problems, and how to handle complex claims.
Community Association Statute Book—2014 Edition Member Price: Non-Member Price:
$15.00 $25.00
Contains the current version of the Davis-Stirling Common Interest Development Act, the Civil Code sections that apply to common interest developments and selected provisions from other codes important to associations.
Home and Condo Defects Member Price: Non-Member Price:
$12.95 $17.95
Construction defect litigation can be confusing, expensive and fraught with legal pitfalls. This eye-opening guide, written by accomplished construction-defect attorneys, is an essential tool for board members who need to understand the legal process.
32 echo-ca.org
2015 Condominium Greenbook Member Price: Non-Member Price:
$17.00 $25.00
This companion to the Condominium Bluebook is an in-depth guide to all aspects of association finances, including accounting methods, financial statements, reserves, audits, taxes, investments and much more. Not for the accounting novice, this is a tool for the treasurer or professional looking for specific information about association finances.
Questions & Answers About Community Associations Member Price: Non-Member Price:
$18.00 $25.00
For 12 years, Jan Hickenbottom answered homeowners’ questions in her Los Angeles Times column on community associations. Now collected in one volume, readers can find answers to almost any question about CIDs.
Board Member Handbook Member Price: Non-Member Price:
$15.00 $25.00
This publication is the essential guidebook for HOA Board members, dealing with governance, finances, insurance and maintenance issues. Revised and updated in June 2012.
Reserve Fund Essentials Member Price: Non-Member Price:
$18.00 $25.00
This book is an easy to read, must-have guide for anyone who wants a clear, thorough explanation of reserve studies and their indispensable role in effective HOA planning. The author gives tips to help board members mold their reserve study into a useful financial tool.
The Condo Owner’s Answer Book Member Price: Non-Member Price:
$15.00 $20.00
An excellent guide to understanding the rights and responsibilities of condo ownership and operation of homeowner associations. The question-and-answer format responds to more than 125 commonly-asked questions in an easy to understand style. A great resource for newcomers and veteran owners.
ciation o s s A unity Book Comm Statute dition 2014 E
Publications to answer your questions about common interest developments Order Online at www.echo-ca.org Dispute Resolution in Homeowner Associations Member Price: Non-Member Price:
$15.00 $25.00
Bookstore Order Form
EDUCATIONAL COMMUNITY FOR HOMEOWNERS 1960 THE ALAMEDA, STE 195, SAN JOSE, CA 95126 PHONE: 408-297-3246, FAX: 408-297-3517
TITLE
QUANTITY AMOUNT
This publication has been completely revised to reflect new requirements resulting from passage of SB 137.
SUBTOTAL CALIFORNIA SALES TAX (Add 8.625%) TOTAL AMOUNT
Yes! Place my order for the items above. Check
Visa
Board Member’s Guide for Contractor Interviews
Credit Card Number
Member Price: Non-Member Price:
Name (please print)
$15.00 $25.00
This report is a guide for directors and managers to use for interviews with prospective service contractors. Questions to find out capabilities and willingness of contractors to provide the services being sought are included for most of the contractor skills that associations use.
MasterCard
Exp. Date
Signature
Association (or company) Email Address City
State
Zip
Daytime Telephone
September 2015 | ECHO Journal
33
directory updates
All current listings may be found in our Professionals Directory available online at www.echo-ca.org.
New Members Coastal Termite and Pest Control 3193 Belick St. Suite 7 Santa Clara, CA 95054 Contact: Derek Dwight Tel: (888) 718.9808
Farmers Insurance | Ritchey Insurance Agency 3037 Hopyard Road Suite R Pleasanton, CA 94588 Contact: Deborah Ritchey Tel: (925) 474.3470
J.J. Commercial Water Heaters 2236 Occidental Road Hayward, CA Contact: Richard Gutierrez Tel: (510) 783.6851
Monthli 124 23rd Street San Francisco, CA 94421 Contact: Alex Burton Tel: (415) 637.3911 R.E. Roofing & Construction, Inc. 941 S. McGlincy Lane Campbell, CA 95008 Contact: Miles Proctor Tel: (408) 626.9320
Become an ECHO Professional Member and receive the benefits of membership. To learn more, visit our membership page at www.echo-ca.org
34 echo-ca.org
advertiser index
about ECHO
Ace Property Management..................23 www.acepm.net
Mutual of Omaha Bank.......................18 www.mutualofomahabank.com
ACT: Advanced Construction Technology............................................17 www.advconsttech.com
Neighborhood Association Management.........................................17 www.neighborhoodam.com
American Management Services........11 www.amspcam.com
PAS: Professional Association Services, Inc..........................................27 www.PAS-INC.com
Applied Reserve Analysis....................18 www.AppliedReserveAnalysis.com Associa Northern California M & C Association Management Services...........................2 www.mccommunities.com Benjamin Moore Paint & Company...26 www.benjaminmoore.com Berding Weil..........................Back Cover www.berding-weil.com Cornerstone Community Management.........................................12 www.cornerstonemgt.biz Eugene Burger Management..............30 www.ebmc.com
PML Management Corporation..........22 www.pmlmanagement.com R.E. Broocker Co...................................11 www.rebroockerco.com Rebello’s Towing..................................10 www.rebellos.net Silicon Valley Civil & Structural Engineers................27 www.Qengineers.com Steve Tingley Painting, Inc..................31 www.tingleypainting.com Union Bank...........................................16 www.HOAbankers.com
WHAT IS ECHO? Serving Homeowners to Build Strong Community Associations The Educational Community for Homeowners (ECHO) is a nonprofit membership corporation dedicated to assisting California homeowner associations. ECHO provides help to homeowner associations on many fronts: finances, legal issues, insurance, maintenance and management. Members receive help through conferences, trade shows, seminars, online education, a monthly full-color magazine and discounted publications.
Who Should Join ECHO? If your association manages condominiums or a planned development, it can become a member of ECHO and receive all of the benefits designated for homeowner associations.
Benefits of Association Membership • Subscription to monthly magazine • Access to members-only online education • Updates to the Association Statute Book • Frequent educational seminars • Special prices for CID publications • Legislative advocacy in Sacramento
ECHO Membership Dues Association Membership HOA 2 to 25 units...........................$130 HOA 26 to 50 units.........................$180 HOA 51 to 100 units.......................$275 HOA 101 to 150 units.....................$375 HOA 151 to 200 units.....................$450 HOA 201 or more units..................$575 Professional Membership.................$500 Association Management Membership.......................................$500 Individual Membership.......................$75 Journal Subscription............................$30
How Do You Join ECHO?
Office 1960 The Alameda, Suite 195 San Jose, CA 95126-2308
Over 1,700 members benefit each year from their membership in ECHO. Find out what they’ve known for years by joining ECHO today. To apply for the membership, sign up online at www. echo-ca.org. For more information about membership and ECHO, call us at 408-297-3246 or visit the ECHO website. August2015 2013 ||| ECHO ECHOJournal Journal September February 2014 ECHO Journal
35 35
ECHO event calendar
RESOURCE PANEL CALENDAR ECHO Resource Panels meet during lunch on weekdays to enable managers, professionals and board members to hear about important topics presented by experts in the industry, and share experiences and issues. The meetings are open to all ECHO members, and those interested in learning about ECHO, offered in a casual atmosphere where the cost of attendance is the price of your lunch. The sessions last about an hour and a half. Check-in with the ECHO Panel Secretary for details and to register.
Please join us: DATE
PANEL LOGISTICS
PANEL SECRETARY
TOPIC
Sept. 3, 11:45 a.m.
North Bay Resource Panel Contempo Marin Clubhouse 400 Yosemite Dr., San Rafael
Denise Wolford, CCAM 415-458-3537
Fraud Prevention
Sept. 8, 11:45 a.m.
Central Coast Resource Panel Michael’s on Main 2591 S Main St., Soquel
Ann Thomas 800-537-4098 ext.7530
Preparing for El Niño
Sept. 16, 11:45 a.m.
Wine Country Resource Panel Serv-Pro 377 Blodgett St., Cotati
Pam Marsh 415-686-9342
Vents, Chimneys
Oct. 9, 11:45 a.m.
East Bay Resource Panel Massimo Restaurant 1603 Locust St., Walnut Creek
Cindy Wall, PCAM 925-830-4580
TBD
Oct. 14, 11:45 a.m.
South Bay Resource Panel Flames Eatery 88 S. 4th Street, San Jose
Geri Kennedy 408-398-4227
Plumbing Issues
Oct. 21, 11:45 a.m.
Wine Country Resource Panel Serv-Pro 377 Blodgett St., Cotati
Pam Marsh 415-686-9342
Emergency
and HVAC
Preparedness
REGULARLY SCHEDULED RESOURCE PANEL MEETINGS Panel
MEETING
location
Maintenance
First Wednesday, Even Months
ECHO Office, San Jose
North Bay
First Thursday, Odd Months
Contempo Marin Clubhouse, San Rafael
East Bay
Second Friday, Even Months
Massimo Restaurant, Walnut Creek
Accountants
Second Monday, Odd months
Scott’s Seafood Restaurant, Oakland
Central Coast
Second Tuesday, Odd months
Michael’s On Main, Soquel
South Bay
Second Wednesday, Even Months
Flames Eatery, San Jose
Wine Country
Third Wednesday, Monthly
Serv-Pro, Cotati
Legal
Quarterly
Varies
36 echo-ca.org
ECHO honor roll
ECHO HONORS VOLUNTEERS Resource Panel Chairs
Seminar Speakers
Recent Contributing Authors
Accountant Panel Adam Haney, CPA 888-786-6000 x317
East Bay John Gill, Esq. Beth Grimm, Esq. David Levy, CPA Andrea O’Toole, Esq. Alex Noland, Esq. Ann Rankin, Esq. David Stompe Mark Wleklinski, Esq.
February 2015 Tyler Berding, Esq. David Levy, CPA Carra S. Clampitt, CCAM Shelly L. Coleman, Esq. Regan Brown Robert E. Aune, Esq.
Central Coast Panel John Allanson 831-685-0101 East Bay Panel Cindy Wall, PCAM, CCAM 925-830-4580 Legal Panel Mark Wleklinski, Esq. 925-280-1191 Maintenance Panel Judy O’Shaughnessy 408-839-6926 North Bay Panel Diane Kay, CCAM 415-846-7579 Stephany Charles, CCAM 415-458-3537 South Bay Panel Susan Hoffman, PCAM 510-683-8614 Wine Country Panel Pam Marsh 415-686-9342 Legislative Committee Paul Atkins Jeffrey Barnett, Esq. Sandra Bonato, Esq. Jerry Bowles Oliver Burford Joelyn Carr-Fingerle, CPA Chet Fitzell, CCAM John Garvic, Esq., Chair Roy Helsing Geri Kennedy, CCAM Wanden Treanor, Esq.
Annual Seminar John Allanson Tyler Berding, JD, PhD Ricky Chu John Garvic, Esq. Sandra Gottlieb, Esq. Matthew Harrington, Esq. Stephanie Hayes, Esq. Julia Hunting, Esq. Zer Iyer, Esq. Ken Kosloff David Levy, CPA Kerry Mazzoni John Neal Andrea O’Toole, Esq. Terin Reeder Amy Tinetti, Esq. Chad Thomas, Esq. Wanden Treanor, Esq. Steven Weil, Esq. David Zepponi
March 2015 Paul P. Terry, Jr., Esq. Patricia Wendleton David Swedelson, Esq. Robert M. Nordlund, PE, RS Bob Gourley April 2015 Julie Adamen Thomas Connelly Robert Rosenberg Rosalia Burgueño Tapia, Esq. Burt Dean May 2015 John Allanson Sharon Glenn Pratt, Esq. Tom Del Conte Helen Loorya, PCAM, CCAM, CMCA Hanh Pham, Esq. June 2015 Ken Kosloff Tom Fier, Esq. Alex Guy and Rob Rosenberg David Larsen, Esq. Steven S. Weil, Esq. July 2015 Jeffrey A. Barnett, Esq. Kurtis Shenefiel, PCAM, CCAM Tom Fier, Esq. Bob Gourley Tyler P. Berding, J.D., Ph.D. Ann Thomas August 2015 Tyler P. Berding, Ph.D., J.D. Chris Sigler, B.S.C.E., C.D.T. Charlotte Allen Julie Adamen Robert Booty
September 2015 | ECHO Journal
37
legislation at a glimpse
Catch up on 2015 Legislative Session! The bills below represent the ECHO Legislative Committee’s review of the 2500 bills introduced in Sacramento this year. As we approach the end of this year’s Legislative Session, look closely for bills that may impact your HOA. All bills must pass out of the Legislature by September 11th in order to reach the governor’s desk. For the most up-to-date information, visit the HOA Advocacy section at the ECHO website:
Current Legislation Bill Information
Summary
AB 349
Turf & Synthetic Grass
Oppose
Amended 6/17. This bill would further narrow the ability of an HOA to restrict low water-using landscaping. It would void any provision of the governing documents or HOA guidelines that prohibit the use of “artificial turf or any other synthetic surface that resembles grass.” A recent amendment also prohibits HOAs from requiring an owner to “remove or reverse water-efficient landscaping measures” when California’s state of emergency ends. ECHO supports California’s efforts to reduce water consumption in HOAs, but believes that each HOA should be able to establish its own low water-using landscaping standards.
Author: Gonzalez Status: In Senate Judiciary
AB 587
Mobilehomes: Nonpayment or Late Payments
Support
Amended 6/23. Current law prohibits the State from issuing a new title to a mobilehome buyer when of any outstanding charges or liens exist as a result of the previous owner’s failure to pay certain fees and penalties, including the vehicle license fee. This bill would waive those fees and allow for the title transfer.
Author: Chau Status: In Senate Transportation and Housing
AB 596
FHA Approval Disclosure
Oppose Unless Amended
Amended 6/9. This bill would require a common interest development to disclose its status as a Federal Housing Administration (FHA)-approved condominium project. This information is publicly available online, making this obligation is unnecessary. It also creates a potential liability for associations. ECHO favors an amended disclosure that would inform recipients that the information is available from the FHA website.
Author: Daly Status: Passed Legislature. To Governor.
AB 1152
Limiting Construction Defect Lawsuits
Oppose
Now a two-year bill. This bill narrows the options for associations seeking recovery for construction defects. Recent case law allowed associations to recoup damages through sources and methods not outlined in Section 896 of the Civil Code. This bill would establish Section 896 as the sole remedy for construction defect claims.
Author: Frazier Status: In Assembly Judiciary
AB 1335
Fees on Recorded Documents
Oppose
Amended 6/3. In order to fund affordable housing, this bill would impose a $75 fee whenever a document is recorded in California. Associations record numerous documents, including governing documents and liens. ECHO believes that recorded documents are not the appropriate instrument to fund affordable housing.
Author: Atkins Status: Assembly Third Reading
38 echo-ca.org
legislation at a glimpse
Current Legislation (continued) Bill Information
Summary
AB 1448
Clotheslines as Solar Energy Systems
Neutral
Amended 7/15. This bill originally identified clotheslines as a “solar energy system” and prohibited associations from restricting or prohibiting the installation and use of clotheslines. The author worked with ECHO to address safety and oversight concerns, and amended the bill to allow associations to place reasonable restrictions on the use of clotheslines and drying racks.
Author: Lopez Status: Senate Third Reading
SB 244
Mobilehomes: Injunctions
Support
This bill would extend, indefinitely, the right of a mobilehome park to petition the court to enjoin a continuing or recurring violation of a reasonable rule or regulation of the park.
Author: Vidak Status: Signed by Governor
SB 290
Substituted Service of Process
Support Status: In Senate Judiciary
Now a two-year bill. In a foreclosure proceeding, associations are required to provide certain notices by personal service. When an owner is unavailable, this bill would allow the association to serve the owner by “substituted service,” a less restrictive process.
SB 328
Notice of Pesticide Use by Landlords
Oppose Unless Amended Status: In Assembly Judiciary
Amended 5/4. This bill would require that a landlord or the landlord’s authorized agent provide a current tenant with notice about the use of pesticides at the dwelling unit. ECHO supports an amendment clarifying that an association, its officers, directors, agents or representatives would not be considered an “authorized agent” of a landlord.
SB 419
Sale Signs in Mobilehomes
Watch
Amended 7/6. This bill would permit the use of yard-arm style “for sale” signs and would authorize management to require the use of a step-in L-frame sign in mobilehome parks, some of which are common interest developments.
Author: Vidak
Author: Hueso
Author: McGuire Status: Assembly Third Reading
SB 477
Mobilehomes: Property Tax Postponement
Support
Amended 4/29. This bill would allow qualified individuals and owners of mobile or floating homes, some of which are common interest developments, to seek postponement of ad valorem taxes. This option is already available to owners of real property.
Author: Leyva Status: In Assembly Revenue and Taxation
SB 655
Mold & Substandard Housing
Watch
Amended 7/7. This bill specifies that visible or otherwise demonstrable mold growth, excepting mold that is minor and found on surfaces that can accumulate moisture as part of their proper and intended use, is a “substandard condition” and could cause a building in which such a condition is found to be deemed substandard.
Author: Mitchell Status: In Assembly Appropriations
What Do You Think? Read more about HOA legislation on our website or visit our Facebook page and join the discussion. On the web: echo-ca.org/hoa-advocacy, On Facebook: facebook.com/echoorg
September 2015 | ECHO Journal
39