Journal_10_05 by Echo

May 2010

A Journal for California Community Association Leaders

echo-ca.org

ALSO INSIDE THIS ISSUE:

• Making Accommodations • Recreational Use Immunity • When Is a Permit Required?

Change Service Requested ECHO 1602 The Alameda STE 101 San Jose, CA 95126

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trust in ANGIUS & TERRY LLP to solve their legal problems for over 30 years. Through the years ANGIUS & TERRY LLP has had a single mission: To provide our clients with exceptional service and superior legal representation all built on the solid bedrock of long term relationships. For results contact us today. 800.680.4001 www.angius-terry.com Walnut Creek â&#x20AC;˘ Sacramento Reno â&#x20AC;˘ Las Vegas

Contents Got Lead?—page 18 The ECHO Journal is published monthly by the Executive Council of 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 person 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.

2010 Annual Seminar Begins June 18 The 38th ECHO Annual Seminar is only a month away. Many exciting presentations and outstanding speakers are lined up for this year’s event. Register now for California’s largest CID conference.

Recreational Use Immunity For CIDs Do you worry about liability when people who are not owners or residents use your property for recreation? In this article attorneys Sharon Pratt and Pat Wendleton offer good news that should put your mind at ease. The California Legislature has enacted statutes that give property owners immunity from liability.

The ECHO membership list is never released to any outside individual or organization.

Making Accommodations Associations should enforce governing documents in a uniform and nondiscriminatory manner. But in certain cases it is against both California and federal law to enforce governing documents to meet the housing needs of the disabled. Attorney Jeff Barnett discusses proper adherence to these requirements.

When Is a Permit Required? The permit process is one of the most important parts of the construction process and the one often misunderstood. Contractor John Schneider describes the permit process and what associations should do about them.

Departments

Executive Council of Homeowners, Inc. 1602 The Alameda, Suite 101 San Jose, CA 95126 408-297-3246 Fax: 408-297-3517 www.echo-ca.org info@echo-ca.org Office Hours: Monday–Friday 9:00 a.m. to 5:00 p.m.

Board of Directors and Officers President David Hughes Vice President Karl Lofthouse Treasurer Diane Rossi Secretary Dorothy Kopczynski Directors Paul Atkins John Garvic Robert Rosenberg Richard Tippett Steven Weil

Jerry L. Bowles David Levy Kurtis Shenefiel Wanden Treanor

Executive Director Oliver Burford

28 News from ECHO 29 Legislation at a Glimpse

Communications Coordinator Tyler Coffin

30 Directory Updates

34 ECHO Bookstore 36 Events Calendar

May 2010

A Journal for California Community Association Leaders

38 ECHO Volunteers 41 ECHO Marketplace

ECHO Mission Statement ALSO INSIDE THIS ISSUE:

• Making Accommodations • Recreational Use Immunity • When Is a Permit Requied?

On the Cover ECHO Annual Seminar—page 6 4

May 2010 | ECHO Journal

Legislative Consultant Government Strategies, Inc. Design and Production George O’Hanlon

40 Letters to the Editor 41 Advertiser Index

echo-ca.org

The mission of ECHO is to advance the concept, interests and needs of homeowner associations through education and related services to board members, homeowner members, government officials and the professionals in the industry.

Be an HOA Survivor ECHO Annual Seminar June 19, 2010 See page 42 for details

ECHO 38th Annual Seminar June 19, 2010 â&#x20AC;&#x153;Be an HOA Survivorâ&#x20AC;? is Theme for 2010

n-site registration at the 2010 ECHO Annual Seminar will begin at 7:30 a.m. on Saturday, June 19, in the main lobby at the Santa Clara Convention Center. Now is the time for homeowner association board members and professionals to make advance reservations for this event.

education and fun at this important event. Convince them that they need to hear updates about every important CID responsibility and issue, to see new products and to share in the large number of prizes and favors distributed by 125 Trade Show exhibitors.

Ask your fellow board members and your associates who live in other common interest developments to join you for a day of

Annual Seminar sessions this year as always will address many of the challenging concerns currently facing association board

ECHO Journal | May 2010

members. Just a few of the highlights of the 2010 program are listed below: • The “HOA University” track will review every major aspect of board duties and responsibilities for beginning board members. Certificates will be awarded to those who complete the entire program. • Update on Proposed New Legislation that will affect community associations. • Conflict Resolution for Directors: Learn practical skills in this dynamic session that you will use immediately to tackle and resolve small and large conflicts in your community. • Ethics for Board Members • Special presentations by super-exciting speakers Julie Adamen and Larry Pothast The complete seminar program and registration information appear on page 43 in this issue. The 2010 Seminar and Exhibit will follow the same format as last year’s seminar. There will be one full day of educational sessions, a CACM course manager education (See the course description on page 42 in this issue.) on Friday afternoon and the usual 300-page program book. A Friday evening reception honoring exhibitors is planned as a part of the 2010 Seminar. The Trade Show will be open all day Saturday. ECHO publications will be on sale throughout the seminar.

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Annual Seminar sessions this year as always will address many of the challenging concerns currently facing association board members. Rooms are available at the Hyatt Regency Santa Clara adjacent to the Convention Center at the special ECHO rate of $89 single or double. Reserve directly with the Hyatt Regency (408-986-0700) to obtain the special rate, being sure to mention the Executive Council of Homeowners. This special rate is available only until June 1.

Scholarship Program A limited number of scholarships to cover the cost of Annual Seminar tickets are available, thanks to the generosity of a number of member businesses and professionals. These scholarships are generally reserved for board members or owners who are first-time attendees at the Annual Seminar or who are residents of smaller, poorly funded associations or associations with other sorts of serious operational problems. Preference will be given to representatives of ECHO member associations, but membership is not mandatory. Recipients are not required to be members of their association board.

• Detailed Financial Reporting • Lender Servicing and Collection • Personal Obligation Program

• Short Sale Negotiations • Bankruptcy Monitoring • Online Case Set Up

AND MORE . . . Phone (408) 363-9600 • Fax (408) 225-8864 • Toll Free (877) 363-9600 • ContactUs@asaspcollect.com

The Seminar is the place to get all the upto-date information about operating your association efficiently and legally. Awarding of scholarships will be handled by selected managers and the ECHO office. Anyone who wishes to be considered for a scholarship should apply, preferably in writing, to Oliver Burford, ECHO’s Executive Director, at the ECHO Office. Summary The ECHO Annual Seminar is the do-notmiss event of the year, and every ECHO member association should participate. The Seminar is the place to get all the up-to-date information about operating your association efficiently and legally. Complete the ticket order form on page 43 and mail or fax it to ECHO today. Take advantage of the earlybird registration rates and save $10 on every ticket. You may also reserve by telephone to the ECHO Office or on the ECHO website, using your Visa or MasterCard. Plan to attend all day to take full advantage of the information that will be available. You don’t want to miss this exciting event—California’s largest annual homeowner association seminar and trade show. No matter how many previous seminars you have attended, there will be plenty of new information in 2010 to hold your attention. We want to see you there! ECHO Journal | May 2010

May 2010 | ECHO Journal

By Jeffrey A. Barnett, Esq.

Making Accommodations t is well understood that homeowners associations should enforce the governing documents of the association in a uniform and nondiscriminatory manner so as to avoid a possible defense of discriminatory enforcement, although the association has some good faith discretion concerning when and how to do so. However, in certain cases it is against both California and federal law for the association to enforce the governing documents where necessary to meet the housing needs of the disabled. The Department of Housing and Urban Development reports that in 2008, 44 percent of the complaints filed were based on disability discrimination in contrast to 35 percent based on race. Because of this growing liability, directors must be sensitive to the rights of homeowners with disabilities.

California Law Requiring Accommodation California Government Code Sections 12955.3 and 12926 define physical and mental disabilities. The persons so

defined are entitled to accommodations in the enforcement of housing policies and practices such as the use restrictions in the CC&Rs and the association rules. Section 12926 (i)–(k) provides: (i) “Mental disability” includes, but is not limited to, all of the following: (1) Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section: • “Limits” shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

ECHO Journal | May 2010

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• A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult. • “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working. (2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services. (3) Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2). “Mental disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. (k) “Physical disability” includes, but is not limited to, all of the following: (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity. For purposes of this section: (i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. (iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working. (2) Any other health impairment not described in paragraph (1) that requires special education or related services. (3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part. (4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult. (5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2). (6) “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs. (l) Notwithstanding subdivisions (i) and (k), if the definition of “disability” used in the Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (i) or (k), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (i) and (k). California Government Code Section 12927 (c) (1) defines “discrimination” as including the refusal to make reasonable accommodations in rules, policies, practices,

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Fair Housing Amendments Act of 1988 The federal Civil Rights Act of 1968, also known as the Fair Housing Act, bars discrimination in housing because of race, color, religion, sex or national origin. More recently, the federal Fair Housing Amendments Act (FHAA) of 1988 was adopted by Congress to recognize disabilities as an additional category of prohibited discrimination in the sale or rental of housing and the furnishing of housing services. The Fair Housing Amendments Act and its implementing regulations also enhance administrative enforcement of the fair housing laws by the Department of Housing, the United States Attorney General, and private individuals. The Act makes it a crime to interfere with housing rights available to persons with handicaps. Condominium, cooperative and other shared housing is specifically identified in the implementing regulations as subject to the Fair Housing Amendments Act. The Fair Housing Amendment Act of 1988 protects (1) individuals with a physical or mental impairment that substantially limits one or more of a personâ&#x20AC;&#x2122;s major life activities; (2) an individual with a record of such an impairment; or (3) an individual who is regarded as having such an impairment, whether or not the individual is in fact so impaired. The Act, therefore, protects persons with physiological disorders or conditions, cosmetic disfigurement, anatomical loss affecting a major body system, and mental or psychological disorders, such as retardation or emotional or mental illness. The Fair Housing Amendment Act obviously also applies to individuals who are visually or hearing impaired or impaired in their mobility. The Act extends to less obviously protected individuals, such as those with epilepsy, cancer, heart disease, diabetes, HIV infection and alcoholism. The Act applies where any of these conditions substantially limits â&#x20AC;&#x153;any major life activityâ&#x20AC;? such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working. It is unlawful to discriminate against any person in the provision of services or facilities in connection with a dwelling because of a handicap of a person or a person residing in Continued on page 16

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or intending to reside in a dwelling after it is sold, or any person associated with that person. The privileges, services or facilities associated with a dwelling would include maintenance or repairs required by the common interest development under the declaration or the Davis-Stirling Act, access to the common area facilities, and participation in association activities. The Act creates affirmative duties of housing providers to persons with disabilities, including the obligation to allow certain modifications of existing premises, and the duty to make reasonable accommodations in rules, policies, practices and services to accommodate the needs of the disabled. As under California law, the failure to perform these affirmative duties is an act of discrimination. This means that the board has an affirmative duty to not enforce the rules where necessary to accommodate mentally or physically disabled individuals.

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The Act creates affirmative duties of housing providers to persons with disabilities, including the obligation to allow certain modifications of existing premises... A handicapped resident may make changes to the exterior elements of a building, including the public and common use areas of a building, as well as the residence interior. The Act requires that a handicapped individual, at his own expense, be allowed to make reasonable modifications to enable him or her to make the property more accessible or useable. Examples of such modifications include the installation of foldback hinges to enable a person in a wheelchair to go through a door, and the construction of a ramp to enable a person in a wheelchair to enter a dwelling unit, lounge, 16

May 2010 | ECHO Journal

lobby, laundry room, recreational area or passageways among and between buildings. A homeowners association may require reasonable assurance that such modifications will be done in a workmanlike manner and that required building permits will be obtained. However, the full extent to which an association’s architectural control authority can be exercised to control the aesthetics of such modifications is not yet well established in the law. The individual making modifications to public use or common areas may not be legally required to restore the property in the future. These rights of modification under the federal Fair Housing Amendments Act are more liberal than those allowed under state law; the federal law controls in the event of a conflict. Boards receiving architectural requests for modifications necessary for blind, visually handicapped, deaf or physically disabled residents therefore must consider not only the architectural modification rights of a resident under the Davis-Stirling Act, but also under applicable federal law. The Fair Housing Amendments Act, as noted, requires associations to make reasonable accommodations in rules, policies, practices or services when necessary to afford handicapped persons equal opportunity to the use and enjoyment of a dwelling, including public use and common area use. The “reasonable accommodation” requirement is a potential trap for the unwary. The courts have held that accommodation is “reasonable,” and is therefore required, unless it imposes an undue financial or administrative burden on the property owner or requires a fundamental alteration in the nature of the housing program. Common Accommodation Requests and Responses Among the frequent accommodation requests is an application by an upstairs resident to install hardwood or other hard surface flooring, although it is prohibited in the declaration, because of allergies suffered by one or more of the household members. The request may be accompanied by a letter from an allergist stating that the removal of carpet is necessary to control allergic symptoms. The board may be required to grant the accommodation, but on certain conditions to protect quiet enjoyment of the lower unit, such as by requiring carpet runners in traffic patterns, and requiring the installation of carpet when the allergic resident moves out. The association may be able to negotiate a ECHO Journal | May 2010

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recordable agreement so that it is binding on successors owners. A physically disabled resident may request parking privileges not available to other members of the association, such as the right to park a car in a guest parking space, which is near and convenient to the residence or the right to park an oversized vehicle outside the garage. If the resident is known to have a physical disability or presents such medical evidence to the board, the association has an affirmative duty to make a reasonable accommodation, such as granting an exception from the normal parking rules. The Act has been construed to require the party controlling the housing to waive enforcement of a parking rule for the benefit of a resident to allow her residential medical care provider to park without paying a usual fee. Some accommodation requests present particular challenges, as when a mentally disturbed resident asks that the nuisance clause in the declaration not be enforced as to him, despite neighbor complaints that of yelling, pounding on the walls and floors and confrontational behavior. Enforcement of California Accommodation Right Enforcement of the California Fair Housing Act may be by administrative action by the California Department of Fair Employment and Housing or by the California Attorney General. Relief may include access to housing through injunctive or equitable relief, a civil penalty up to $10,000 for a first violation, $25,000 for a second violation and $50,000 for a third violation, and actual damages. Alternatively, an injured party can file a civil lawsuit within two years of the occurrence of the discriminatory housing practice. In a private civil action, the court may award injunctive relief, monetary damages, and civil penalties of $50,000 for a first violation and $100,000 for any subsequent violation and may award the reasonable attorney fees and costs of the prevailing party. Enforcement of Fair Housing Amendments Act The Fair Housing Amendments Act can be enforced in a number of ways. The Secretary of Housing and Urban Development (HUD) may investigate housing practices to determine whether an administrative complaint should be brought. An aggrieved individual or the Secretary of HUD may file a complaint within one year after an alleged discriminatory housing practice has occurred. The complaint must then be

answered within ten days of service and must be signed under penalty of perjury. The complaint may be prosecuted by HUD or referred to a state or local public agency certified by HUD. An attempt to conciliate the complaint is generally required, which can lead to an agreement between the respondent and the complainant. The conciliation agreement can include damages caused by humiliation or embarrassment, attorney’s fees, and other equitable and injunctive relief. HUD also may issue a “charge” on behalf of the aggrieved person to commence formal administrative legal proceedings, or refer the matter to the Attorney General for appropriate action, including criminal penalties. If a charge is issued, the complainant or respondent may elect to have the claims decided in a civil action, in lieu of an administrative proceeding, in which case the matter is litigated in the federal court. Relief available for violations of the Act includes temporary or permanent injunctions or restraining orders, monetary damages, and civil penalties in an amount not exceeding $50,000 for a first violation, and not exceeding $100,000 for any subsequent violation. In addition, the court has the discretion to allow a prevailing private litigant reasonable attorney fees and costs. In a civil action brought by an aggrieved person for a discriminatory housing practice, the court may award the plaintiff punitive damages, notwithstanding the absence of actual loss to the plaintiff. Conclusion Because homeowner associations have an affirmative duty to make accommodations in their policies and practices to provide physically and mentally disable residents full enjoyment of their property, boards must properly address requests for special treatment. Legal counsel is appropriate to evaluate the request, determine if it is properly documented and supported and to advise concerning possible conditions for the protection of the association and its members.

Jeffrey A. Barnett is an association attorney with legal offices in San Jose. He is a past member of ECHO’s Board of Directors and a current member of the Legal Resource Panel, the Legislative Committee and several regional resource panels. ECHO Journal | May 2010

By Pat Wendleton, Esq. and Sharon Glenn Pratt, Esq.

Recreational Use Immunity For CIDs o you worry about liability when you see people who are neither owners nor residents using your property for recreation? Are they using the common area walking or hiking paths? Playing on your lawns and playground? Skateboarding on your streets? Taking a short-cut to the beach? Here’s some good news from attorneys, for a change, which should put your mind at ease. The California Legislature, in its desire to promote and encourage owners of private property to allow the public to access their land for recreation purposes, has enacted statutes which give you, the property owner, immunity from liability. In 1963, the Legislature enacted Civil Code section 846, which provides that landowners are not required to and/or have no duty “to keep the premises safe for entry or use by others for any recreational purpose.”

May 2010 | ECHO Journal

Neither is it required “to give any warning of hazardous conditions, uses of structures, or activities” to those entering for recreation purposes. Civil Code Section 846 states: An owner of any estate or any other interest in real property, whether possessory or non-possessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section. A “recreational purpose” as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding,

winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites. An owner of any estate or any other interest in real property, whether possessory or non-possessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section. This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the considera-

tion, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. Nothing in this section creates a duty of care or ground of liability for injury to person or property. Sure, it is true that “a landowner owes a duty of reasonable care to persons coming upon his land...”1 But, Civil Code Section 846 provides an important exception to this rule, when the use is for recreational purposes. The exception applies even when the association has been negligent. Section 846 allows and encourages owners or persons with an interest in property “to permit people to use their property for recreational use without fear of reprisal in the form of lawsuits.”2 Section 846 specifically provides that giving permission or allowing persons to use one’s property for

ECHO Journal | May 2010

recreational purposes does not extend to the users any assurance that the premises are safe for recreational purposes. In other words, the owner is not liable when it allows strangers to the association to use the property for recreational purposes. If this sounds too good to be true, it is probably because there is a common misconception that owners of property are always liable to someone who gets hurt on their property. Not true. However, there are some parameters which apply to this immunity. As you probably understand by now, it is key that the property is being used for recreational purposes. Section 846 provides a list of illustrative activities that qualify as recreational. The list includes hiking, camping, water sports, horse back riding and even use of vehicles, such as snowmobiles and motorcycles, for recreational purposes. In 1978, the Legislature revised Section 846 to broaden recreational activities and changed the wording to “any recreational purpose.”3 Since that time, the courts have applied a very loose standard, finding even that children playing on farm equipment constituted a “recreational activity.” Other examples of recreational use findings in California case law include kite flying, tree climbing, picnicking, and skateboarding.4

1 Civil Code section 1714. 2 Johnson v. Unocal (1993) 21 Cal.app.4th 310, 315. 3 Ornelas v. Randolph (1993) 4 Cal.4th 1095. 4 Ornelas v. Randolph (1993) 4 Cal.4th 1095, Jackson v. Pacific Gas & Elec. Co. (2001) 94 Cal.app.4th 1110, Valladares v. Stone (1990) 218 Cal.app3d 363, Johnson v. Unocal (1993) 21 Cal.app.4th 310, Calhoon v. Lewis (2000) 81 Cal.App.4th 108. 5 Ornelas v. Randolph (1993) 4 Cal.4th 1095.

With the possible exception of property that is an active construction site, immunity extends whether or not the land is of a type suitable for recreational activities. Neither is Section 846 immunity limited to land in its natural condition. No distinction between natural and artificial conditions is made in applying this statute.5 Yes, this immunity does apply to your swimming pool! However, it does not override the state and local ordinances requiring fences around pools. There are only three instances in which the immunity provided by Section 846 does not shield from liability. The situations are: • Where an individual is “expressly invited, rather than merely permitted” to come on the premises, the immunity provided by Section 846 does not apply. The invitation need not specifically be for recreational purposes.6 • Where there is consideration (fee) charged in exchange for permission to enter the property. Typically, the consideration is in the form of an entrance fee.7 • Where there is “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity...” So, if you charge outsiders a fee to use the common area property for recreation, you will no longer have the protection of this California statute. And if you expressly invite people to an event or to otherwise use your property, (such as guests who are invited to swim at the pool) you will similarly give up this immunity. The third exception, for “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity...” must be more than negligence. “[I]n the context of tort liability... the usual meaning

6 Calhoon v. Lewis (2000) 81 Cal.app,4th 108. 7 Miller v. Weitzen (2005) 133 Cal.App.4th 732.

May 2010 | ECHO Journal

Continued on page 24

New election rules: $500 In today’s economic crisis, there may be some items that associations can cut to reduce costs. ECHO membership is not one. Let’s face it, educated board members are better fiduciaries, which helps them to avoid costly law suits and possibly personal liability. ECHO is the premier resource in California for board member education. ECHO offers new articles each month with practical and easy to understand advice about current California requirements, and what may be on the horizon. ECHO staff is available by phone or E-mail to answer members’ questions about association problems or to recommend competent professional services when necessary. And with discounted member rates at more than a dozen educational events throughout the year, ECHO is simply the best educational resource for California homeowners.

Avoid Litigation Each year, as a member benefit, ECHO sends every board member a copy of the updated Community Association Statute book. Every issue of the ECHO Journal and every seminar examine one or more aspects of compliance with association law, because one of the major causes of expensive litigation is ignorance of the law.

Mailing ballots: $200 Make Better Financial Choices Many associations struggle to understand reserve funding requirements and strategies, the benefits and disadvantages of using special assessments, proper collections practices, and even how to determine what components the association is required to maintain. At a time when wise financial planning is essential, ECHO members have access to a wealth of articles about reserve funding, budgeting, insurance, collections, and much more. Fight Costly Regulation Every year, Sacramento legislators introduce more legislation that confuses the job of California board members and increases the costs of compliance. ECHO is committed to fighting unnecessary regulation in California and promoting the interests and welfare of common interest developments. Hire Competent Professionals ECHO offers a variety of articles and publications to help members evaluate their service providers, including questions to ask prospective management firms and contractors. All ECHO Journal articles are available to members at no cost, and publications are sold to members at a discount.

Avoiding a lawsuit: Priceless. Spend a Little, Get a Lot The cost of ECHO membership is minimal. In a worsening economy, associations are looking to cut big expenses from their budgets. Yet, ECHO membership is as little as 25¢ per unit each month. For that small cost, here’s what every board member receives as part of being a member of ECHO: • A subscription to the ECHO Journal • An annual copy of the current Community Association Statute book • Unlimited access to ECHO’s library of past articles • Telephone consultations with ECHO staff about their problems • Reduced fees for ECHO events • Discounted prices on publications • And much more… In These Tough Economic Times, ECHO Membership is a Necessity As the only California organization devoted exclusively to board member and homeowner education, ECHO is a one-of-a-kind resource that your association can’t afford to lose.

Recreational Use Immunity Continued from page 22

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assigned to ‘willful,’ as well as to ‘wanton’ and to other similar terms is that ‘the [person] has intentionally done an act of unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’” This same description has been used “to explain when a failure to guard or warn against a dangerous condition has been ‘willful or malicious’ for the purposes of the recreational immunity statute…”8 Liability can be established only when the injured person proves that the owner had (1) actual or constructive (should have known) knowledge of the danger, and (2) actual or constructive knowledge that injury is probable, not just possible, as a result of the danger, and (3) that the owner intentionally failed to do something about the danger. Thus, if it is known by an association board, whether because of past accidents at a particular spot, or based on expert advice, that something on its property is unreasonably dangerous, and the board nevertheless knowingly fails to protect against the risk, then the immunity is lost. An Easement Does Not Result from the Use for Recreational Purposes by the Public An easement is an interest in the land of another that entitles the owner of the easement to a limited use and enjoyment of the owner’s land. An easement may arise without the owner’s permission, and without any written and recorded paperwork, when a property is adversely used by the public for at least five years. However, you do not have to worry about an easement being created when the public is traipsing across your association property to photograph your beautiful view of the city, launching its hang-gliders from your highest peak, or using your lovely paths and trees for bird watching. Not only has the Legislature acted to shield a landowner from liability when it allows its property to be used for recreational purposes; in 1971 it enacted Civil Code section 1009 for the purpose of eliminating the threat that owners of real property will lose rights in their property if they allow or con-

8 Manuel v. Pacific Gas and Electric Co. (2009) 2009 Cal.App. Lexis 719.

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For more information please visit us at www.massingham.com or call 800 863 MASS tinue to allow members of the public to use, enjoy or pass over their property for recreational purposes.9 As a result, allowing the public to use property for recreational purposes does not create an easement, whereby the public can continue the use even after the owner wishes the public to discontinue using the property. Beware, however, that as a result of the strong public policy of allowing public access to shoreline areas, there is an exception for ocean front and beach properties. The protections of Section 1009 do not apply to property that lies within 1,000 yards inland of the mean high tide line of the Pacific Ocean and its harbors, estuaries, bays and inlets.10 Public easements to access the beach through private property are often upheld by California courts. This does not mean that the landowner gives up the recreational use immunity and becomes liable for injuries occurring on the property, but it does mean that an easement may develop. It goes without saying (but we’ll say it anyway) that your common area land should always be kept properly insured against liability risks as well as property damage. We should also note that it is often up to your

attorney to raise this defense of recreational use immunity when the association is sued, as some personal injury attorneys are not aware of it and will bring a lawsuit for injuries occurring during recreational use of land. Your association board can sleep easier knowing that it need not attempt to prevent non-owners or non-residents from using common area property for recreational purposes, in order to protect the association from liability. As set forth above, an association is shielded from liability, and from the loss of its property rights, when allowing the public access to its common area property for recreational purposes.

Sharon Glenn Pratt is founder of the law firm of Pratt & Associates, an ECHO member firm. She emphasizes civil litigation, with extensive experience in community association law, including creation, amendment and enforcement of governing documents. Pat Wendleton also emphasizes in civil litigation, with substantial experience in community association construction defects and transactional law.

9 Civil Code section 1009 provides: (a) The Legislature finds that:

(1) It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use to supplement opportunities available on taxsupported publicly owned facilities. (2) Owners of private real property are confronted with the threat of loss of rights in their property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes. (3) The stability and marketability of record titles is clouded by such public use, thereby compelling the owner to exclude the public from his property. (b) Regardless of whether or not a private owner of real property has recorded a notice of consent to use of any particular property pursuant to Section 813 of the Civil Code or has posted signs on such property pursuant to Section 1008 of the Civil Code, except as otherwise provided in subdivision (d), no use of such property by the public after the effective date of this section shall ever ripen to confer upon the public or any governmental body or unit a vested right to continue to make such use permanently, in the absence of an express written irrevocable offer of dedication of such property to such use, made by the owner thereof in the manner prescribed in subdivision (c) of this section, which has been accepted by the county, city, or other public body to which the offer of dedication was made, in the manner set forth in subdivision (c). 10 Civil Code section 1009 (e), Gion v. City of Santa Cruz (1970) 2 Cal.3d 465. ECHO Journal | May 2010

By John R. Schneider

When Is a Permit

Required?

he permit process is one of the most important parts of any construction process and the one often misunderstood by both home owners and contractors. Requiring permits and inspections is the only way a municipality can ensure that work to a building will meet minimum levels of health and safety. Work not done to code can compromise the safety of a structure, present significant disclosure issues when the property is sold, and may affect insurance coverage in the event of an accident or property damage resulting from the work performed. These exposures to liability are the main reasons all work should be done with permits.

prior to the erection, construction, reconstruction, installation, moving or alteration of any building or structure.” This requirement applies to work done by anyone, whether a contractor, home owner or association. There are four types of permits required in residential construction; building, electrical, plumbing and mechanical permits. The instances when a permit is not required are listed in the California Building Code, but it is always wise to check with the local authority. Though the work might not require a permit, Section 108.4.1 continues with this admonition:

The requirement for a building permit is in the 2007 California Building Code, which states:

“Exemptions from permit requirements shall not be deemed to grant authorization for any work to be done in any manner in violation of other provisions of law or this code.”

“§108.4.1 Permits. A written construction permit shall be obtained from the enforcing agency

A simple repair to a water line, exterior siding, or to a roof covering would usually

May 2010 | ECHO Journal

not require a permit. However, replacing a section of damaged sewer line, re-routing a water supply line damaged by tree roots, adding additional lighting to a common area, or replacing a furnace or water heater would usually require that a permit be obtained. A permit allows a municipality to inspect and approve work being performed before it is covered up, and once more when the job is completed. You’d think that replacing a sewer line would be straightforward, but there are several things that must be checked to ensure the work is done properly. I’ve seen many repairs where improper fittings were installed or the piping was not installed on a firm compactible base. These conditions could restrict the proper drainage of the piping or allow the piping to sag and crack when it is backfilled with dirt. Once covered over these conditions would have not been visible

to anyone, and it could take months before signs of a failure were visible. Having a permit gives a municipal inspector an opportunity to inspect the work before it is covered over and concealed.

the work done. This includes making sure the work meets all applicable building codes and ensuring that inspections are called for and the work is approved by the municipality.

The California Business and Professions Code require licensed contractors to have permits (when required) for all work they perform, but it does not require the contractor to obtain the permit themselves. The property owner or the association they are working for may obtain them. Although an owner or association can obtain permits for most work performed by contractors, there are several good reasons why they should not.

Reputable contractors know they are responsible for obtaining permits, and they will include the costs for permits in their bids. Contractors who want the owner or association to pull the permit, or state that a permit was not necessary, usually do so for one of three reasons. The contractor is not licensed and therefore cannot obtain a permit, they donâ&#x20AC;&#x2122;t want to include the cost of permits in their bids in order to look more competitive, or they know their work would not pass inspection. Any reason not to pull a permit should be a red flag for the party paying for the work, unless the work being performed does not require it.

When a person applies for a permit, he or she fills out and signs a legal document (the permit application) stating that they are either the owner-builder or contractor for the work and assume full responsibility for

It is important to understand that obtaining a permit does not mean the work is automatically approved by the authority having jurisdiction. A contractor might obtain a permit but never call for an inspection. At the job completion, the association is left with work that was never checked or approved by the municipality. The ultimate responsibility of ensuring the work is code-complying falls on the permit holder. Donâ&#x20AC;&#x2122;t assume that responsibility by agreeing to take the permit out for the contractor, and be aware that obtaining a permit is only part of the permit process. For a permit to be complete, the building department must be called for a rough inspection before the work is covered up (with dirt, siding or sheetrock), and then for

Continued on page 31 ECHO Journal | May 2010

News from ECHO

Making Accommodations It is well understood that homeowners associations should enforce the governing documents of the association in a uniform and nondiscriminatory manner so as to avoid a possible defense of discriminatory enforcement, although the association has some good faith discretion concerning when and how to do so. However, in certain cases it is against both California and federal law for the association to enforce the governing documents where necessary to meet the housing needs of the disabled. The Department of Housing and Urban Development reports that in 2008, 44 percent of the complaints filed were based on disability discrimination in contrast to 35 percent based on race. Because of this growing liability, directors must be sensitive to the rights of homeowners with disabilities. California Government Code Sections 12955.3 and 12926 define physical and mental disabilities. The persons so defined are entitled to accommodations in the enforcement of housing policies and practices such as the use restrictions in the CC&Rs and the association rules. The same code defines “discrimina28

May 2010 | ECHO Journal

tion” as including the refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling. Because homeowner associations have an affirmative duty to make accommodations in their policies and practices to provide physically and mentally disabled residents full enjoyment of their property, boards must properly address requests for special treatment. Legal counsel is appropriate to evaluate the request, determine if it is properly documented and supported and to advise concerning possible conditions for the protection of the association and its members.

When Is A Permit Required? The permit process is one of the most important parts of any construction process and the one often misunderstood by both home owners and contractors. Requiring permits and inspections is the only way a municipality can ensure that work to a building will meet minimum levels of health and safety. Work not done to code can compromise the safety of a structure, present significant disclosure issues when

the property is sold, and may affect insurance coverage in the event of an accident or property damage resulting from the work performed. These exposures to liability are the main reasons all work should be done with permits. The requirement for a building permit is in the California Building Code. This requirement applies to work done by anyone, whether a contractor, home owner or association. There are four types of permits required in residential construction; building, electrical, plumbing and mechanical permits. The instances when a permit is not required are listed in the California Building Code, but it is always wise to check with the local authority. If you don’t know what permit or inspections are required for a certain repair or modification that the association may want to do, call or visit your local building department and ask. Reputable contractors know they are responsible for obtaining permits, and they will include the costs for permits in their bids. However obtaining a permit does not mean the work is automatically approved by the authority having jurisdiction. For a permit to be complete, the building department must be called for a rough inspection before the work is covered up (with dirt, siding or sheetrock), and then for a final inspection to look at the finished job. If a person does not call for both the rough and the final inspections, the permit will become invalid. The cost of a permit is based on the valuation of the work being performed, which includes

labor and material. Typically, the cost of a permit runs about 1.5 to 3 percent of the estimated cost of a project. Recreational Use Immunity Do you worry about liability when you see people who are neither owners nor residents using your property for recreation? Are they using the common area walking or hiking paths? Playing on your lawns and playground? Skateboarding on your streets? Here’s some good news from attorneys, for a change, which should put your mind at ease. The California Legislature, in its desire to promote and encourage owners of private property to allow the public to access their land for recreation purposes, has enacted statutes which give you, the property owner, immunity from liability. In 1963, the Legislature enacted Civil Code section 846, which provides that landowners are not required to and/or have no duty “to keep the premises safe for entry or use by others for any recreational purpose.” Neither is it required “to give any warning of hazardous conditions, uses of structures, or activities” to those entering for recreation purposes. Your association board can sleep easier knowing that it need not attempt to prevent non-owners or non-residents from using common area property for recreational purposes, in order to protect the association from liability. As set forth above, an association is shielded from liability, and from the loss of its property rights, when allowing the public access to its common area property for recreational purposes.

2010 Legislation at a Glimpse As of April 26, 2010 Bill No.

Author

Subject

Status

Position

Summary

AB 1726

Swanson

Voting Quorums Amended 4/12. Hearing in Assembly Housing 5/5

Support if Amended

In the event that there is not a quorum for a member meeting or an election of directors, would automatically reduce the quorum requirement for the next meeting to 33 percent of the members entitled to vote. Exempts associations whose documents establish a lower quorum requirement.

AB 1793

Saldana

Synthetic Grass Amended 4/20. In Senate

Oppose

Voids provisions in governing documents that prohibit the use of artificial turf or any other synthetic surface that resembles grass. Allows associations to adopt rules that establish design and quality standards.

AB 1927

Knight

Rental Rights

Amended Oppose 4/20. Hearing in Assembly Judiciary 4/27

For governing documents amended, adopted or recorded on or after January 1, 2011, requires that 2/3 of all owners vote to approve rental or lease restrictions. Requires owners to disclose rental restrictions prior to transfer of title.

AB 1975

Fong

Submetering

Passed Assm. Support if Parks. Amended Assm. Third Reading

Requires that every water purveyor that provides water service to a multi-unit residential structure for which a construction permit has been issued on or after January 1, 2012 provide submeters for each unit.

AB 2016

Torres

Deed Requests

Passed Assm. Support Banking. Hearing Assm. Judiciary 4/27

Clarifies that a request by an association for notification of a trusteeâ&#x20AC;&#x2122;s deed of sale does not constitute a request for a document that either effects or evidences a transfer or encumbrance, or that releases or terminates any interest, right or encumbrance, of an interest in real property.

AB 2120

Silva

Mobilehome Law Disclosure

Amended 3/22. Hearing in Assembly Housing 4/28

Oppose

Deletes requirement that the management shall provide a copy of the Mobilehome Residency Law to all homeowners by February 1 of each year if a significant change was made in that law during the prior year.

AB 2502

Brownley

Delinquency Collection

Amended 4/5. Hearing in Assembly Housing 4/28

Oppose

Regulates third parties performing collection services for HOAs. Raises threshold for use of foreclosure proceedings from $1800 or 12 months delinquent to $3600 or 18 months delinquent.

SB 995

Strickland

Conversion Plans

In Senate Local Government. Hearing cancelled.

Watch

Provides that a stock cooperative or community apartment project for senior citizens established before the Davis-Stirling Act, that is converting to a condominium, shall not be required to file a condominium plan to the Department of Real Estate.

SB 1427

Price

Default Notices

Amended 4/19. Hearing in Senate Judiciary 5/4

Watch

Requires that a notice of default include specified information for any person or entity designated to be responsible for the maintenance of the property. Provides that fines for failure to maintain the property would be treated as a lien against the property in a foreclosure sale.

ECHO Journal | May 2010

Directory UPDATES Updates for listings in the 2008 ECHO Directory of Businesses and Professionals.

New Member Listings AZEK Building Products 10 Seacrest Ct. Sacramento, CA 95835 Contact: Craig Young Tel: 916-715-9222 Fax: 570-558-4166 www.azek.com Email: craig.young@azek.com AZEK Building Products is a leading manufacturer of wood replacement, low maintenance building products. Our exterior trim, moulding, decking and railing products are all category leaders in their segments. Baskin & Grant, LLP 730 Mission St. Santa Cruz, CA 95060 Contact: David Thompson, Esq. Tel: 831-425-8999 Fax: 831-425-8853 www.baskingrant.com Email: dthompson@baskingrant.com Established in 1979, Baskin & Grant LLP is a full service law firm with extensive expertise in a broad variety of practice areas. Baskin & Grant matched the capabilities and success rate of big city firms and enjoys an AV rating by Martindale-Hubble, which only 5% of firms achieve.

Continued on page 34 30

May 2010 | ECHO Journal

When Is a Permit Required? Continued from page 27

a final inspection to look at the finished job. If a person does not call for both the rough and the final inspections, the permit will become invalid. This means that the work was never approved by the municipality. If the job extends over several months, and an inspection is not called for within 180 days of obtaining the permit or since the last inspection, the permit will be considered void, and a new permit will have to be obtained and paid for. The cost of a permit is based on the valuation of the work being performed, which includes labor and material. Municipalities are allowed through adopted ordinances to charge fees for services they provide. The fees charged for permits must cover the administration costs of reviewing and approving the plans, and the costs of providing the required site inspections. Over the years, cities have developed data for costs to provide permit and plan checking services for various sizes and types of projects. Typically, the cost of a permit runs about 1.5 percent to 3 percent of the estimated cost of a project. On smaller jobs, the cost for a permit will be closer to 3 percent of the job, and on larger jobs, the permit cost will be much lower. On very small jobs or jobs with specific replacements such as the replacement of a water heater or furnace or a section of a sewer line, the permit fee will be a set price. If you donâ&#x20AC;&#x2122;t know what permit or inspections are required for a certain repair or modification that the association may want to do, call or visit your local building department and ask. Be sure to inquire if there are any local ordinances or design requirements that may affect your job. Not only will they try to answer your question, they can usually supply you with printed information about specific requirements for various aspects of work and what the potential permit costs will be.

John R Schneider is a licensed general building contractor and a 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.

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ECHO Journal | May 2010

By Kim MacFarlane

Got Lead? 32

May 2010 | ECHO Journal

ead is a toxic metal that was used for many years in products found in and around our homes. Lead also can be emitted into the air from motor vehicles and industrial sources, and lead can enter drinking water from plumbing materials. Lead may cause a range of health effects, from behavioral problems and learning disabilities, to seizures and death. Children six years old and under are most at risk. The most common sources of lead poisoning are: • Deteriorating lead-based paint • Lead contaminated dust • Lead contaminated residential soil Paint, varnish or any other coating that contains more than 0.5 percent lead by weight or more than 1.0 milligram of lead per square centimeter is called lead-based paint. When lead-based paint is in a condition that makes it an imminent health threat, it is a lead-based paint hazard. Federal law defines a lead-based hazard as any of the following: lead-contaminated household dust; lead-contaminated bare soil; deteriorating lead-based paint; lead-based paint on friction surfaces such as windows; lead-based paint on impact surfaces such as doors; and lead-based paint on chewable surfaces such as the interior edge of a window sill. What does this mean to you, the homeowner association board or manager? If you aren’t sure whether or not you have a potential lead-based paint issue, the first step is to have the paint material tested. There are the box-store home “swab” tests that are available (the EPA is evaluating the effectiveness of lead test kits by asking vendors to submit test kits for review to ensure fewer false negatives), or you can pull a sample and take it to a lab. If a more detailed analysis is required, an environmental hygienist can help you determine the extent and levels of the lead-based paint in question.

In most situations where there are residents present, abatement should be handled by a professional abatement company. If you are embarking on any sort of renovation or are doing any repairs, you need to consider a few things. First of all, ask yourself what type of materials will be impacted by this work (i.e., casings, walls, windows, frames, sashes, sills, doors, thresholds and any other painted surfaces such as floors or concrete. Second, is the actual removal of material in question going to create a hazardous situation (refer to definition above)? In some situations you can simply have

the material in question encapsulated by painting it with primer or non-lead paint. Finally, how do you know when to hire a professional to have the material abated? In most situations where there are residents present, abatement should be handled by a professional abatement company. A lead-abatement contractor certified by the California Department of Health Services (DHS) will notify OSHA, erect the proper containments, use the proper removal equipment under the required conditions and properly dispose of the lead-based paint material. This insures the safety of building residents as well as a safe working environment for the workers performing the renovation or repairs; it also ensures that the public’s welfare is being addressed.

Non-compliance of lead-based paint removal requirements is subject to fines for the association and/or contractor. Abatement methods can involve wet scrape, chemical, heat and mechanical removal. After the abatement, use of an independent laboratory to sample the containment area and insure that the existing air and surfaces are at or below the safe level guidelines is highly desirable. After removal, your DHS contractor will have the lead-based paint material profiled so that it can be dispatched to the proper disposal facility. All hazardous material is tracked with a governmentissued manifest that notates the name and address of the generator (i.e., the association), the abatement contractor, the amount of material removed and to which disposal facility it was taken. Non-compliance of lead-based paint removal requirements is subject to fines for the association and/or contractor. OSHA determines those fines based on the severity, intent and negligence of the work scope. Since April 10, 2010, lead removal is controlled under federal law. This means is that the “Lead Renovation, Repair and Painting Program” rule, which prohibits work practices that create lead hazards, will now include implementing lead-safe work practices along with certification and training for paid professionals working in pre-1978 housing, child care facilities and schools. The EPA has been conducting an extensive education and outreach campaign to promote awareness of these new requirements. Since the April effective date, lead essentially must be treated like asbestos in every case where those standards fit. For more information, you can go to: www.epa.gov or you may call the EPA at: 1800-424-LEAD.

ECHO Journal | May 2010

Business Professional Directory Updates Continued from page 30

Condo CPA, Inc. P.O. Box 3136 Santa Cruz, CA 95063-3136 Contact: Mary Champagne Tel: 831-440-4697 Fax: 630-832-3950 Toll free: 877-900-1040 www.condocpa.com Email: mary@condocpa.com Our firm works with over 400 community associations, providing audits, reviews, compilations, tax return preparation, tax and financial planning, and more. We work exclusively with community associations including condominiums, cooperatives, Townhomes, homeowner associations, and real estate management firms. FloraTerra Landscape Management 1670 Old Orchard St. San Jose, CA 95125 Contact: Gene Ebertowski Tel: 408-275-1200 Fax: 408-275-1201 www.floraterra.com Email: gebertowski@floraterra.com FloraTerra provides full-service landscape maintenance for residential communities, businesses, and retail facilities throughout the San Francisco Bay Area. Pro-active, consistent and quality landscape services are our focus. Irrometer Company P.O. Box 2424 Riverside, CA 92516 Contact: Brian Lennon Tel: 951-689-1701 Fax: 951-689-3706 www.irrometer.com Email: brianl@irrometer.com Since 1951 Irrometer has been a leader in soil moisture measurement technologies. For landscape applications the watermark family of soil moisture management products is designed to work in conjunction with residential and commercial irrigation controllers to optimize irrigation scheduling based on plant demand.

May 2010 | ECHO Journal

Lilac Management Group 830 Stewart Dr., Suite 226 Sunnyvale, CA 94085 Contact: Ana Lilia Ramirez Tel: 888-875-7227 Fax: 888-875-7227 Email: info@lilacmg.com Marin Color Service 770 Second Street San Rafael, CA 94901 Contact: James Greenhill Tel: 415-453-4065 Fax: 415-453-7860 www.marincolor.com/sb.cn Email:jamesrgreenhill@yahoo.com Marin Color Service is a retailer/wholesaler of paint, industrial coatings and wallpapers. We service the contractor and architect and have the largest green product inventory in the North Bay. MonierLifetile 9508 Harlan Rd. French Camp, CA 95321 Contact: Jason Daily Tel: 209-559-5243 www.monierlifetile.com Email: jdaily@monierlifetile.com Manufacturer of lightweight energy efficient roof systems. Products are aesthetically pleasing, durable and can reduce energy costs while increasing home values. Pro Solutions P.O. Box 311 Pittsburg, CA 94565 Contact: Michael Lemonds Tel: 925-432-8884 Fax: 925-753-1509 www.hoaprosolutions.com Email: michaell@hoaprosolutions.com

The How-to Guide for Homeowners Associations

ric ReP duce ed

Hailed as the most complete and useful reference available for homeowners associations, members, officers and directors. If you want to learn how to manage, operate and participate effectively in your association, you will want to read this book.

Order the book today from ECHO Call 408-297-3246, fax 408-297-3517 or email: info@echo-ca.org

Continued on page 39 ECHO Journal | May 2010

2008 ECHO Business & Professional Directory $20.00 Non-Member Price: $25.00

Condominium Bluebook 2010 Edition $18.00 Non-Member Price: $25.00

Homeowners Association and You $13.00 Non-Member Price: $20.00

Community Association Statute Book—2010 Ed. $15.00 Non-Member Price: $25.00

This directory lists all business and professional members of ECHO as of December 2007. Current addresses, telephone and fax numbers, email addresses, and a short description are included. This directory is an invaluable tool for locating service providers that work with homeowner associations.

This well-known compact guide for operation of common interest develop ments 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.

A practical problem solving guide to all aspects of community association living. Written by two long-time association residents, it provides an insightful overview of community living from the viewpoint of experienced owners in readable language. Recently revised and expanded.

Contains the 2010 version of the Davis-Stirling Common Interest Development Act, the Civil Code sections that apply to common interest developments and selected provisions from the Civil, Corporations, Govern ment and Vehicle Codes important to associations.

Robert’s Rules of Order $7.50 Non-Member Price: $12.50

The Board’s Dilemma $10.00 Non-Member Price: $15.00

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.

In this essay, attorney Tyler Berding confronts the growing financial problems for community associations. Mr. Berding addresses board members who are struggling to balance their duty to protect both individual owners and the corporation, and gives answers to associations trying to avoid a funding crisis.

California Building Guidelines for Residential Construction $52.50 Non-Member Price: $60.00

e Pricuced Red Homeowners Associations— How-to Guide for Leadership $25.00 Non-Member Price: $25.00 This well-known guide and reference is written for officers and directors of homeowner associations who want to learn how to manage and operate the affairs of their associations effectively.

This easy-to-read manual is an excellent tool to understand a new home. It contains chapters covering more than 300 conditions that have been sources of disputes between homeowners and builders, offers homeowner maintenance tips, and defines the standards to which a residence should be built.

ric ReP duce ed

Questions & Answers About Community Associations $18.00 Non-Member Price: $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.

Reserve Fund Essentials $18.00 Non-Member Price: $25.00 This book is an easy to read, musthave 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 $15.00 Non-Member Price: $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.

2009 ECHO Annual Seminar Program Book $15.00 Non-Member Price: $20.00 This 300+ page reference book contains the presentation outlines, text and handouts from the sessions at the 2009 ECHO Annual Seminar held on June 13, 2009. It also contains vital information for association directors, such as assessment collection policies, internal dispute policies, and much more.

Dispute Resolution in Homeowner Associations $20.00 Non-Member Price: $25.00 This publication has been completely revised to reflect new requirements resulting from passage of SB 137.

Publications to answer your questions about common interest developments Now Order Online at echo-ca.org

Bookstore Order Form Board Memberâ&#x20AC;&#x2122;s Guide for Contractor Interviews $20.00 Non-Member Price: $25.00

Executive Council of Homeowners 1602 The Alameda, Suite 101, San Jose, CA 95126 Phone: 408-297-3246 Fax: 408-297-3517 TITLE

QUANTITY

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.

SUBTOTAL CALIFORNIA SALES TAX (Add 9.25%) TOTAL AMOUNT

Yes! Place my order for the items above. Board Memberâ&#x20AC;&#x2122;s Guide for Management Interviews $20.00 Non-Member Price: $25.00 This guide for use by boards for conducting complete and effective interviews with prospective managers takes the guesswork out of the interview process. Over 80 questions covering every management duty and includes answer sheets matched to the questions.

q Check q Visa q Mastercard Credit Card Number Exp. Date

Signature

Name (please print) Association (or company) Address City Daytime Telephone

State

Zip

AMOUNT

ECHO Events Calendar

Dates for your calendar Thursday, May 6 North Bay Resource Panel 11:45 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael

Thursday, May 20 San Francisco Luncheon 11:45 a.m. St. Francis Yacht Club San Francisco

Friday and Saturday June 18 & 19, 2010 ECHO Annual Seminar Santa Clara Convention Center Santa Clara

Wednesday, July 21 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park

Monday, May 10 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant Oakland

Wednesday, June 2 Maintenance Resource Panel 12:00 Noon ECHO Office, 1602 The Alameda, San Jose

Thursday, July 1 North Bay Resource Panel 11:45 a.m. Contempo Marin Clubhouse 400 Yosemite Rd., San Rafael

Thursday, September 16 San Francisco Luncheon 11:45 a.m. St. Francis Yacht Club San Francisco

Tuesday, May 11 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz

Wednesday, June 9 South Bay Resource Panel 12:00 Noon Il Fornaio 302 S. Market St., San Jose

Friday, July 9 East Bay Resource Panel 9:30 a.m. Angius & Terry 1900 N. California Blvd., Suite 950, Walnut Creek

Saturday, September 25 Central Coast Fall Seminar 8:00 a.m. Hilton Santa Cruz, Scotts Valley

Friday, May 14 East Bay Resource Panel 9:30 a.m. Angius & Terry 1990 N. California Blvd., Suite 950, Walnut Creek Wednesday, May 19 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr., Rohnert Park

Friday, June 11 East Bay Resource Panel 9:30 a.m. Angius & Terry 1990 N. California Blvd., Suite 950, Walnut Creek Wednesday, June 16 Wine Country Resource Panel 11:45 a.m. Eugene Burger Mgmt. Co. 6600 Hunter Dr, Rohnert Park

Monday, July 12 Accountants Resource Panel 6:00 p.m. Francesco’s Restaurant Oakland Tuesday, July 13 Central Coast Resource Panel 12:00 Noon Pasatiempo Inn, Santa Cruz Thursday, July 15 San Francisco Luncheon 11:45 a.m. St. Francis Yacht Club San Francisco

Regularly Scheduled ECHO Resource Panel Meetings Resource Panel Maintenance North Bay East Bay Accountants Central Coast South Bay Wine Country Legal

May 2010 | ECHO Journal

Meeting First Wednesday, Even Months First Thursday, Odd Months Second Friday, Monthly Second Monday, Odd Months Second Tuesday, Odd Months Second Wednesday, Even Months Third Wednesday, Monthly Quarterly

Location ECHO Office, San Jose Contempo Marin Clubhouse, San Rafael Angius & Terry, Walnut Creek Francesco’s Restaurant, Oakland Pasatiempo Inn, Santa Cruz Il Fornaio, San Jose Eugene Burger Management Co., Rohnert Park Varies

Business-Professional Updates Continued from page 35

United Trustee Services 117G Town & Country Dr. Danville, CA 94526 Contact: Lisa E. Chapman Tel: 925-855-8554 Fax: 925-855-8559 www.unitedtrusteeservices.com Email: lisa@unitedtrusteeservices.com UTS have a full range of HOA collection services from pre-lien to non-judicial foreclosure, small claims for personal obligation, debt consolidation to forensic loan audits. UTS look at creative solutions to help the association managers recapture their HOAsâ&#x20AC;&#x2122; delinquent assessments.

Changes to Member Listings Construction Services, Inc. P.O. Box 54190 San Jose, SCA 95154 Contact: Jim Lyons Tel: 408-210-6344 Fax: 408-369-96221 www.csibayarea.com Email: jim@csibayarea.com

Be an HOA Survivor Register today for California largestâ&#x20AC;&#x2122;s HOA educational event See page 42

ECHO Journal | May 2010

ECHO Honor Roll

About

ECHO Honors Volunteers Tyler Berding 2009 Volunteer of the Year ECHO Resource Panels Accountant Panel Richard Schnieder, CPA 707-576-7070 Central Coast Panel John Allanson 831-685-0101 East Bay Panel Scott Burke, 650-543-5619 Beth Grimm, 925-746-7177 Legal Panel Mark Wleklinski, Esq. 925-280-1191 Maintenance Panel Brian Seifert, 408-536-0420 North Bay Panel Diane Kay, CCAM, 415-846-7579 Stephany Charles, CCAM 415-458-3537 San Francisco Panel Jeff Saarman, 415-749-2700 South Bay Panel Geri Kennedy, CCAM 650-348-2691 ext. 1006 Kimberly Payne, 408-200-8470 Wine Country Panel Maria Birch, 707-584-5123

Legislative Committee Paul Atkins Jeffrey Barnett, Esq. Sandra Bonato, Esq. Jerry Bowles Joelyn Carr-Fingerle, CPA John Garvic, Esq., Chair Geri Kennedy, CCAM Wanden Treanor, Esq.

May 2010 | ECHO Journal

SF Luncheon Speakers John Allanson Jeffrey Barnett, Esq. Tyler Berding, Esq. Ronald Block, PhD. Doug Christison, PCAM, CCAM Karen Conlon, CCAM Rolf Crocker, CCAM Ross Feinberg, Esq. David Feingold, Esq. Tom Fier, Esq. Kevin Frederick, Esq. John Garvic, Esq. Beverly Gordon, CCAM Sandra Gottlieb, Esq. Beth Grimm, Esq. Brian Hebert, Esq. Roy Helsing Stephen Johnson, CFP Julia Lave Johnston Garth Leone Nico March Kerry Mazzoni Larry Pothast Larry Russell, Esq. Steve Saarman Nathaniel Sterling, Esq. Debra Warren, PCAM, CCAM Steven Weil, Esq. Mark Wleklinski, Esq. Glenn Youngling, Esq.

Seminar Speakers January 30, 2010 Marin Seminar Sandra Bonato, Esq. David Feingold, Esq. Wanden Treanor, Esq. Glenn Youngling, Esq. February 2010 Central Coast Seminar Speakers Sandra Bonato, Esq. Beth Grimm, Esq.

Stephanie Hayes, Esq. Donald Odell, Esq. John Schneider March 2010 Wine Country Seminar Speakers Carra Clampett, CCAM Bill Gillis, Esq. Darryl Orr Zeke Ortiz Barbara Zimmerman, Esq.

Recent ECHO Journal Contributing Authors December 2009 Sandra Bonato, Esq. William Erlanger, CPA Lucinda Hoe Marilyn Lincoln Steven Weil, Esq. January 2010 Tyler Berding, Esq. Carl Brown Beth Grimm, Esq. Lise Ström, Esq. Richard Tippett February 2010 Beth A. Grimm, Esq. Ann Rankin, Esq. Brian Seifert March 2010 Jeffrey A. Barnett, Esq. Ed Edrosa Sharon Glenn Pratt, Esq. Lise K. Ström, Esq. Richard Tippet April 2010 Tyler P. Berding, Esq. Sandra M. Bonato, Esq. Burt Dean Beth A. Grimm, Esq. Greg Pater

ECHO What is ECHO? ECHO (Executive Council of Homeowners) is a California non-profit corporation dedicated to assisting community associations. ECHO is an owners’ organization. Founded in San Jose in 1972 with a nucleus of five owner associations, ECHO membership is now 1,525 association members representing over 150,000 homes and 325 business and professional members.

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. If your company wants to reach decision makers at over 1,525 homeowner associations, you can become an associate member and join 325 other firms serving this important membership.

Benefits of ECHO Membership • Subscription to monthly magazine for every board member • Yearly copy of the Association Statute Book for every board member • Frequent educational seminars • Special prices for CID publications • Legislative advocacy in Sacramento

ECHO Membership Dues HOA Size 2 to 25 units 26 to 50 units 51 to 100 units 101 to 150 units 151 to 200 units 201 or more units Business/Professional

Rate $120 $165 $240 $315 $390 $495 $425

ECHO Journal Subscription Rates Members Non-members/Homeowners Businesses & Professionals

$50 $75 $125

How Do You Join ECHO? Over 1,800 members benefit each year from their membership in ECHO. Find out what they’ve known for years by joining ECHO today. To apply for membership, call ECHO at 408-2973246 or visit the ECHO web site (echo-ca.org) to obtain an application form and for more information.

ECHO Marketplace

Adver tiser Index

The place to find business and professionals for your association

months managementt fee e for for FREE! FREE!** 2 mon ths managemen fee W e’ll bea ompetitors pr We’ll beatt an anyy ccompetitors price ice b byy 25%. M ore SService: ervice: calls & emails rreturned eturned same da y. More day. *Prorated rorated W ork ccompleted ompleted b Work byy deadline deadline.. *P Neighborhood Association Management, Inc. (800) 811-0841 x22 Dee@Neighborhoodam.com www.Neighborhoodam.com www.Neighborhoodam.com

Access Association Services . . . . . .17 Affirmative Management Services . .18 American Asphalt . . . . . . . . . . . . . .30 American Management Services . . .12 Angius & Terry . . . . . . . . . . . . . . . . .3 A.S.A.P. Collection Services . . . . . . . .9 Association Reserves . . . . . . . . . . .22 Bayridge Group . . . . . . . . . . . . . . . .14 Berding | Weil . . . . . . . . . . . . . . . . .44 CACM . . . . . . . . . . . . . . . . . . . . . .14 Collins Management . . . . . . . . . . . .17 CAB/Mutual of Omaha . . . . . . . . . .16 Common Interest Mgmnt Services . .22 Community Management Services . .30 Compass Management . . . . . . . . . .13 Condominium Financial Management 41 Cool Pool Service . . . . . . . . . . . . . .18 Cornerstone Community Mgmnt . . . . .8 Draeger . . . . . . . . . . . . . . . . . . . . .13 Ekim Painting . . . . . . . . . . . . . . . . .35 First Bank Association Bank Srvcs . .34 Flores Painting . . . . . . . . . . . . . . . .31 Focus Business Bank . . . . . . . . . . .12 Gachina Landscaping . . . . . . . . . . .17 M&C Association Services . . . . . . . .31 M. L. Nielsen Construction . . . . . . .34 Massingham and Associates . . . . . .25 Pelican Management Group . . . . . . .18 PML Management Corp. . . . . . . . . .16 Pollard Unlimited . . . . . . . . . . . . . .24 Professional Association Service . . .14 R. E. Broocker Co. . . . . . . . . . . . . .24 Rebello’s Towing Service . . . . . . . . .39 REMI . . . . . . . . . . . . . . . . . . . . . . .19 Saarman Construction . . . . . . . . . . .9 Scuba Pool Repair . . . . . . . . . . . . . .8 Statcomm . . . . . . . . . . . . . . . . . . .24 Steve Tingley Painting . . . . . . . . . . . .2 Steve’s Painting Services . . . . . . . .19

ECHO Journal | May 2010

Saturday, June 19, 2010 8:00 a.m.–4:30 p.m. Santa Clara Convention Center Santa Clara, California 125 Booths in Trade Show, Hundreds of Prizes, New CACM Course, Buffet Luncheon, Ice Cream Social and more! Join the Friday Night Gala! Annual Seminar Reception Friday, June 18, 5:00–7:30 p.m. Food, Music, Socializing, Prizes Cost: $40—See Registration Form

Special Hotel Rates Don’t miss out on the special room rate of $89 single or double at the Hyatt Regency adjacent to the Santa Clara Convention Center. Call the Hyatt Regency at 800-233-1234 and mention the Executive Council of Homeowners or go online to: http://santaclara.hyatt.com/ groupbooking/clara2010exch. The special rate is available until June 1.

CACM Course: Reserves—What, Why and How Friday, June 18, 2010 The legislature has put a microscope on reserve studies during the past couple of years, and we expect more attention to be placed on the process. You may not need to be a reserve specialist but you do need to know when to call in a specialist, what information to gather, and what to expect. How do you use a

reserve study as a planning tool? How does it drive the association’s budget? What if the association does not have reserves needed for a project? These questions and much more are discussed. (3 CACM CE hours) Instructor: Ken Kosloff Tuition: $110 Call the ECHO Office to register.

Be an HOA Survivor ECHO Annual Seminar June 19, 2010

Educational Program Session Tracks

Saturday Morning 9:00 to 10:10

Saturday Morning 10:50 to 12:00

Saturday Afternoon 1:30 to 2:40

Saturday Afternoon 3:20 to 4:30

HOA UNIVERSITY Rooms 209–210

Administration Tsuki Morgan, CCAM

Legal Considerations Tom Fier, Esq.

Finances David Levy, CPA

Insurance Dennis Socher

LEGAL Rooms 203–204

Legislative Update John Garvic, Esq. Kerry Mazzoni

New American Community —Managing In The Future Larry Pothast

New FHA Lending Requirements Beth Grimm, Esq. Greg Pater

Conflict Resolution for Directors David Feingold, Esq.

MANAGEMENT & FINANCIAL Mission City Ballroom 1

The Butterfly Effect Julie Adamen

Ethics for Board Members Karen Conlon, CCAM Sandra Gottlieb, Esq.

Strategic Planning for Board Members Debra Warren, PCAM

People, Pets & Smoking Lisa Esposito, CCAM

FACILITIES MANAGEMENT Mission City Ballroom 1

Traps for the Unwary in New Construction and Conversions Tyler Berding, Esq. Jan Kopczynski, Esq.

Maintenance in Tight Times Robert Hall, Esq. Geri Kennedy, CCAM Richard Tippett

What Happens When Boards Violate the Davis-Stirling Act Steven Weil, Esq.

Going Green: Save Water, Save Money Sharon Serpico Hanson Water Agency Representatives

REGISTRATION FORM Yes! Please reserve my space at the 2010 ECHO Annual Seminar. Name ___________________________________________________________________ Association/Organization __________________________________________________ Address _________________________________________________________________ City __________________________________________ State _____ Zip____________ Daytime Phone ___________________________________________________________ Names of Additional Attendees: 1. _________________________________________ 2. ________________________________________ Please reserve tickets for: No. Amount Seminar Only (members) $75 ___________ $___________ Seminar Only (non-members) $90 ___________ $___________ Seminar Buffet Lunch $40 ___________ $___________ Friday Reception $40 ___________ $___________ TOTAL $___________ Visa/MasterCard No. ______________________________________________________ Expiration Date ___________________________________________________________ Cardholder’s Signature ____________________________________________________

Reserve Now Tickets are non-refundable Order will not be processed without full payment Return with payment to: ECHO 1602 The Alameda, Ste. 101 San Jose, CA 95126 Tel: 408-297-3246 Fax: 408-297-3517

Condominium Conversions Did You Get What You Paid For?

Condo conversions are not new condominiums. They are older rental apartments that were converted to condos. So, what’s wrong with that? Nothing, if the financial plan that came with your condo is up to the task of maintaining a building with 20-30 years of deferred maintenance. How do you know? You probably don’t unless someone

has taken a close look at the homeowner association’s budget and compared it to the actual condition of the buildings. The fact is, very few condominium conversions were sold with repair budgets that are adequate to meet the needs of the project. What does this mean to you? If the budget is inadequate, it will mean either increased homeowner assessments or a gradually deterio-

rating condominium project. Or both. In either case, you didn’t get what you paid for. If you’d like to know the truth now about what you bought, call us. If you want to wait and see what happens, ok, but either way, we’ll be here when you need us. Berding | Weil, LLP 3240 Stone Valley Road West Alamo, California 94507 925-838-2090 www.berding-weil.com