Page 1

2014 ECHO Seminars p.7

The Drought. A Perspective from the East Bay Municipal Utility District p.8

Recreational Use Immunity for Common Interest Developments

Recording HOA Board Meetings

p.16

Serving Community Associations

p.22

Effective Board Meetings

p.28

May 2014 echo-ca.org

ECHO Oakland 2nd Annual Seminar & Trade Show p. 14

ECHO 1960 The Alameda STE 195 San Jose, CA 95126 Change Service Requested

PRSRT STD U.S. Postage PAID Modern Litho 210


ECHO OAKLAND 2nd Annual Seminar & Trade Show Saturday, May 17, 2014 • See page 14 for all the details!


CONTENTS

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ECHO OAKLAND Saturday, May 17

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14 28


8

The Drought How seriously should we take this drought? It’s common to think of a drought as a rare or infrequent occurrence. But dry years are more normal than wet years! Perhaps we need to re-envision the landscape, think differently about it. It’s not just about making your landscape more resilient to drought that’s important. Conventional landscaping negatively impacts the urban environment through excessive resource consumption, adverse impacts to water quality, and unintended harm to wildlife.

16

Recreational Use Immunity for Common Interest Developments 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? Taking a short-cut to the beach? Here’s some good news from attorneys, for a change, which should put your mind at ease.

22

Recording HOA Board Meetings All too often recording at meetings becomes an issue in the midst of a greater substantive issue being addressed by the community. As a secondary issue it can simultaneously distract from the primary issue(s) and undermine owner confidence in the integrity of the Board process. Being proactive on the use of recording meetings before there is a problem makes sense.

28

Effective Board Meetings Effective board meetings start with strong leadership from the president. That leadership must provide a clear understanding of the board’s purpose, which is the successful operation of the organization. As the elected representatives of the association, the board is charged with oversight of the community’s finances, infrastructure and condition of common and private properties— no small task in and of itself.

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 2014 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

DEPARTMENTS

6

News from ECHO

7

2014 ECHO Educational Calendar

Secretary Toni Scurti Directors Jerry L. Bowles Stephanie Hayes Robert Rosenberg Brian Seifert Steven Weil

John Garvic David Levy Kurtis Shenefiel Wanden Treanor

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ECHO Oakland — Saturday, May 17th.

31

Fresno Educational Seminar — Saturday, May 31st.

32

Sacramento Educational Seminar — Saturday, June 14th.

34

ECHO Bookstore

37

Advertiser Index

38

ECHO Volunteers

Director of Communications Tyler Coffin

39

NEW at echo-ca.org

40

Legislation at a Glimpse

Legislative Consultant Government Strategies, Inc.

42

ECHO Event Calendar

Executive Director Brian Kidney Director of Marketing & Membership Toni Scurti

Design and Production Design Site ECHO Mission Statement Serving Community Associations

May 2014 | ECHO Journal

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news from ECHO

News From ECHO May 2014 Our Second Annual ECHO Oakland Seminar and Trade Show is just around the corner, May 17. ECHO is all about HOA board member education, and there’s no better place to get informed than our signature event in the East Bay. Join us to hear from over 20 experts in diverse fields speaking on topics important to your community. We also will have over 50 professional vendors available on the exhibit floor ready to answer your questions, and give you an opportunity to win valuable prizes. Back by popular demand is our HOA University, a full day track of sessions designed to get the first time HOA board member up to speed on the fundamentals, and refresh veterans on best practices. Those who participate in all four sessions will receive a certificate and recognition in the ECHO Journal. Given the fiduciary responsibilities of HOA board members, knowing what is demanded of you will make the job easier and your community healthier. Our “Hot Topics” track will address our current and future water issues, smoking, security, parking, solar power, and how to avoid a reconstruction nightmare. And, of course, we will have a full track of four sessions addressing legal issues, capped off with the popular “Ask the Attorneys” session where you get to ask your burning questions. Even if all the answers begin with, “It depends…” you’ll still get a framework to help you and your Association come to grips with nettlesome issues. We’ll give you coffee in the morning to get you started, a full buffet lunch included in your admission fee, and cookies to fend off the afternoon doldrums—but you won’t really need them because our speakers will keep you riveted to your seats. Sign up now to enjoy the early bird rate. Go to www.echo-ca.org/events or fill out the form on page 14 and return it to the ECHO office by fax, email or USPS. I look forward to seeing you in Oakland. Best,

Brian Kidney Executive Director

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2014 ECHO educational calendar

ECHO Seminars Now there’s one near you.

Santa Rosa

If you’ve ever wished that ECHO would hold a seminar closer to your association, chances are that we’ll be nearby during 2014. Don’t miss an opportunity to get the education you need with guidance from some of California’s top HOA attorneys and professionals. Take a look and mark your calendar. We can’t wait to see you there!

Sacramento

Marin Walnut Creek Oakland San Francisco

Register today! Online: www.echo-ca.org; By Phone: 408.297.3246

San Jose Campbell Santa Cruz

May 17

May 31

June 14

ECHO Oakland Seminar & Tradeshow (see page 18)

Fresno Educational Seminar (see page 7)

Sacramento Educational Seminar (see page 33)

Oakland Convention Center, Oakland

Ramada University Hotel, Fresno

Westin Hotel Sacramento

DATE

EVENT

August 22-23 October 4 October 18

ECHO San Jose Monterey Educational Seminar Walnut Creek Educational Seminar

Fresno Monterey

May 2014 | ECHO Journal

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THE

DROUGHT

A Perspective from the East Bay Municipal Utility District By: Scott Sommerfeld

Drought is always a concern in California, especially if your job is to be responsible for maintaining and irrigating a landscape. With California facing water shortfalls in one of the driest years in recorded state history, the Governor declared a statewide emergency in January and asked all Californians to conserve water in every way possible. Almost daily, the media reminds us we’re in a drought with stories of how low the reservoirs are compared to previous years and how residents everywhere are being asked to cut back water use now or face even more severe cutbacks later this year.

May 2014 | ECHO Journal

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O

n February 11, EBMUD asked its customers to cut back their current use voluntarily by ten percent. If changes are needed to further stretch the supply, EBMUD may announce additional cutbacks this spring based on reservoir and precipitation levels in the Mokelumne watershed where the East Bay’s water supply originates. How seriously should we take this drought? It’s common to think of a drought as a rare or infrequent occurrence. Over the last 80 years or so, nearly one in three years (31%) have been wet, but even more have been dry or critically dry (37%). Dry years are more normal than wet years! In the past, EBMUD customers coped with drought by voluntarily cutting back even more than asked. This shows it is possible to irrigate our existing landscapes with less water. Perhaps we need to re-envision the landscape, think differently about it. Why do we eventually go back to pre-drought use when the rains return? What if, instead we incorporated wet year as well as dry year best management practices into our business practices and maintenance contracts? What if we budget and invest in irrigation upgrades for the long term in order to make the landscape more resilient to future droughts? It’s not just about making your landscape more resilient to drought that’s important. Conventional landscaping negatively impacts the urban environment through excessive resource consumption, adverse impacts to water quality, and unintended harm to wildlife. EBMUD is ramping up its educational outreach through workshops, presentations and web-based resources. In addition, we provide rebates for sustainable landscape and irrigation upgrades.

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See sidebar for rebate information. (If you are not an EBMUD customer, contact your water agency for details about their rebates and other assistance).

How to cope with this year’s drought today

1

WATER LESS. Turn your irrigation off and water manually as long as possible into the early summer. If it doesn’t rain, run your lawn program manually once every two weeks after the last rain until you notice the first sign of lawn stress. At the first sign of stress, turn your irrigation system on automatic but only water one day per week. Continuing watering one day a week until again you notice the lawn stressing. Then add a day so you are watering two days a week. Water two days a week until you have to add the third day to avoid stress. You should never have to water your lawn more than three days per week. Contact an EBMUD Water Conservation Representative at 510-287-1900 if you think you need to water more than three days per week.

2

TREAT YOUR SHRUBS DIFFERENTLY. Most landscape managers turn the shrub programs on at the same time as the lawn programs. This is wasteful for two reasons. Shrubs use water more slowly than turf grass and shrubs have a much larger (deeper root zone) water reservoir. Keep the shrub zones off until you absolutely need them. You shouldn’t have to run programs for established shrubs until June unless you have shallow rooted groundcover or perennials in the same irrigation zone as your established shrubs. Water shrub beds manually at least until June. In many cases it may even be possible to water established shrubs manually year round as many need only 3 or 4 deep irrigations per season in our climate.

3

MULCH. Apply three inches of mulch to all shrub beds and supplement every year. This practice not only reduces water use but is great for improving soil and plant health. Over time water will infiltrate deeper into the soil making plants more resilient to drought.

4

CHECK FOR LEAKS. Routinely turn on the irrigation system and check for breaks and leaks, fixing them immediately. This should be part of every landscape maintenance practice and contract.

How to prepare for the next drought tomorrow

1

REPLACE THE LAWN. Who doesn’t love a green lawn? But one of the best ways to use less water in the landscape is to replace high-water using plants with low-water using plants. Turf uses more water and covers more area than all the other plants combined. For most people, converting to sustainable landscape is an upgrade not a compromise, and they quickly learn to love the new look. Once people see well-designed examples of sustainable landscapes, they understand that they don’t have to be dull, dry-looking, and prickly. A small portion of lawn can still be part of a sustainable landscape if used as a play area. With good design, sustainable landscapes use considerably less water, fertilizer, pesticides, and fossil fuels and require less time and money to maintain. In addition they provide a healthier outdoor space for you and your neighbors. See sidebar for lawn conversion rebates.

2

CALCULATE YOUR WATER BUDGET. One thing you can do to start thinking differently is to train yourself to be more aware of how much water the landscape requires and how much you actually apply. Most existing irrigation systems are inefficient. Adjusting your irrigation system to stick to a water budget is the single most important change you can make in your business practice to water efficiently, minimize waste and save money. A water budget is based on your irrigated landscape area, the percentage of turf and shrubs and your zip code. All you have to do is read your water meter once a week, input the meter readings into a spreadsheet and compare it to the water budget. If you’re over budget, adjust the irrigation timer down until your consumption matches the budget or is less. If you have a mixed meter that supplies both indoor and outdoor water, it is helpful to install


a private irrigation sub-meter to measure only the irrigation water applied to the landscape. See sidebar for irrigation sub-meter rebates. Two things have to happen to make a water budget work and prevent unnecessary waste. First, the irrigation sprinklers and emitters must apply water evenly within each irrigation zone (station). It is a common practice to increase the runtime to compensate for poor uniformity. However, this wastes water. It’s more efficient to upgrade to sprinklers that apply water more evenly. If less than 20 percent of a zone is stressed (that is most of the zone looks good and only small random areas are stressed), the problem is related to the sprinklers and emitters and not the length of the watering cycle (irrigation timer settings). Secondly, the water applied through the irrigation system must be absorbed by the soil where it can be used beneficially by the plants. To do this, water has to be applied slowly enough to allow it to soak in. Most sprinklers and even some drip emitters apply water faster than the soil can absorb. The result is wasteful run-off. One way to reduce wasteful run-off is to break the runtime into shorter segments with a rest period in between. For example, if you are currently watering a zone for 15 minutes at 4 a.m., you could get more water into the soil and be more efficient if you reset your irrigation timer. Instead set to water 5 minutes at 4 a.m., 5 minutes at 5 a.m., and 5 minutes at 6 a.m. for a total of 15 minutes for that day. Some conventional timers have a special feature called cycle and soak that make this easy and most new smart self-adjusting timers do this automatically. It is also important to irrigate deeply but less frequently, however, not so much that you water below the root zone beyond the reach of the plants. Smart controllers make it easier to water the right amount when the plants need it. Contact your EBMUD Water Conservation Representative to learn how often you should irrigate. See sidebar (page 12) for smart controller rebates. When used correctly, the irrigation technology available today allows us to water our landscapes with high efficiency. The weak link is learning to irrigate to a water budget rather than guessing what is the right amount of water to apply. May 2014 | ECHO Journal

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3

Adjust your sprinklers. Another useful water saving practice is to adjust sprinkler arcs and radii to only water the intended area. The most obvious adjustment is to avoid irrigating pavement but it is equally inefficient to water an adjacent planting area that has its own zone. Make adjustments to avoid the unintended practice of two or more zones watering the same area or any paved or unintended area.

4

At optimal water pressure, sprinkler drops are large and less affected by wind. High water pressure causes tiny sprinkler drops that look like fog or mist. When this happens, up to 20 percent of the water applied is likely to blow away and evaporate. See sidebar for pressure regulator rebates.

5

Choose better water management professionals. One reason effective water management isn’t practiced more often is the low bid practice of choosing professionals. Water management is a skill that has a value and maintenance contracts should include specific water management tasks. The cost of water is increasing faster than inflation and property managers serve their clients well by looking into landscape upgrades that will make their landscapes more resilient to future droughts. Urban water agencies are starting to envision what more resilient landscapes might look like. We’re starting to see examples of these new landscapes popping up in neighborhoods and homeowners associations throughout California and the Bay Area. The day will come when a contractor will be hired on the basis of how much water they save rather than how low they bid. If you have any questions about converting to sustainable landscape or EBMUD’s lawn conversion and irrigation upgrade program, please contact Scott Sommerfeld, EBMUD Water Conservation Representative at ssommerf@ebmud.com.

EBMUD’s Lawn Conversion & Irrigation Upgrades Rebates Up to$2,500 Residential and $20,000 Commercial

• Lawn Conversion $0.50/sq.ft. • Convert overhead to drip $0.25/sq.ft. • Smart Irrigation Controllers $75 to $300 • High-Efficiency Nozzles $2 or $5 per nozzle or body • Pressure Regulators $75 to $125 • Irrigation sub-meter $75 to $125 Rebates up to $2,500 for single family homes and up to $20,000 for HOA’s and commercial landscapes are offered.

EBMUD offers rebates:

4 to convert lawn to sustainable landscaping. 4 for smart controllers and private irrigation sub-meters that make it easier to stay on budget.

4 to retrofit conventional spray nozzles to new high efficiency rotating nozzles or better yet to convert lessefficient overhead irrigation to more-efficient drip irrigation.

4 for smart controllers that make it easier to water the right amount when the plant need it.

4 for pressure regulators that can be adjusted to optimal sprinkler pressure and save water.

Building Repair Documents, Decks, Stairs, Settlement, Construction Defects, Expert Witnesses, Forensic Engineers, Moisture Intrusion, Investigations, Drainage, Seismic Retrofit Engineers, Soft Story Specialists.

Serving Northern & Central California Common Interests • Association Managers • Construction Managers HOA Boards • Restoration Contractors • Legal Council www.Qengineers.com • Direct: 408-583-0323 ext.813 A SUBSIDIARY OF QUILICI ENGINEERS, INC.

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May 2014 | ECHO Journal

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ECHO OAKLAND 2nd Annual Seminar & Trade Show Saturday, May 17, 2014

Is your board ethical? How do you handle smoking complaints? Are you adequately insured? What do great minutes look like? ECHO Oakland offers answers. We’ve invited 10 attorneys and other HOA experts to answer these questions and many more – including some of your own! The 12 sessions at our second annual event in Oakland address the fundamental educational needs of California HOA members, and offer clear and simple tools to guide you through tough situations, or just to keep you on the right track. Visit the ECHO website for complete event details: www.echo-ca.org/events

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YOUR REGISTRATION INCUDES: n • Buffet lunch • Access to all sessions • All educational materials • HOA U Certification for participants • Chance to win hundreds of prizes


Event Information

sessions

Location:

HOA University

Oakland Convention Center 550 10th St., Oakland, CA 94607

Finance • Management Legal • Insurance

Time:

HOT TOPICS

8:00 am to 4:30 pm

Smoking, Security, & Parking • Energy Efficiency Drought & Water Conservation

FOOD:

LEGAL

Coffee and tea are served in the morning, and a buffet lunch is included in the price of admission.

Managing the Manager & Managing the Lawyer Case Law Update • Ask the Lawyers More session announcements soon! Check the ECHO website.

PARKING: The Convention Center charges $25 for all-day parking.

LODGING: ECHO Oakland is connected to the Oakland Marriott. Reserve a single or double: book online through our event page, or call the Marriott at 800.991.7249 and mention ECHO.

REGISTRATION: Members: $99 $89, Nonmembers: $129 $119 Prices go up on May 2nd. Register online, or return the form on this page.

Yes, reserve ______spaces for the ECHO Oakland 2nd Annual Seminar & Trade Show.

sPEAKERS David Levy, CPA Levy Erlanger & Co.

Toni Rodriguez G.B. Group

Ian Brown, CCAM M&C Association Management

Scott Sommerfield East Bay Municipal Utility District (EBMUD)

Mike Hughes, Esq. Hughes Gill Cochrane, PC

Sandra Gottlieb, Esq. Swedelson Gottlieb

Burt Dean Rebello’s Towing

Steve Weil, Esq. Berding | Weil

Dennis Socher Socher Insurance

Amy Tinetti, Esq. Hughes Gill Cochrane, PC

Wanden Treanor, Esq.

Bob Burton Common Interest Management Services

Amount enclosed: $__________ (attach additional names)

Dan Nelson Common Interest Management Services

Name:

Ricky Chu, Rayco

John Standard, Esq. Angius & Terry

Email Address:

Paul Windust, Esq. Berding | Weil

Jordan O’Brian, Esq. Angius & Terry

Chris Sigler C.L. Sigler & Associates, Inc.

Beth Grimm, Esq.

HOA or Firm: Address: City: State:

Ann Rankin, Esq.

Zip:

Phone:

SPONSORS

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

May 2014 | ECHO Journal

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RECREATIONAL USE

IMMUNITY

FOR COMMON INTEREST DEVELOPMENTS By Pat Wendleton, Esq., and Sharon Glenn Pratt, Esq.

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D

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.

Immunity from liability for Recreational Use of Association Property 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 8461, 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. Sure, it is true that “a landowner owes a duty of reasonable care to persons coming upon his land . . . .” 2 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.” 3 18 echo-ca.org

Section 846 specifically provides that giving permission or allowing persons to use one’s property for 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 which 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.” 4 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. 5 With the possible exception of property which 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. 6 Yes, this immunity does apply to your swimming pool! However, it does not override the state and local ordinances requiring fences around pools. 1

Civil Code Section 846 provides:

An owner of any estate or any other interest in real property, whether possessory or nonpossessory, 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, snow- mobiling, 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 nonpossessory, 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 consideration, 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. All further statutory references are to the Civil Code unless otherwise specified.

There are only three instances in which the immunity provided by Section 846 does not shield from liability. The situations are:

1

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. 7

2

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. 8


3

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 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 . . . .” 9 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. 2

Civil Code section 1714.

3

Johnson v. Unocal (1993) 21 Cal. app.4th 310, 315. 4

Ornelas v. Randolph (1993) 4 Cal.4th 1095.

5

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.

6

Ornelas v. Randolph (1993) 4 Cal.4th 1095. May 2014 | ECHO Journal

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An Easement Does Not Result from the Use for Recreational Purposes by the Public An easement is an interest in the land of another which 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

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property if they allow or continue to allow members of the public to use, enjoy or pass over their property for recreational purposes. 10 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 which lies within 1,000 yards inland of the mean high tide line of the Pacific Ocean and its harbors, estuaries, bays and inlets. 11 Public easements to access the beach through private property are often upheld by California courts. Likewise, if a “governmental entity” is using private lands by an expenditure of public funds to make visible improvements, including cleaning and maintenance related to public use, after five years a vested right will be conferred on the public entity to continue such use. 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. 7 8

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


9

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

10

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 tax-supported 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). 11

Civil Code section 1009 (e), Gion v. City of Santa Cruz (1970) 2 Cal.3d 465.

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

May 2014 | ECHO Journal

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Should Individuals be Allowed to Record HOA Board Meetings? By Glenn H. Youngling, Esq.

DRAMA! As the meeting starts, the Directors and manager notice an owner pull out a handheld digital recorder and push the start button. The owner is a longtime critic of the Board and manager. This action is viewed as an attempt to intimidate the Board. The owner is told to turn it off and put it away. A heated exchange follows and the owner storms out. The next day flyers are posted around the complex announcing that the Board is conducting secret meetings and refuses to permit recordings of their meetings at which tens of thousands of dollars owners’ money is spent. Many owners recognize the complainer as a perpetual gadfly and ignore the flyer. However, some other owners have no idea what is going on but wonder why the Board refuses to permit a recording if they have nothing to hide. Confidence in the integrity of the Board begins to erode.

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YES!

Discussing people’s gut level feelings about the “right” to record meetings may equally divide even the calmest group of owners. One the one side, owners feel that in this day and age everything a Board does should be open and transparent. Many government proceedings are recorded and sometimes broadcast. Why shouldn’t a recording be available for someone who cares enough to monitor what is going on? If the Directors have nothing to hide, what’s the problem?

NO!

On the other side of the issue are those who view the recorder as a tool of intimidation. It permits sound bites to be taken out of context and used to promote antiBoard agendas. Even if an owner never replays the recording, there is heightened credibility when the owner proclaims: “That isn’t what happened. This is what happened...... I know because I was there and I have a recording!” Recordings are often used by owners to argue for changes to even the best kept minutes. Additionally, most directors live with a level of anxiety that something they do will end up in litigation. They may hesitate to fully participate in discussions if they fear their words may come back to haunt them. A recorder can have a very real chilling effect on debate over important issues.

Maybe

Before your Board ends up facing the challenge of deciding which way to go, it is wise to objectively consider some of the pros, cons and practicalities of Board meeting recordings.

Recording Not Illegal State laws vary, but in California, Penal Code Section 632 makes it a crime to record confidential conversations without the other person’s consent. By definition open meetings are not confidential.

Authority One can legitimately argue that the Board has authority to control the process of its meetings. Logically this includes whether or not recordings will be permitted. But why argue? Is there authority in the Open Meeting Act which permits recording? No. Is there authority in the Association’s Governing Documents? Maybe. It’s worth looking to be sure. Few Bylaws refer to recordings and those that do typically permit it only with the approval of the Board. If your Bylaws do not have such

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a reference, put it in during the next update. If they are silent, consider adopting a policy before the next controversy.

Discretion Who records, when it is done and what the purpose is makes a big difference. As a general proposition it makes sense to set the general rule as “no” unless approved by the Board. Then the Board can selectively get the benefits of the tool and decrease the potential for downside abuses.

Changes in Technology In days past, a person who pulled out a tape recorder and placed it in the open was often making a hostile gesture. It was meant to intimidate and disrupt the proceedings. Presently, it is likely that

everyone in the room has a cell phone and iPad or other tablet with excellent recording capability. It may be difficult or impossible to tell if someone is making a recording.

Practical Dilemma Times change. Now the person recording with a cell phone or tablet is just as likely to be mild- mannered and unobtrusive as one with an overt agenda. If the meeting is not being disrupted, how does the Board enforce a restriction? Threaten a fine? Offend a well-meaning, interested owner? Move the meeting? Attempt to physically eject the person? In most instances the effort to enforce will appear heavy-handed. The person who wanted to record a part of the meeting will have the sympathy of some other owners (present or not) who have no idea what the underlying background may be. The issue can quickly lead to the perception of a power-hungry Board that wants to operate in secret.

High Tech Tools A variety of “apps” are available to record and take notes using cell phones and tablets. The most powerful tools target students who use them in lecture halls. The dozen or more that are very popular, include Notability, AudioNote and Penultimate. Meeting-based note taking apps permit handwritten notes (on a tablet with stylus), type written notes, audio recording linked within the document and integration of outside documents including photos and pdf ’s. Handouts distributed at the meeting can be scanned as pdf ’s using apps such as JotNot. Photos taken at the meeting can be opened into note pages of these apps. There are a growing number of managers and Board secretaries who are using these tools to make their lives easier. This use is also blurring the line of when a recording is acceptable and when not.

May 2014 | ECHO Journal

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member access. However unless you want a recording to be an accessible corporate record, care should be taken to make clear any recording is personal to an individual and/or for use in preparing minutes (and may be erased after adoption of the minutes). Such a directed use may be noted in the Board permission to record the meeting.

Deterring Unruly Behavior If the Board has a challenge with overly dramatic owners disrupting the meeting or acting out, consider setting up a video recorder in the corner which in part faces the audience. Sometimes a video recorder will deter attendees from aggressive and disruptive conduct. If it fails to do so, it may become a record for sanctions or even use in procuring a restraining order.

Minute Taker Supplement If a meeting participant is also taking minutes, the burden of transcribing can preoccupy that person who should be more actively involved in the collaboration. Some secretaries and managers use a recording as a tool to assist in expanding and verifying details that go into draft minutes. After the formal minutes are approved, the recording is erased or deleted. If an attendee of the meeting is known or suspected to have also recorded the meeting, the “official� recording might be kept to counter any subsequent claims or accusations.

The Clicker Style

Corporate Record? If a Director or manager records an open meeting of the Board, sooner or later an owner will ask for a copy, vaguely referring to Davis-Stirling member rights to corporate records. The Act does not refer to recordings so there is no automatic right of 26 echo-ca.org

Some minute takers have the recorder at hand and only turn it on only after someone is prepared to state a motion. This emphasizes the importance of a clearly worded motion. It is then turned off and the minutes may indicate that there was discussion and record how the votes were cast.

Parallel Recordings


As a general proposition it is wise that if an owner is permitted to record a meeting, the Board should also make a recording so it has control over a copy. An alternative is to prohibit the owner from recording but have the secretary or manager record the proceedings. Then a copy can be made available to owners who request it.

Put It All Out There Particularly in large associations, Boards may record entire meetings and make the recordings available in streaming (live) or downloadable formats. Few owners will access the electronic information, but knowing they could may generally boost owner confidence in the integrity of the Board process.

Now? An ideal time to address the subject is when the Bylaws are being updated. A typical provision says no recording, unless the person in charge of the meeting consents. That provides the most flexibility and greatest number of options to fit the circumstances. Until then, consider rules or a policy addressing meeting processes generally and include Board authority to control recordings in that context. Remember that any such rule or policy will be subject to member review prior to adoption (CC 4360). All too often recording at meetings becomes an issue in the midst of a greater substantive issue being addressed by the community. As a secondary issue it can simultaneously distract from the primary issue(s) and undermine owner confidence in the integrity of the Board process. Being proactive on the use of recording meetings before there is a problem makes sense. Glenn H. Youngling is an attorney with offices in San Rafael whose practice includes a sizeable number of common interest developments. He is a member of the ECHO Legal Resource Panel and a frequent speaker at ECHO seminars. May 2014 | ECHO Journal

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EFFECTIVE BOARD MEETINGS By Ken Bade, PCAM

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T

o understand what an effective board meeting is, one must first define “effective”. Webster’s II New Riverside Dictionary defines “effective” as “producing or designed to produce a desired effect”. Before a board of directors can operate effectively, they must garner an understanding of what is keeping them from their goal. Therefore, before we delve into how to conduct an effective board meeting, it might be helpful to understand some of the issues that make them ineffective. Eliminating these common problems will certainly lead to more productive and shorter meetings.

First, a board meeting is not a meeting of the members; their involvement is specifically limited. It is the board’s job to help the membership understand this.

A board meeting is not a meeting of the High School Debate Club. I’m not referring to the required

discourse a board must engage in to reach a decision; I’m referring to debate between board members and owners who choose to attend the meeting. While sometimes necessary between board members, this interaction with audience members must be avoided for a meeting to be effective.

Effective board meetings start with strong leadership from the president. That leadership must

provide a clear understanding of the board’s purpose, which is the successful operation of the organization. As the elected representatives of the association, the board is charged with oversight of the

community’s finances, infrastructure and condition of common and private properties—no small task in and of itself. Comparable to a City Council, the board must weigh and consider what is best for the entire community while trying to place self interests on the back burner, often without much help or participation from fellow owners. At least, that is the case until the board must make an unpopular decision.

Understanding the purpose and overcoming the first obstacle I mentioned becomes paramount. If the board allows too much homeowner involvement during the meeting, business cannot be completed. So how do we engage those present while still getting the work accomplished? This requires a firm but fair board president who decisively establishes the rules of engagement from the beginning and stands by them. Timed agendas and time limits for owner comments related to agenda-specific items are imperative.

Provide everyone who attends with a detailed agenda containing all the action items the board will be voting on at the meeting. Owner commentary should

be limited to the agenda items and permitted only at the beginning or the end of the meeting with a time limit of three minutes. If an owner wishes to bring other items to the board’s attention and those items will require action from the board, they should be acknowledged, noted and placed on the agenda for the next regular board meeting.

Establish time limits for board members. Three minutes per board member is sufficient in most cases. Provide opportunity for

opposing comments and curtail discussion when the president feels that both sides have had adequate opportunity to present their side or the discussion becomes redundant. However, board members may, during deliberations, ask specific owners questions to clarify a point if desired, but this should not be allowed to reopen discussion from the audience. Remember that the board was elected to make decisions on behalf

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Sacramento Educational Seminar Saturday, June 14th, 2014 8:30 AM to 12:30 PM

Join us for the second ECHO Sacramento Educational Seminar featuring expert legal advice and fundamentals in finance and banking. Register online at www.echo-ca.org or fill out the form below.

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32 echo-ca.org

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of the members, and those decisions should be in the best interest of the association. That requires listening and being well informed; it does not mean being badgered and bullied from the floor during a board meeting.

Another significant detractor to conducting an effective meeting is being drawn into a debate with an impassioned homeowner during the open forum or homeowner commentary portion of the meeting. This one is hard to avoid

as board members are often as passionately in favor of or against the owner’s position as the owner. Again, the president has primary responsibility to control this situation. Unfortunately, he or she may be the one who is engaged in the raging debate with the audience member or board member. It takes a significant amount of self control to avoid this pitfall, and it may fall to another member of the board to intervene and get things back on track.

While it is human nature to defend your position, it is obviously counterproductive to the conduct of a efficient meeting.

packet goes a long way to being effective. Prior preparation allows board members an opportunity to ask for clarification in advance of the meeting. This not only facilitates clearing agenda items, but it also allows the manager to provide any additional information the board might need to make its decision.

To fulfill their fiduciary obligations, board members must be effective. To reach that desired result,

they are empowered to hire professionals such as accountants, attorneys, engineers, landscape contractors and management firms to provide them with detailed professional guidance and information. Consulting with these professionals provides the board with both expert guidance and a level of protection under the law that will help them to be more effective.

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Controlling the emotional side of the equation often proves a formidable task, but one that must be undertaken none the less. Many boards find that judicious use of parliamentary procedure can help.

Last but certainly not least is preparation. How simple would it be if everyone was prepared to work when the meeting is called to order, and the agenda items checked off like clockwork?

I think everyone has attended a board meeting where the directors arrive moments before the appointed hour, sit down and proceed to rip open the board packet the manager so diligently provided five to seven days ago. Everyone present has seen the massive agenda and knows full well that the five detailed requests for proposal are listed as action items. No doubt this is going to be a long meeting. Failure to familiarize oneself with the material to be discussed almost certainly leads to an ineffective meeting. It may sound simplistic, but reading and understanding the content of the board

May 2014 | ECHO Journal

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directory updates

All current listings may be found in our Professionals Directory available online at www.echo-ca.org.

New Members Fenton Grant Mayfield Kaneda & Litt, LLP 1990 N. California Blvd. Suite 608 Walnut Creek, CA 94596 Contact: Allison Anderson Tel: (925) 549.7877 Forster Construction Management P.O. Box 222783 Carmel, CA 93922 Contact: Trevor Forster Tel: (408) 499-8166

Sacramento Bank of Commerce 1504 Eureka Rd. Suite 100 Roseville, CA 95661 Contact: Betina Schessow Tel: (916) 772.0131

Become an ECHO Professional Member and receive the benefits of membership. To learn more, visit our membership page at www.echo-ca.org

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advertiser index

about ECHO

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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.................$499 Association Management Membership.......................................$499 Individual Membership.......................$75

Office 1960 The Alameda, Suite 195 San Jose, CA 95126-2308

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.

August 2013 || ECHO February May 2014 2014 ECHO Journal Journal

37 37


ECHO honor roll

ECHO HONORS VOLUNTEERS ECHO Resource Panels Accountant Panel Marco Lara, CPA 650-632-4211 Central Coast Panel John Allanson 831-685-0101 East Bay Panel Beth Grimm, Esq. 925-746-7177 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 George Engurasoff 408-295-7767 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 Geri Kennedy, CCAM Wanden Treanor, Esq.

38 echo-ca.org

Regional Seminar Speakers

Recent Contributing Authors

Marin David Feingold, Esq. Wanden Treanor, Esq. Glenn Youngling, Esq.

October 2013 Beth Grimm, Esq. Debra A. Warren, PCAM, CCAM Richard Tippett Sharon Glenn Pratt, Esq. Geri Kennedy

Santa Cruz John Allanson Jeffrey Barnett, Esq. Diane Rossi, PCAM Ron Duncan Toby Goddard Piret Harmon South Bay Sharon Pratt, Esq. Rosalia Tapia, Esq. Matthew Harrington, Esq. Terin Reeder Robert P. Hall, Jr., Esq. Stephanie Hayes, Esq. Wine Country Carra Clampitt Bill Gillis, Esq. Steve Lieurance, CCAM Jim MacMillan Michael Cantarutti Paul Schultz, CLCA.

November 2013 Tyler Berding, JD, PhD John R. Schneider James H. Ernst, CPA, MS-Tax Tom Fier, Esq. Burt Dean December 2013 Sandra M. Bonato, Esq. Katherine Naegele Derek Eckert Ann Rankin, Esq. Burt Dean January 2014 Douglas Christison, PCAM Barbara Ellen William S. Erlanger, CPA Joelyn K. Carr-Fingerle, CPA Tyler P. Berding, JD, PhD

Fresno Geri Kennedy David Levy, CPA Michael J. Hughes, Esq.

February 2014 Jeffrey A. Barnett, Esq. David Kuivanen, AIA Elizabeth Lanham Sharon Glenn Pratt, Esq.

Walnut Creek Stephanie Hayes, Esq. Lisa Esposito, CCAM Rob Rosenberg, CCAM Beth Grimm, Esq.

March 2014 Teresa Powell & Brian Seifert Sandra L. Gottlieb, Esq. Marc Dunia Charlotte Allen

Monterey John Allanson Diane Rossi, PCAM, CCAM Sandra Bonato, Esq.

April 2014 Thomas Connelly Burt Dean Walt Grady, CPA Andrea L. O’Toole, Esq. Emily K. Clark, Esq. Michael Hardy, Esq.

Sacramento Ian Brown, CCAM Bill Erlanger, CPA Don Haney, CPA Deon Stein, Esq.


NEW

at echo-ca.org

New legislation, quick tips, and fresh insights - we’re adding new information to our website daily. Log in to read the articles below. Not sure how to access your free account? Email ECHO at: newaccount@echo-ca.org.

Articles As the weather warms, you may be examining your reserve study for upcoming projects. Read these articles online and get reacquainted with important information about major projects, contractors, and contracts.

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

The Steps to Success: Painting for Protection and Appearance

From pre-project planning through your contractor interviews, use this article to make sure that your painting projects gets done the right way. A successful project is visually appealing, protects your buildings, and doesn’t include huge and unexpected costs. Educational Topic: Painting

Checklist for Construction Contracts

Here it is: the (mostly) definitive checklist. Identify the 12 key provisions that need to be addressed in every contract. Learn what they mean, and how they could affect your project and HOA. Educational Topic: Contracts

Upgrading to Energy Efficient Windows

Winter happened, and so did the rains. You may have realized that your owners’ windows have served their

useful life. How do you recommend new windows? What’s the best method for choosing a new product? And how do you make sure that replacements don’t compromise the structure of the association’s building? Educational Topic: Windows

Major Reconstruction Projects: An Attorney’s Perspective

Unexpected (and unpleasant) major reconstruction is almost inevitable in the life of every association. But when problems occur suddenly, where do you turn? From choosing the “right” expert, to adjusting the project scope, to drafting the contract, each decision can have a huge impact on the success of the project and the association. Educational Topic: Repairs

Facebook Join Our Facebook Community Want to see pictures from our last 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 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 May 2014 | ECHO Journal

39


legislation at a glimpse

Attorneys at Dispute Resolution Proceedings Bill Information

Summary

AB 1738

What Does AB 1738 Say?

Support if Amended

This bill by Assemblyman Chau would require that association dispute resolution procedures, including internal dispute resolution (IDR), permit a member or the association to use counsel to explain their position.

Author: Chau Status: In Assembly Housing & Community Development Committee.

How Will AB 1738 Impact Your HOA? We support the effort to place boards and owners on an equal footing in the IDR process. However, we believe that AB 1728 is flawed for three reasons: 1. Involving counsel will increase costs and change the nature of IDR. IDR is intended to be inexpensive and internal. Adding outside counsel will increase the expense and formality of an informal opportunity for association boards and owners to resolve their differences. 2. Involving counsel will escalate tension. Attorneys move IDR closer to formal legal action, and diminish the possibility of an amicable resolution. 3. Associations and owners can use counsel during Alternative Dispute Resolution (ADR). The formal procedure of ADR, a necessary pre-trial process, allows both parties to use counsel; including attorneys in IDR is unnecessary and counterproductive.

What Amendments Would We Support? We support an amendment to AB 1738 that would prohibit associations from using counsel in IDR, except when an owner provides 72 hour, required, advance notice to the association of their intention to use counsel.

Voiding HOA Landscaping Rules Bill Information

Summary

AB 2561

What Does AB 2561 Say?

Oppose

This bill by Assemblyman Bradford would void any provision of the governing documents of a common interest development that prohibits the use of a homeowner’s front or back yard for personal agriculture or entrepreneurial agriculture or prohibits a homeowner from the off-site sale or donation of produce grown on the homeowner’s property.

Author: Bradford Status: In Assembly Judiciary Committee.

How Will AB 2561 Impact Your HOA? This bill would have two immediate consequences in your community: 1. Void your landscaping rules. Owners would be permitted to grow “edible plants” in their front or back yards, overriding existing rules and community aesthetic. 2. Permit on-site agricultural businesses. Owners could grow plants for commercial use. Associations could place reasonable restrictions on the hours of operation and prohibit on-site sales, but would need to allow business-related activities and visitors.

Why Does ECHO Oppose AB 2561? ECHO Opposes AB 2561 for three reasons: 1. HOA communities should be allowed to make aesthetic decisions together. HOAs are unique communities where homeowners share resources and space in common. We believe that overriding governing document provisions approved by the community circumvents the communal nature of effective association governance. 2. Residential HOA communities should be allowed to prohibit commercial enterprises. Many communities work hard to preserve the residential feel of their properties. Forcing HOAs to permit on-site business activities will change family-friendly neighborhoods, increase commercial traffic, and could reduce property values. 3. AB 2561 places unfair, dangerous burdens on associations and owners. This bill does not address the following concerns: who is responsible for increased water usage? Can owners plant trees that could damage property? Is the HOA responsible for mediating complaints about smells related to composting and/or fertilization? Who will be responsible for related pest problems? Can the association prohibit pesticide use? And many more…

What Do You Think? Let us know. Find AB 1738 and AB 2561 on the ECHO website and take our one-question poll. Or visit our Facebook page and join the discussion. On the web: echo-ca.org/hoa-advocacy, On Facebook: facebook.com/echoorg 40 echo-ca.org


legislation at a glimpse

Other Legislation Bill Information

Summary

AB 1360

Electronic Voting

Support if Amended

This bill authorizes an association to conduct elections or other membership balloting by electronic voting. It also requires an association to provide each member with an opportunity to indicate that he or she will be voting electronically and to provide a member who did not indicate so with a paper ballot.

Author: Torres Status: Passed Assembly. In Senate Judiciary Committee.

AB 1636

Drought and Under-Watering Fines

Watch Status: Drought and UnderWatering Fines

This bill would prohibit a city or county, during a drought emergency declared by the Governor, from enforcing a law or ordinance requiring a resident to water his or her lawn. This bill would provide that a requirement imposed by a governmental entity or a public utility to limit, restrict, or conserve water during a drought emergency declared by the Governor does not constitute a diminution of rent or value of a premise or property.

AB 2100

Drought and Under-Watering Fines

Support

This bill would prohibit a city, county, or city and county from imposing a fine or assessment against a landowner for reducing or eliminating watering of vegetation or lawns during any period for which the Governor has declared a state of emergency due to drought.

Author: Brown & Hernandez

Author: Campos Status: Passed Assembly. In Senate.

AB 2104

HOA Regulation of Turf

Watch

Current law voids governing document provisions that prohibit the use of low water-using plants. This bill would extend the scope of that law by voiding governing document provisions that prevent owners from replacing “turf� with low water-using plants.

Author: Gonzalez Status: Amended 4/1. Passed Assembly. In Senate.

AB 2430

HOA Transfer Fees and Disclosures

Oppose

This bill would require that associations and sellers bear all costs related to the documents disclosed to a buyer during a sale.

Author: Maienschein Status: Amended 4/7. Re-referred to Assembly Housing and Community Development Committee.

SB 391

Fees on Recorded Documents

Oppose

In order to fund affordable housing, this bill would impose a $75 fee on each document to be recorded in California.

Author: DeSaulnier Status: Passed Senate. In Assembly Appropriations Committee.

SB 992

Drought and Under-Watering Fines

Watch

This bill would prohibit an association from imposing a fine or assessment on separate interest owners for yard maintenance issues related to under-watered plants and lawns during any period for which the Governor has declared a state of emergency due to drought.

Author: Nielsen Status: Amended 3/28. Passed Senate, urgency clause adopted. In Assembly.

SB 1144

Drought and Under-Watering Fines

Watch

This bill would prohibit a city, county, or city and county from imposing a fine or assessment on separate interest owners for yard maintenance issues related to under-watered plants and lawns during any period for which the Governor has declared a state of emergency due to drought.

Author: Galgiani Status: In Senate. Hearing cancelled.

May 2014 | ECHO Journal

41


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

May 1, 11:45 a.m.

North Bay Resource Panel Contempo Marin Clubhouse 400 Yosemite Dr., San Rafael

Denise Wolford 415-458-3537

Architectural Controls

May 13, 11:45 a.m.

Central Coast Resource Panel Michael’s on Main 2591 S Main St., Soquel

Ann Thomas 800-537-4098 ext. 7530

Water Issues

May 21, 11:45 a.m.

Wine Country Resource Panel Serv-Pro 377 Blodgett St., Cotati

Pam Marsh 415-686-9342

Tree care

June 11, 11:45 a.m.

South Bay Resource Panel Buca Di Beppo 1875 S. Bascom Ave, Campbell

Rosalia Tapia, Esq. 408-369-0800, ext. 205

June 13, 11:45 a.m.

East Bay Resource Panel Massimo Restaurant 1603 Locust St., Walnut Creek

Cindy Wall, PCAM 925-830-4580

June 18, 11:45 a.m.

Wine Country Resource Panel Serv-Pro 377 Blodgett St., Cotati

Pam Marsh 415-686-9342

Reserve Analysis

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

Buca Di Beppo, Campbell

Wine Country

Third Wednesday, Monthly

Serv-Pro, Cotati

Legal

Quarterly

Varies

42 echo-ca.org


Nominating Committee Seeks Candinates for ECHO Board of Directors

T

he Nominating Committee for the ECHO Board of Directors is seeking expressions of interest from persons who are interested in serving on the ECHO Board of Directors. Four positions on the board will be up for election at the ECHO Annual Meeting that will be held in November. These positions are for three-year terms. Current directors whose terms expire in 2013 are Robert Rosenberg, Diane Rossi, Brian Seifert, and Kurtis Shenefiel.

Board members are expected to attend four three-hour board meetings held each year, generally at the ECHO office in San Jose. Each board member also serves on one or more committees that hold regular meetings

throughout the year. In addition board members are expected to attend the Annual Meeting and a two-day board retreat each November. Board members receive no reimbursement for these activities. Nominees must also be members of ECHO, either through their homeowners association or business and have thorough familiarity with the organization and the CID industry. Persons interested in being considered for nomination should obtain and complete a nomination and qualifications form, available by request from the ECHO office. Every potential candidate, including incumbents, must submit a full form. All completed forms must be submitted to the ECHO office no later than July 24, 2014 , to be considered by the nominating committee. Those requesting nomination may be requested to interview with the nominating committee. The committee will meet in late July to prepare recommendations for board consideration. May 2014 | ECHO Journal

43


ECHO Journal - May 2014  

A Journal for California Community Associations

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