Echo Journal, December 2022

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SERVING HOA BOARD MEMBERS & HOMEOWNERS DECEMBER 2022 LEGAL SERVICES PROVIDER DIRECTORY Find legal HOA experts quickly and easily PAGE 40 ECHO IS TURNING 50! Hope to see you at the 50th Anniversary Celebration! SPECIAL INSERT Can an HOA be terminated? PAGE 14 TOUGH DECISIONS Dealing with Disorders 2022 Legal Showcase & Resource Directory MENTAL HEALTH AND SUBSTANCE ABUSE ISSUES IN HOMEOWNERS ASSOCIATIONS • Treasury Services • Web-Based Payment Portal • Integration Services • Operating and Reserve Accounts • Local Lockbox Processing • HOA Loans • Placement Services for Excess Reserves Your HOA Banking Specialist Supporting Member of Give us a call today 844.489.0999 A Dedicated HOA Department Here For You Member FDIC Equal Housing Lender Equal Housing Lender Equal Housing Lender


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Sandra Long


Karl Lofthouse


Mark T. Guithues, Esq.


Jerry L. Bowles

Brian Campisi Rolf Crocker

Sarah Dunia

J. Spencer Edgett, Esq.

John Gill, Esq.

David Hughes David Levy, CPA Kelly Zibell


David Zepponi


Connor Zepponi


Jacqueline Price


The Echo Journal is published quarterly by the Executive Council of Homeowners (Echo). 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 or image.

© 2022 Executive Council of Homeowners (Echo) All rights reserved. Reproduction except by written permission of Echo is prohibited.

Echo member information is never released to any outside individual or organization, unless agreed to by the member.

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The presentations listed below are free to HOA homeowners and board members. Click a title to watch!

Educational Seminar: 2021-2022 Legislative Session in Review

Ask the Experts: Solar & Electric Vehicle Charging Fundamentals

Community Conversation: HOA Elections & Understanding the Role of an Inspector of Elections

Community Conversation: Dealing with Homeowner Apathy

Community Conversation: HOA Taxes and Other Accounting Conversations

Community Conversation: The Rulemaking Process, Investigations, Hearings & Enforcement

Legal Resource Panel: Case Law Update – July 2022 Ask the Experts About Insurance – June 2022

For more information visit

ECHO journal | DECEMBER 2022 3



4 DECEMBER 2022 | ECHO journal Features 6 CEO’s Message: We’re Here for You –Echo Will Be Celebrating 50 Years in 2023!
16 Important Change to Rules for Online Board Meetings 26 Welcome to Our New Professional Service Providers 40 Legal Resource Directory 44 Save the Date! Upcoming 2023 Resource Panel Meetings, Educational Seminars and Community Conversations SPECIAL INSERT: Echo Celebrates 50 Years! 8 Dealing with Disorders: Mental Health and Substance Abuse Issues in Homeowners Associations
14 Tough Decisions:
When to Consider Terminating the HOA
22 The Value of Echo Endures
We Celebrate
28 Keys to Maximizing Critical Relationships with Association Professionals
Its 50th
34 A Framework for Developing Reasonable and Enforceable Operating Rules
34 14 8
ECHO journal | DECEMBER 2022 5

Raison d’Etre – The Reason for


What a beautiful phrase, raison d’etre (reason for being). It every board member should consider and collectively agree.

We’re Here for You: Echo Will Be Celebrating 50 Years in 2023!

The phrase engenders humanity. The words roll from one’s stark business senses and adds the element of humanity to a board: Strategic planning, execution and evaluation; mission management. The business realities should be reflective of common values of individuals in the community.

Echo will be celebrating its 50th anniversary in 2023. Help us reflect on one of housing’s most long-lived and storied nonprofit associations dedicated to the formation and organization

climbed. Pushed to the brink, Howard Jarvis and Paul Gann led the way for the Great Tax Revolt of the 1970s, which severely limited the ability of governments to raise taxes to pay for sorely needed infrastructure and community asset construction, repairs, maintenance, and replacement.

Communities are imperfect – because they are made of humans. relating. Humans using. Human living. Basically, humans being being human, communities sometimes forget that management establish norms for a successful community. In a sense, the the community. Its purpose is to establish order and elevate progress and pace by establishing norms and constraints to benefit all.

of an “industry” of HOAs and common interest developments.

Our adventure was cast a few years prior to the formation of the Executive Council of Home Owners (Echo). The need for the association was driven by the events of the post-Vietnam War era and a turbulent time of economic stagnation and high inflation (between 6% and 14% in the 1970s) that characterized this period of “stagflation” and economic adjustment. There was also a need to modernize the California Condominium Act of 1963 to fit the changing times.

It seems apparent that board leadership must understand owners in order to orchestrate a sense of community and generate and protect community values. The purpose of a board, therefore, build community based on common values for the good of

Housing was as critical then as it is now, and with stagflation and skyrocketing mortgage rates, few Americans could afford to buy a home. Governments were boxed in because they needed cash to maintain and develop the infrastructure of their communities. They pushed for funding for these projects, and as inflation drove up the price of the infrastructure and homes, property taxes likewise (and necessarily)

The housing industry’s and the government’s solution was the proliferation of privately run nonprofit corporations called homeowners associations (HOAs) to run community developments and assess homeowners for the amenities they share in common with other homeowners in the development. These HOAs would have the corporate authority to levy assessments on corporate members, the HOA homeowners, and manage their common assets for the good of the community. As with most corporations of the times, these common interest communities would be managed by a board of directors composed of members elected from among the homeowners, who would follow the governing documents of the corporation such as bylaws, the declaration, and rules.

It takes time to orchestrate a community. It takes time to know time to listen to the voices and build a vision reflective of community and you will be more effective as a board member and satisfied your reason for being on the board.

ECHO is committed to helping homeowner boards and residents ing and advocacy – this is our “raison d’etre”.

It all sounded well and good, but the practitioners in the industry (the legislature, tradespeople, attorneys, developers, managers, and community members) found the concepts challenging on many fronts. Continued on page 33

6 DECEMBER 2022 | ECHO journal


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Whether a community requires counsel on day-to-day issues or assistance with a specific project, Epsten, APC’s attorneys work together with their clients to save them time and money.

Whether your community requires counsel on day-to-day issues or assistance with a specific project, our attorneys work together with our clients to save them time and money.

Epsten, APC is proud to be one of the most experienced and qualified law firms in Southern California providing legal knowledge and expertise to community associations. With offices in San Diego, Indian Wells and Temecula Epsten, APC serves associations throughout San Diego, Riverside, San Bernardino, and Imperial counties.

Offering a comprehensive portfolio of services, Epsten, APC’s team of attorneys and staff provides clients* with peace of mind and proven results.

Epsten, APC handles all client needs inhouse. From corporate counsel, amendments to CC&Rs or other governing documents, election rules and annual meetings, contract review, advice on rule enforcement and fair housing practices, FHA certification advice, judicial foreclosures and bankruptcies, developer transition, negotiating settlements of disputes, mediation, insurance defense litigation, third-party contractual litigation,

civil litigation, appellate litigation or solutions to construction defects, Epsten, APC’s experienced attorneys work directly with the board and management for the best possible outcome.

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Community association attorneys play a number of roles in the success of a community association, serving as advisors, problem solvers, advocates, litigators and educators. Epsten, APC attorneys are dedicated to the practice and study of the laws and regulations related to community associations in California. Several of Epsten,

To learn more about the firm, consider attending one of their complimentary educational programs. A well-informed board of directors is better prepared to govern its association and to protect the association from both preventable membership discord and litigation. For this reason, Epsten, APC offers an annual Legal Symposia on new laws affecting community association governance, in San Diego and Rancho Mirage, and publishes an annual Community Association Law Resource Book. The firm also offers webinars for community association managers and board members, a monthly eNewsletter, articles, advisories, checklists and resources via their website.

*Please note: Epsten, APC only represents community associations and commercial/mixed-use common interest developments. Epsten, APC does not represent homeowners or clients on matters adverse to their community association.

ECHO journal | DECEMBER 2022 7
10200 Willow Creek Road, Suite 100 San Diego, CA 92131 858.527.0111 | Fax 858.527.1531
Pictured from left to right: Pejman Kharrazian, Esq.; Rian Jones, Esq.; Jon Epsten, Esq., CCAL (Senior Shareholder); Susan Hawks McClintic, Esq., CCAL (Managing Shareholder); Kieran Purcell, Esq, CCAL (Senior Shareholder); Dea Franck, Esq.; William Budd, Esq.

Mental Health and Substance Abuse Issues in Homeowners Associations

dealing with disorders

8 DECEMBER 2022 | ECHO journal

Our society is facing an epidemic of mental health and substance abuse crises. In the homeowners association context, the suffering can spread to homeowners and residents who have no familial or social bonds with the person afflicted. Residents, sometimes sympathetic, often angry or frightened, are forced to deal with nuisances created by addiction and mental illness, which disturbs the peaceful enjoyment of their homes and tears at the social fabric of the community.

These nuisances take many forms. Hoarding can create unsightly conditions, odors, and insect and rodent infestations. Alcohol abuse can lead to belligerent and disorderly conduct. Psychosis and drug abuse can manifest as incoherent late-night yelling and screaming, property damage, and unwanted fixation on other residents. Of course, not every instance of mental health or substance abuse requires board intervention, but when a resident’s behavior creates a nuisance affecting the community, the board may need to act.

But what can be done?

ECHO journal | DECEMBER 2022 9
Continued on page 10

Dealing with Disorders

Continued from page 9

Dispute Resolution Procedure

The problems created by substance abuse and mental health issues can be unique; however, except in emergency situations, the dispute resolution process established by the Davis-Stirling Act should still guide the board’s efforts. These steps are, in order:

1. Disciplinary Hearing (Civil Code §§ 5850–5865)

2. Internal Dispute Resolution (“IDR”) (Civil Code §§ 5900–5920)

3. Alternative Dispute Resolution (“ADR”) (Civil Code §§ 5925–5965)

4. Court Action (Civil Code §§ 5975–5986)

All the board’s efforts to resolve the dispute should be carefully documented so that if the time comes to ask a judge for an award of attorneys’ fees, the association can satisfy the judge that it did everything it could to resolve the dispute before bringing it to court. (The judge will surely want to know about these efforts!)


in Civil Code § 5950(a)(3) of the Davis-Stirling Act, which acknowledges that the necessity of preliminary or injunctive relief excuses ADR efforts.

If, after discussing the problem with the association’s legal counsel, the decision is made to seek court relief, the association will need evidence. Accordingly, it is imperative to encourage affected residents to document in reasonable detail incidents that they observe, and to send to management or the association’s attorney (if counsel is involved) any audio, video, or pictures that are relevant to the situation. If court action is necessary, the association’s attorney will need sworn declarations from witnesses to support a request for injunctive relief. Without evidence, court relief will not be granted.

If Things Get Really Bad

Mental illness and addiction issues can lead to acute disruptions and criminal behavior that cannot wait for court intervention. Indeed, even after injunctive relief is obtained, the problem resident may ignore the court order and continue their disruptive behavior. Residents should be advised to call law enforcement if the disruption is severe or if they fear for their safety.

Residents often want the association to obtain civil harassment restraining orders on their behalf. The association cannot do this. If residents feel they are being individually targeted by the problem resident, they must go to the court and file for a civil harassment restraining order themselves.

Owner/Tenant Distinctions


– Addiction and mental illness issues often lead to situations of extreme nuisance that cannot wait for the standard dispute resolution process to be completed. When there are ongoing serious disruptions to the community or an imminent risk of harm to residents or damage to property, the association is entitled to go directly to court to obtain a temporary restraining order and a preliminary injunction. This is specifically recognized

The board’s approach will be different depending on whether the problem resident is a tenant or an owner.

PROBLEM TENANT – When the problem resident is a tenant, the owner needs to be held responsible. The disciplinary steps outlined above should be followed. Fines should be levied when appropriate as a tool to compel the owner to bring their tenant into compliance. (Fines can be an important

10 DECEMBER 2022 | ECHO journal Continued on page 12
The board’s approach should be different depending on whether the problem resident is a tenant or an owner.


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Our robust client portal, AlterraONLINE, provides 24/7 real-time status reports and related information to our HOA clients and their management. Reports are highly customizable and can be configured to be automatically generated and sent to our clients whenever they desire, free of charge.

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Alterra Assessment Recovery was founded by the principals of Tinnelly Law Group, a premiere California HOA law firm that’s been in business for over 30 years. The firm sought to expand its service offering in response to the frustrations of its clients dealing with the challenging environment of assessment collection. Those clients welcomed the opportunity to work with a collection team who shared the firm’s commitment to quality, responsive and efficient service.

Unlike typical collection firms, Alterra does not believe a “one-size-fits-all” approach is the answer for every file. Alterra guides each client throughout the process, ensuring that any action to be taken is the right one based upon the particular facts of the homeowner, the property and any senior lienholders.

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Industry-Leading Systems & Innovative Web Portals

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Our innovative homeowner portal,, helps streamline our communications with delinquent homeowners and assists them in their efforts to bring their accounts current. It provides access to various information and request forms to expedite the resolution of matters and avoid delays.

Our skilled team is supported by advanced systems and expert HOA lawyers to deliver results.

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ECHO journal | DECEMBER 2022 11
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negotiating tool, as they can be reduced or dismissed to encourage compliance at no cost to the association.) This can include a demand that the owner commence eviction proceedings against the problem tenant. Though it may sound heartless, the association is not a mental health institution or rehabilitation center; the interests of the other residents in the peaceful enjoyment of their homes takes precedence.

PROBLEM OWNER – When the problem resident is the owner, the board’s options are more limited, because the association has no right to evict even a severely problematic owner from their home. Again, the disciplinary

steps above should be followed, up to and including injunctive relief. In extreme circumstances the board can use the leverage of fines, injunctive relief, and even a monetary judgment to pressure the problem owner into selling or renting his property and moving to a home where they will not be a source of conflict for the neighbors.

Procedural Tools to Assist the Board

It is important to have operating rules in place that can help the board deal procedurally with the negative community effects of mental health and addiction issues. While most CC&Rs have general prohibitions against nuisances, more precise rules and regulations adopted by the board can give it the tools to

address problem residents. For example, anti-harassment rules may be used to curtail behavior in which the offender is targeting managers, board members, vendors, and/or residents with harassing behavior. “Quiet hour” rules may be used to discipline residents who cause late-night disruptions. Rules against public intoxication in common area amenities may be used to limit drunk and disorderly conduct. The association should have a fine schedule so that monetary fines may be levied for violations of these rules.

Parting Words

The board is urged to be compassionate with those suffering from addiction or mental health issues. When possible, these persons should be referred to appropriate health service providers. But when these issues negatively impact the community, the board must make decisions in the best interest of the community as a whole. The board cannot require residents to undergo therapy or rehabilitation, so it must use the tools available within the law and the association’s governing documents to restore and maintain the community’s peaceful enjoyment of their homes.

Community managers and board members call upon Mr. Combs to resolve nuisances involving disruptive behavior, harassment, criminal activity, and all the myriad issues arising within the homeowner association context.

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Our Mission is to Preserve and Protect Your Community’s Values

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Expert Advice for Homeowners Association Board Members

The issues which arise within the community association context require specialized legal advice. Whether it is enforcing governing documents, maintenance and repair obligations, abating nuisances, reviewing vendor contracts, member discipline, elections and corporate governance issues, or compliance with the Common Interest Development Act, we offer complete, expert legal assistance for our community association clients.

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Kornheiser Combs LLP provides full collections services, from intent to lien letters through judicial and nonjudicial foreclosures, providing and enforcing payment plans, as well as prosecuting court actions to obtain and enforce money judgments. All of our work is in strict compliance with the Davis Stirling Act, the Fair Debt Collection Practices Act, the Rosenthal Act, and other applicable laws. Our attorneys are certified bankruptcy filers with substantial experience advising our board members throughout a delinquent owner’s bankruptcy case. Our post-judgment collections skillset is comprehensive, and our clients’ full recovery of delinquent assessments, costs, and attorneys’ fees is our top priority.

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At WKC we never lose sight of the fact that our goals are the same as the Board’s goals: to preserve, protect and enhance values in your community – both financial and aesthetic. We know that success comes from long-term relationships with our HOA clients, bearing this in mind, we bill conscientiously, efficiently, and ethically for our work.

ECHO journal | DECEMBER 2022 13
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Tough Decisions

14 DECEMBER 2022 | ECHO journal


a homeowners

recent spate of wildfires, HOAs are forced to question whether it is worthwhile to rebuild the development. It is no wonder many condominium owners are now asking,

there a way out?”

Can an HOA Be Terminated?

The short answer is yes, but only if state and local laws, the lenders of the property, and all the members of the HOA consent to it.

STATE AND LOCAL LAWS – The first and probably most important consideration is whether the local jurisdiction (e.g., state, county, city) allows such a dissolution of the HOA in question. If local laws have established extensive rules around conversion of condominiums, as in San Francisco, the same jurisdiction likely discourages the deconversion of the condominiums. Governmental approval may not be readily granted in the case of multi-unit buildings and subdivisions that were approved based on the property becoming an HOA in the first place.

Current state law also promotes HOAs and expressly discourages terminations. Under the Davis-Stirling Act, the state legislature states that “[i]f declarations terminate prematurely, common interest developments may deteriorate, and the housing supply of affordable units could be impacted adversely.” (Civ. Code § 4265(a)). This statement establishes a clear state policy in favor of preserving HOAs, not terminating them.

The Davis-Stirling Act also provides procedures for extending the declaration, even where the declaration has a termination date, or where the declaration does not provide a mechanism for extending the termination date. (Civ. Code § 4265(a)-(b)). Unlike other states that are currently enacting legislation to allow HOA termination, California has a well-established policy in favor of HOAs under the Davis-Stirling Act.

LENDERS – In addition to state and local laws, lenders with a security interest in the development must approve the dissolution. A dissolution changes the nature of a lender’s security assets, and lenders may consider this change an automatic default or a trigger for a balloon payment. In the event of a dissolution, each owner in the association must be prepared for the consequences under their respective loan agreements.

THE OWNERS – The HOA must consider the requirements for dissolution under its own governing documents. In general, the members must approve the termination. (Corp. Code §§ 5034, 8610(a)). If an association maintains five or

ECHO journal | DECEMBER 2022 15 Continued on page 16
There are many reasons to consider the
association. Buildings require more costly maintenance and repairs as they age. Owners become increasingly disengaged from their own associations. The owners who do volunteer become overwhelmed with mounting responsibilities as board members. The state enacts more laws at a speed that HOAs are unable to keep up with. And in other more catastrophic cases, such as the

Tough Decisions

Continued from page 15

more condominiums, apartments, or lots, then 100 percent of the members must approve of dissolution. (Corp. Code § 8724; Bus. & Prof. Code § 11004.5). Governing documents also often require the approval of local government entities and lenders to terminate an HOA.

If an HOA has been the subject of an order for relief in bankruptcy, or if it has no members, or if it has disposed of all its assets and has not conducted activity for the five years preceding the dissolution, the board can elect to dissolve. (Corp. Code § 8610(b)). Note that if the number of directors in office is less than a quorum, the association may need the unanimous consent of the directors. (Corp. Code § 8610(c)). The board of directors must also approve any termination of assets pursuant to Corporations Code section 7911(a)(1).

The Davis-Stirling Act does recognize limited circumstances


On October 17, 2022, Governor Newsom announced that the COVID-19 State of Emergency will end on February 28, 2023. This timeline will affect those community associations relying on Civil Code § 5450’s State of Emergency “unsafe or impossible” exemption to hold virtual (Zoom) meetings without providing a physical meeting location. Associations will need to prepare for conducting inperson meetings again and following the requirements of Civil Code § 4090.

that would allow an owner of a separate interest in a condominium project to maintain a partition by sale action, to force a sale of the entire project:

(1) More than three years before the filing of the action, the condominium project was damaged or destroyed, so that a material part was rendered unfit for its prior use, and the condominium project has not been rebuilt or repaired substantially to its state prior to the damage or destruction; or

(2) Three-fourths or more of the project is destroyed or substantially damaged and owners of separate interests holding in the aggregate more than a 50-percent interest in the common area oppose repair or restoration of the project; or (3) The project has been in existence more than 50 years, is obsolete and uneconomic, and owners of separate interests holding in the aggregate more than a 50-percent interest in the common area oppose repair or restoration of the project. (Civ. Code § 4610).

How Does One Terminate an HOA?

The first step in termination is seeking approval from the board, HOA members, government entities, and lenders. Once there is a resolution or plan to dissolve, the HOA must provide notice to the IRS by filing Form 966, while keeping in mind any tax consequences that may apply.

The HOA must then find an entity to take over association responsibilities, such as maintenance and repair of common areas. In some cases, local government entities may be willing to take over these


The HOA will also need to sell all corporate assets. The board of directors must approve any termination of assets, though there need not be a vote by members to do so. (Corp. Code §§ 7911(a)(1), 8710(g)).

Conversely, if the HOA has any debts or liabilities, they must be paid or adequately assumed in good faith by either someone financially responsible or the U.S. government. (Corp. Code §§ 8713–8714). All known HOA creditors and claimants must receive written notice of the dissolution, giving them an opportunity to send claims to the HOA for at least 120 days after the notice becomes effective. (Corp. Code § 8618).

Notably, a receiver may be able to assist in the dissolution process and management of HOA affairs. The court, with the HOA’s approval, can appoint a receiver if the court believes a receiver is in the best interests of the HOA and its members. (Code Civ. Proc. §§ 566–567; Cal. Corp. Code § 8513).

What Happens to the Property Post-Termination?

Upon termination, each owner should continue to own their respective unit as a separate parcel. However, common areas present the biggest challenge. In an HOA, the HOA itself owns the common area, and use of the common area is typically shared equally by the owners. (Civ. Code § 4500). The HOA retains the right to reasonably control the common area and is typically responsible for its maintenance and repair. After termination, the owners need to decide who will own the (former) common area.

16 DECEMBER 2022 | ECHO journal
Continued on page 18


There is no substitute for Expertise. HOA Law is what we do. Representing California HOAs exclusively for over 30 years.

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Tinnelly Law Group is devoted entirely to the unique legal landscape that HOAs and their Boards of Directors face. Virtually all of our efforts are directed toward the representation of HOAs. Our firm prides itself on being sensitive to the interests of HOAs and being able to craft pragmatic, sensible and effective solutions to their problems.

Our firm believes there is no substitute for expertise. We have been representing HOAs exclusively since our founding in 1989. Our firm has developed a special expertise in the areas most important to Boards of Directors in their efforts to manage the affairs of their HOA: general counsel, governing document interpretation and enforcement, assessment recovery, alternative dispute resolution (ADR)

and litigation. We also dedicate a substantial amount of time and resource to publishing educational whitepapers, blog posts and newsletters addressing trends in HOA law and popular issues encountered by our clients and their management.

We are constantly looking for ways to expand upon the value we add for our clients. One of our websites, FindHOALaw. com, is a comprehensive library of HOA law and legal information. Its thousands of pages of content and easy-to-use interface provides our clients and their management with a powerful tool for learning about the unique body of law governing HOAs in California.

We understand the importance of responsive and accessible attorneys and staff. Our technology and office policies ensure open and immediate lines of communication with our clients and their management. Our firm understands that cost-efficiency should be a central tenet of every professional services firm. We have made significant investments in cutting edge, cloud-based technology to improve our efficiency and to provide significant cost savings for our clients. This technology drastically improves the efficiency with which we access, manage, store and secure our clients’ files and information, while expanding the ability of our clients to communicate with our attorneys. The result is more effective handling of client matters at a reduced expense to our clients.

Our firm believes that excellence requires a commitment to continued improvement—both in the way we service our clients’ needs and in our knowledge of the changing laws which relate to the representation of HOAs. We pride ourselves on being sensitive to our clients’ interests and on being able to craft sensible and effective solutions to their problems. The trust we have earned has resulted in client relationships that span decades.

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ECHO journal | DECEMBER 2022 17

If practical, the common areas should be divided up equitably among the owners and subsumed into their respective separate parcels of land (e.g., common area decks or parking spaces could be subsumed into the separate parcels). If it is not practical to equitably divide the common area among the owners, another solution is to record cross-easements, or reciprocal easements, in favor of and against each owner’s property. This would allow owners to continue using the property — for example, to access shared roads or maintain shared utility systems. Yet another option is to sell the common area to a third-party investor, who would then grant easement rights for each of the owners to use or access the property.

But even post-termination, owners face the same issues as when the property was HOA common area. With cross-easements, owners will still face issues regarding use restrictions, maintenance/ repair obligations, cost sharing, access rights, and insurance/indemnification of the property. In an HOA, owners at least have the benefit of state laws and their governing documents to establish their respective rights and responsibilities regarding the

shared area. There are also delineated procedures for addressing disputes between HOA members involving maintenance, use, or access to a shared area. By contrast, when owners are not in an HOA, there is less certainty in how disputes over crosseasements will be resolved and no clear procedure for resolving such disputes. The problem with common areas in a post-termination situation may discourage owners from terminating their HOA in the first place.

In sum, there are both risks and benefits to termination of an HOA. But before considering a termination, an HOA or its members must determine whether it is even legally possible, whether it is feasible based on lender approval, and whether it is practical or valuable for all owners based on the physical configuration of the development.

A. Jeanne Grove, Esq., managing partner and co-chair of the Real Estate Practice Group at KDV Law, practices real estate litigation, including HOA disputes. She also regularly counsels HOA’s on their day-today operations and compliance matters. Ms. Grove is also a California licensed real estate broker.

18 DECEMBER 2022 | ECHO journal
Tough Decisions Continued from page 16 © 2022 First-Citizens Bank & Trust Company. All rights reserved. CIT and the CIT logo are registered trademarks of First-Citizens Bank & Trust Company. MM#11612 Expertise. Focus. Solutions. Put the leading bank for community association management companies to work for you with individualized service, award-winning technology and smart financial solutions. Let’s get started. Roxanne Jolicoeur, Vice President 925.963.9733 |


Your HOA’s Best Choice for Superior Legal Representation

Whatever the project, HGCT brings a collaborative, friendly approach their clients find refreshing and rewarding.

Hughes Gill Cochrane Tinetti, PC (HGCT) provides effective, affordable legal representation to community associations throughout Northern California. It’s all they do. And they do it with experience and insight, creating smart, strategic solutions that meet the complex and varied needs of common interest developments.

They handle both general representation and litigation matters for condominium projects, planned developments, and commercial common interest developments of all sizes and are experts in the unique issues facing senior housing communities, co-ops, timeshares, urban in-fill projects, and high-rise developments.

Hundreds of homeowner associations and community association managers trust HGCT to expertly handle their legal needs. Whatever the project, they bring a collaborative, friendly approach their clients find refreshing and rewarding.

Service Specialties

HGCT attorneys have extensive experience in all facets of common interest development law and litigation. They’ve developed a balanced practice capable of serving the complete legal needs of community associations.

HOA Governance & Transactions

HGCT provides comprehensive general legal services for community associations and are experienced in every aspect of operations, governance, maintenance, and financing. Their attorneys are fully conversant with all issues related to California’s DavisStirling Act, governing documents, statutory requirements, and best practices.

Construction Defects

Maximizing recovery is the key to a successful construction defect claim. They pursue every possibility, discover every

problem, and fight to obtain every dollar to which their clients are entitled. And they don’t stop there – maximizing recovery is only the beginning. They offer extensive post-recovery services which maximize the economic benefit of the recovery. They are there from start to finish, every step of the way, to ensure a complete, cohesive and comprehensive handling of every construction defect and reconstruction scenario.

About HGCT

Headquartered in Walnut Creek, HGCT is a California law firm, with Bay Area roots, and strong local relationships. They focus exclusively on clients in the greater Northern California area and each of their attorneys is a recognized expert in community association law. They have more than a dozen attorneys who combine for more than 250 years of collective practice experience representing this specialized area. Their attorneys regularly serve as featured speakers at industry educational programs at the local, state and national level and author articles and reference materials to assist community associations in meeting their extensive and complex legal obligations.

Whether you’re a board member, community association manager, or commercial property owner, HGCT is the only law firm you need.

2820 Shadelands Drive, Suite 160 Walnut Creek, CA 94598 (925) 926-1200 |

ECHO journal | DECEMBER 2022 19
20 DECEMBER 2022 | ECHO journal



Ms. Grove and KDV Law have been prominent leaders of diversity in the legal profession. Ms. Grove was awarded a California State Bar Real Property Section Morning Star Award for excellence in real estate law in 2013, and in 2017, she received the Minority Bar Coalition Unity Award for advancing the cause of diversity in the legal community at-large. KDV Law achieved Mansfield Rule 5.0 certification in 2022, one of only 160 firms nationwide to achieve this status, representing the firm’s ongoing success with diversity and inclusion initiatives.

Ms. Grove and the KDV Law team apply their diverse backgrounds to reach creative and effective solutions based on the unique circumstances of each of their clients.

The Real Estate Practice Group at Kaufman, Dolowich, Voluck, LLP (KDV Law) handles transactions, consulting and litigation on behalf of clients across the nation. Our full spectrum of services allows clients to rely on one law firm for all of their real estate needs. We take a transaction through all stages, including contract negotiations, contract drafting, due diligence, and complex hurdles such as zoning, contamination, land use and taxation matters. When disputes arise, we work to achieve equitable, cost-effective solutions that meet our clients’ goals.

A. Jeanne Grove, Co-Chair of the Real Estate Practice Group and Managing Partner of the Sonoma office has nearly two decades of experience litigating and resolving HOA disputes. Most recently, Ms. Grove was featured as an HOA legal expert in the Daily 360 Journal and other news media outlets to address the Surfside tragedy and its impact on HOAs nationwide. She has also been

at the forefront of discussions regarding California’s newest laws, SB-9 and SB-10, which are poised to dramatically expand development of multi-unit properties across the state.

Ms. Grove’s practice includes real estate and business litigation, including HOA and co-ownership issues, purchase/sale disputes and nondisclosure claims, and boundary, title, development, and construction matters. This full spectrum of real estate legal experience serves HOAs well, as they face a myriad of different real estate issues in the governance of their properties and their members. Based on her deep litigation experience, Ms. Grove regularly counsels HOAs on how to avoid conflicts, by managing their day-to-day operations and compliance matters. The Real Estate Practice Group co-chaired by Ms. Grove also offers 40+ years of experience representing developers and HOAs with condominium conversions, subdivision projects, and CC&Rs.

ECHO journal | DECEMBER 2022 21
The KDV Law team applies their diverse backgrounds to reach creative and effective solutions based on the unique circumstances of each of their clients.
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FRANCISCO & WINE COUNTRY A. Jeanne Grove, Esq. Co-Chair of the Real Estate Practice Group and Managing Partner of the Sonoma office

The Value of Echo Endures as We Celebrate Its 50th Anniversary

After 35 years of practicing law with California common interest developments, I am grateful to Echo for the advocacy, education, and support it has provided to me, volunteer board members, and many other professionals working with homeowners associations.

As we have navigated changes in our industry, Echo has remained a constant source of support and advocacy and has acted as a phenomenal connector of all those engaged in helping our volunteer board members to be the best they can be.

I was fortunate to be part of Echo’s Legal Resource Panel (LRP), which provided a forum for attorneys guiding HOAs to brainstorm strategies for situations they grappled with in the uncertainty of this developing area of law. This forum kept us informed and facilitated the sharing of our collective wisdom. This sharing occurred long before there were Continuing Education of the Bar books on common interest developments (CIDs), let alone law seminars on the topic. Several Echo members, including Berding & Weil, James O. Devereaux, and John Garvic, then of Bergerson & Garvic, appeared as amici curiae in the Nahrstedt decision, which was one of the most significant CID cases decided by the California Supreme Court.

The longtime LRP chair, Mark Wleklinski, made sure the LRP members were kept up to date with recent decisions involving CIDs, changes in the law, and related topics such as insurance coverage, attorney’s fee awards, and legal trends.

More recently, Echo has offered an Attorney Roundtable, a new forum for lawyers in both Southern and Northern California to come together to discuss a current topic and then share “what’s on my desk” to brainstorm issues. Our ability to work together as general counsel to CID boards is a tremendous benefit to the associations represented by the LRP members.

Echo’s legislative committee worked hard to convince legislators that the many efforts to amend the Davis-Stirling Act placed unrealistic burdens on volunteers, who were legally charged with managing multimillion-dollar corporations. If not for the hard work of the committee, under the enduring leadership of Sandra Bonato and John Garvic, the work of our volunteer board members would be much more difficult.

As we have navigated changes in our industry, Echo has remained a constant source of support and advocacy and has acted as a phenomenal connector of all those engaged in helping our volunteer board members to be the best they can be. Thank you, Echo, and happy 50th anniversary!

Wanden P. Treanor served as general counsel to boards of directors for common interest developments for 35 years. She has qualified as an expert witness in the standard of care of board members, served as a court-appointed receiver, and presented at numerous seminars on the roles and responsibilities of boards of directors of nonprofits, as well as public boards. She is a publicly elected member of the College of Marin Board of Trustees and was a long-term Echo board member.

22 DECEMBER 2022 | ECHO journal


Community Legal Advisors provides guidance to HOA board of directors helping them to navigate the complex legal landscape surrounding homeowner association law.

Our general counsel work encompasses the following:

• Architectural Matters

• Alternative Dispute Resolution (ADR) and Informal Dispute Resolution (IDR)

• Board Resolutions

• Corporate Matters

• Contract Preparation and Review

• Elections and Recalls

• Enforcement of CC&Rs and Rules

• Legal Opinions

Call or email us today to learn how we can successfully serve your community.

Community Legal Advisors provides legal services to homeowners associations throughout San Diego, Orange County, and the Inland and Coachella Valleys.

Members of our legal team have served as association managers, created residential and commercial community associations on behalf of developers, negotiated terms and conditions of CC&Rs with the California Department of Real Estate, advised the State Legislature regarding the new legislation, taught industry education courses, advised community associations in their daily operations and litigated conflicts between associations and their vendors, insurers and members.

We provide guidance to HOA board of directors helping them to navigate the complex legal landscape surrounding homeowner association law.

The proverbial “ounce of prevention” can save hundreds of thousands of dollars of “cure.” We so completely believe this, that we have implemented a policy of free telephone calls for clients who enter a retainer agreement with our firm. We want our clients to “make a quick call” to confirm that an action they are about to undertake is consistent with the association’s governing documents and California law.

ECHO journal | DECEMBER 2022 23
Legal Advisors Inc.
provide the highest quality assistance, service and representation using the diverse and extensive background experience of our legal team.
“We wanted to thank you so much for how you handled our case. We were both very impressed with your demeanor, tactics and execution.
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Echo Professional Services Panel (PSP)

The panel is open to Echo professional service provider members and meets quarterly, in-person for lunch, learning, and industry networking.

Next Meeting Date: March 1, 2023

Under renewed direction, the panel is looking to grow. Echo members who are professional service providers serving the HOA industry are encouraged to join.

Please contact David Zepponi at for more information about becoming a member of the panel.

24 DECEMBER 2022 | ECHO journal
Oldest Running Resource Panel Begins Again!


The Best Representation for Your Most Important Asset

Celebrating 40 years of practice, The Miller Law Firm continues to be California’s construction defect authority and leading resource for Bay Area homeowners, Boards of Directors, and community management.

We have dedicated the last four decades to representing California homeowners associations, protecting the rights and interests of urban, mid-rise, high-rise, and mixed-use associations with construction defect claims. We help communities rebuild their homes and restore their investments by skillfully guiding Boards of Directors in meeting their fiduciary duties, pursuing recoveries against builders’ insurance policies, and reconstructing communities statewide.

“Having a firm that literally wrote the book on construction defect claims, with current experience against the very same builder, was extremely beneficial to our community. The Miller Law Firm kept the board and our owners informed while the claim was pending. That was important to us as a community and eased the burden on the board.”

– Peninsula HOA Board of Directors

Request your free copy of the newly released 3rd edition of: Home and Condo Defects: A Consumer Guide to Faulty Construction, written to aid and assist homeowners, board members and HOA management companies in the SB 800 claims process.

Rachel M. Miller, Esq.

595 Pacific Ave., Fourth Floor San Francisco, CA 94133 415-437-1800 | 800-403-3332



New Professional Service Providers

Maria C. Kao at Briscoe, Ivester & Bazel, LLP serves as corporate counsel, enforcement litigator and board member defense counsel. All are necessary and should be an accessible resource to board members and their association’s managing agents. When an association needs to understand its governing documents, aggressively pursue violations, or even defend against baseless claims, Ms. Kao would be the one to call. Not many other corporate counsel attorneys handle his/her/ their own litigation and as such, boards get the benefit of receiving advice from someone with trial tested experience.

Large- and small-scale projects seek out this firm for its attentive, responsive and expert advice. Outside of the day-to-day legal support to associations, this firm also has specializing attorneys to help associations with their land use and title issues. This firm has unparalleled knowledge of the law concerning governmental regulations (e.g., Coastal Act, California Environmental Quality Act, Clean Water Act, Subdivision Map Act) and title (local, state, federal). These areas often collide with the operations of associations and associations can benefit from lawyers who have litigated such issues before the Supreme Court of California and even the Supreme Court of the United States.

Maria C. Kao, Esq. (415) 402-2712 |

Green Glove Heroes solves your trash, recycling & contamination

problems so you don’t have to. We help Property managers and homeowners save time & resources with customized, white-glove trash, recycling & decontamination services to deliver the best property experience & reputation with higher ROI.

Green Glove Heroes is your team of proactive, servicefocused experts in trash management, recycling, and decontamination.

We are veteran-owned and led by industry experts. Our team of experienced, full-time employees ensures you provide tenants with a clean and green community experience. Our superpower is to ensure any issues become invisible. We are always looking towards the future to ensure you have the most appropriate solutions because everything from regulations to technology is constantly changing and evolving.

TOTAL TRASH™ includes:

1. Sunday through Friday Trash Management: We are onsite six days a week ensuring your property is clean and organized daily.

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4. One truckload of bulk item removal weekly at no additional cost to you (approximately 3 yards).

5. Managing trash hauler relationship.

6. Sweeping enclosures daily.

7. Daily proof-of-service photos through your Green Glove customer portal, accessible 24/7.

Jennifer Proescher

Director of Business Development

(510) 862-6061 |

26 DECEMBER 2022 | ECHO journal

Dan Cronk is the Founder & President of Deck and Balcony Inspections, Inc. Dan has over forty years of experience in the construction industry. Today, Dan operates as a certified structural inspector and general contractor specializing in helping California HOA’s comply with Senate Bill 326. Call today to request a free quote: (916) 238-0618

Dan Cronk Founder & President (916) 238-0618

BTC Bob Tedrick Construction Inc. is a General Contractor specializing in multi-family homes, proudly serving the homeowner associations and apartment communities of the San Francisco Bay Area. We are licensed in CA, (#923594 B/C33), and specialize in HOA and apartment reconstruction, repairs and SB-326/SB-721 inspections and certification.


Siding and trim, decay repair, stairwell, handrail, elevated walkway renovations, decks and balcony sagging correction.

WATERPROOFING Installs a variety of waterproof membranes for decks and other walking surfaces as well as envelope waterproofing.


ADA compliance projects, carport renovations, wood and steel fencing projects, repair and replacement of retaining walls, and arbor and trellis structure installation for multi-family homes.


As construction defect consultants, BTC offers destructive testing, building inspection, board member consultation, expert witness testimony documentation, analysis of construction defects, preparation of expert reports, cost estimating, and reconstruction planning.


Experts in forensic leak investigations for multi-family homes and water intrusion repair specialist.


We are experts in exterior painting ensuring all HOA and apartment painting projects run smoothly.

Char Tedrick Head of Business Development (925) 454-0358 |

ECHO journal | DECEMBER 2022 27
Check Out Our Professional Service Provider Online Directory! Quick and easy access to more than 250 industry providers who support HOAs and Echo. Visit and click on Professional Directory QUICK & EASY RESOURCE FOR HOA BOARDS & HOMEOWNERS

Keys to Maximizing Critical Relationships with Association Professionals

The relationships that a board of directors of a common interest development has with the professionals that advise the board is critical. Often, with the press of work and family obligations, it is easy to let the communication with legal counsel go through the community manager. While it is reasonable to delegate some of the board’s responsibilities to the manager, lack of direct communication between the board and its attorney can cause problems. Think about each delegation and ask, “Is it in the best interests of the association?”

The Act

The Davis-Stirling Act (Civil Code Section 4000 et. seq., “Act”) went into effect in 1985. In the years following enactment of the new statutory scheme, lawyers did their best to interpret the Act. And the Act grew. Legal professionals and board members had to keep up with the Act’s proclivity for expanding and reinventing itself. Amendments to the Act often placed more burdens on already overburdened pools of volunteer board members.

Initially, there was little legal precedent to guide attorneys in advising board members. There were only a few law partnerships or solo practitioners who had working knowledge of the Act and this emerging area of law. At the same time, construction of housing units governed by the Act increased dramatically. The number of issues needing the assistance of competent legal counsel grew. An “industry” developed almost overnight.

Types of Lawyers

This industry developed around a newly coined term: “common interest development” (CID).

The role of general counsel emerged. These attorneys are predominantly transactional. They are the ones who advise about updating and interpreting the governing documents, review construction and big-ticket or high-liability contracts, and draft disclosure documents.

Litigation counsel may bring enforcement actions, breach of contract, collection, and any affirmative claims the association may have, including

28 DECEMBER 2022 | ECHO journal

construction defect claims. Litigation counsel and general counsel may be one and the same attorney and/or law firm.

Often, special counsel is engaged for issues requiring unique legal competencies, such as zoning or probate and trust claims. Few attorneys or law firms can competently cover all the areas of law affecting associations. General counsel may recommend another attorney (without losing their underlying relationship with the association) who could more effectively and economically handle a given matter. This is often in an association’s best interest.

Initial Uncertainty

At the end of the last century, the lack of precedent to guide board members and legal counsel created tremendous uncertainty. With the risk of having to pay the prevailing party’s attorney’s fees, associations were reluctant to bring enforcement actions, for fear they would lose. A great example is Bernardo Villas Management Corp. v. Black, (1987)

190 Cal.App.3d 153. The Bernardo Villa’s recorded declaration of covenants and restrictions included language found in most CC&Rs at the time. The Bernardo CC&Rs stated, “No truck, camper, trailer, boat of any kind or other form of recreational vehicle shall be parked on the [Bernardo] Villas 6 project, except temporarily and solely for the purposes of loading and unloading, without the prior approval of the Architectural Committee.” This case was litigated long before today’s omnipresent SUVs and pickup trucks.

An owner purchased a truck for personal use and parked it in the owners’ restricted use common area carport. The association levied fines of more than $2,000 for violating the CC&Rs and sued to enjoin the owner from parking the truck in the carport and to collect the fines.

The association lost, and the appellate court stated: “Here, the subject of controversy was a new, clean pickup truck which the defendants used solely for personal transportation primarily to and from

ECHO journal | DECEMBER 2022 29
Continued on page 30

Continued from page 29

work. The court’s impression was that the pickup with its camper shell was the equivalent of a station wagon. Beauty — even with cars — is in the eye of the beholder. In this world where those persons concerned with upwardly mobile status frequently drive off-road vehicles including well-appointed jeeps or pickup trucks, we think the trial court’s ruling is eminently sensible. The pickup truck, often both

deciding when or whether to enforce a particular provision in any declaration. Legal counsel worked closely with board members in deciding whether to pursue claims. Trust was essential, as the risks were high.

Whether It’s a Manager or an Attorney — It’s the Relationship!

The “industry” was launched by small management firms, many of them women-owned. Many started out as bookkeeping services and morphed into property management. Now, larger regional and national management firms are taking over the “higher-touch” small management firms. The services provided and the comprehensiveness of what can be offered by the larger corporations may well be superior in terms of data collection, tracking information, and developed standards in the industry, but it may come at a cost.

comfortable and economical, has become for many the equivalent of the convertible in earlier years. As times change, cultural perceptions — including society’s acceptance of certain types of vehicles — also change. The pickup truck no longer has a pejorative connotation. One person’s Bronco II is another’s Rolls-Royce.”

The Bernardo Villas decision was a deterrent for associations seeking to enforce CC&Rs, due to the legal expense required and the heavy burden to prevail, as well as the financial risks inherent in losing a case.

The uncertainty continued until Nahrstedt v. Lakeside Village Condominium Assoc. (1994) 8 Cal.4th 361, when the California Supreme Court ruled that CC&Rs are presumed to be reasonable unless they violate public policy, are arbitrary, or the burdens outweigh the benefits of enforcement. By shifting the burden to the owner to prove unreasonableness, it was possible for board members and their legal counsel to pursue reasonable interpretations of governing documents without the fear of being second-guessed by judges.

Prior to the Nahrstedt decision, it was difficult to weigh the risk of enforcement of any provision. Common sense and reasonable minds prevailed in

Volunteer board members are hardworking owners with very little time to devote to all that must be done under the mandates of the Act. They are legally required to make sure the manager follows through on all that needs to be done between meetings. No one can assume everything will get done. It is better to use the phone, rather than just emailing. However, calls should be scheduled to avoid “playing phone tag.” All managers can be assumed to be overcommitted. They need to be given a headsup on what will be discussed so they have time to prepare for the call and the meeting.

Technology can be embraced for its ease of use, ability to connect the community, and convenient storage and retrieval of data and communications, but associations mustn’t lose sight of person-toperson connections for building relationships and trust.

The relationship with the board and its community manager must be built on trust. The same is true of the board’s relationship with the association’s legal counsel.

Who Does the Attorney Represent?

California Rules of Professional Conduct, Rule 1.13, provides in pertinent part:

Rule 1.13 Organization as Client

(a) A lawyer employed or retained by an organization shall conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized directors,

30 DECEMBER 2022 | ECHO journal
Keys to Maximizing Critical Relationships with Association Professionals
The relationship with the board and its community manager must be built on trust. The same is true of the board’s relationship with the association’s legal counsel.

officers, employees, members, shareholders, or other constituents overseeing the engagement.

The individual attorney or law firm representing a homeowners association represents the nonprofit mutual benefit corporation or unincorporated association. Board members are represented when they are acting in the interests of the association. The attorney’s representation typically includes the community manager in their role as agent for the board, unless there is a conflict.

Who Communicates with the Association’s Attorney?

It is crucial for the board to have a trusting, candid relationship with its attorney(s). To support this relationship, it helps if the full board meets in person (or via teleconference) at least annually with the association’s attorney(s).

While it may be prudent to ask the manager to relay information from the attorney to the board or to relay questions from the board to the attorney, this must be considered before delegating. Does having the manager make the call or email to the attorney increase the potential for miscommunication? The

manager should not be delegated as the main contact between the client (the board) and the attorney.

If a board is lucky enough to work with a competent manager for several years, it may be okay to have the manager work directly with the association’s lawyer on routine issues. However, with the changes in management companies and individual managers moving from firm to firm, boards risk missing information and losing connection with their attorney.

Typically, the board president is the liaison with the association’s attorney(s). Boards should expressly designate a board liaison who will commit to taking on the role, and expectations should be defined. The liaison should keep all board members informed of communications with the attorney(s).

When communicating with the lawyer, the liaison should commit to expressing the board’s view, as opposed to personal opinions or desired outcomes; this will help avoid conflicts of interest or unilateral decision making. A special board meeting can be scheduled if needed.

It takes work to maintain an attorney-client relationship that is grounded in trust and honest

ECHO journal | DECEMBER 2022 31
Continued on page 32

communication. The board must be clear with counsel about its expectations, especially in terms of deadlines. The information needed should be defined and a specific response date provided. Everyone is busy and sometimes it requires being a squeaky wheel. If the board expects an update from the attorney, they shouldn’t wait until the day of the board meeting. Rather, they should be proactive and understand that the attorney may not be able to respond if contacted on the day of the meeting.

Problem Solving

It takes common sense and reasonable minds to work through issues. Today there is legal precedent to rely on, yet there is growing discontent and distrust in government and community association leadership. Transparent communication is required if CIDs are to be healthy and stay out of court. Trust is a key ingredient. Trust can be lost in an instant through poor communication or unintentional missteps.

Associations need to be thoughtful and consistent in deciding when or whether to enforce a particular rule or restriction. They should make genuine efforts at internal dispute resolution. It is best to compromise early rather than capitulate and end up with the same result after spending thousands of dollars on legal fees. It could spare the association irreparable damage to neighborly relations and trust.

Unfortunately, there are difficult owners whose conduct requires resorting to the legal system. Everything possible should be done to solve issues within the community itself. When that fails, the board should work closely with the association’s attorney to achieve the best result for their community.

Wanden P. Treanor served as general counsel to boards of directors for common interest developments for 35 years. She has qualified as an expert witness in the standard of care of board members, served as a court-appointed receiver, and presented at numerous seminars on the roles and responsibilities of boards of directors of nonprofits, as well as public boards. She is a publicly elected member of the College of Marin Board of Trustees and was a long-term Echo board member.

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Nevertheless, it was a solution for restarting housing and the economy of California in a difficult environment. Hence, the strategy to leverage the California Condominium Act and the various existing code was launched and the anemic industry began to grow.

Early in the 1970s, many industry professionals realized that for this experiment to be successful, an emphasis would need to be on the details and nuances of tens of thousands of uniquely managed communities and the issues confronting them. Having no situational context for how the law would be applied, professionals in the field were often left guessing about their decisions and expressed great frustration, since their only recourse may have been to duke it out in the courts. But decisions were made and the era of the “wild, wild West,” as many called it, gradually ended as case after case and challenge after challenge was resolved to establish reliable conduct and structure for common interest developments.

A few years after the incorporation of Echo in 1973, many new laws were written or modified, such as parts of the California Condominium Act, which ultimately resulted in the promulgation of the Davis-Stirling Common Interest Development Act. On January 1, 1986, the “Act,” as it is known in the industry, became the leading body of law governing the HOA industry today. Echo’s founding members envisioned the importance of their involvement with the formation of HOA law, and it proved to be of


enormous value to the legislature and to the Echo membership.

In 2023 we will celebrate the 50 years of work Echo has done as a nonprofit association for the good of all people concerned about the development of community in homeowners associations. It is a proud heritage and one to be embraced and lauded. We have moved a great distance in time away from the “wild, wild West” days of the industry in the 1970s. We endured and have succeeded in creating a new and efficient model to build communities and make housing affordable and available in our great state. So, in 2023 we celebrate 50 years of laying a solid foundation for a grand experiment in community living. Echo is a place to convene and discuss continuous improvement of our industry. The mission of Echo remains the

pillar of our existence: to foster “a better quality of life in community associations through education, advocacy, and networking.” In these words, you can hear that the Echo mission is founded in hope, is alive today, and is entrusted to us by you, our loyal members. Come celebrate the Echo vision with us in 2023 and join the resounding voice of an industry that echoes with truth and influence throughout the state.

ECHO journal | DECEMBER 2022 33 CEO’s Message Continued from page 6
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A Framework for Developing Reasonable

Drafting reasonable and enforceable operating rules can be one of the most challenging tasks for a board. If done properly, it promotes a harmonious and enjoyable community, where expectations and consequences are clearly understood and respected. If rules are unreasonable and/or unclear and are not consistently and equitably enforced, resentment, distrust and discontent can build up in a community, not to mention legal fees.

Rules should reflect the needs and best interests of a community at a given point in time. While boards have significant discretion in the content of rules, there is a legal framework that must be respected. The purpose of this article is to help boards develop rules within that legal framework.

Is This a Rule?

The first question a board should answer before it starts down the road of implementing a new restriction, requirement, or procedure is whether it is an operating rule, a provision of the declaration of covenants, conditions, and restrictions (CC&Rs), or a provision of the corporation’s bylaws. Rules (sometimes called “Rules & Regulations,” “HOA Rules,” “House Rules,” or simply “Rules”) are called “operating rules” by the Davis-Stirling Act and are defined as “a regulation adopted by the board that applies generally to the management and operation of the common interest development or the conduct of the business and affairs of the association” (Civ. Code § 4340). Rules are distinct from CC&Rs and

34 DECEMBER 2022 | ECHO journal

Reasonable and Enforceable Operating Rules

from corporate bylaws, both procedurally and substantively, and the distinctions commonly confound boards.

“Operating rules” include a rule or regulation that applies to one of the following:

• Use of the common area (e.g., guest parking, installation of solar panels, use by pets) or of an exclusive-use common area (e.g., condominium balcony)

• Use of a lot or condominium

• Aesthetic or architectural standards that govern alteration of a lot or condominium

• Member discipline, including any schedule of monetary fines and penalties for violation of the governing documents and any procedure for

the imposition of penalties

• Resolution of assessment disputes and delinquent assessment payment plans

• Election procedures

• Dispute resolution procedures

• Clarification or definition of a term in the CC&Rs

Whether characterized as a regulation, procedure, policy, standard, guideline, or rule, they are “operating rules.” And while some operating rules that do not require the 28-day member review process are characterized in the industry as policies, procedures, or some other similar term, they are still operating rules (e.g., FAQs restating certain provisions in the CC&Rs).

ECHO journal | DECEMBER 2022 35
Continued on page 36

A Framework for Developing Reasonable and Enforceable Operating Rules

Per Civil Code § 4355(b), the following do not fall under the definition of an operating rule, and the board is free to take these actions without providing members with a 28-day comment period:

• A decision regarding maintenance of the common area

• A decision on a specific matter that is not intended to apply generally (e.g., granting a member a variance)

• A decision setting the amount of a regular or special assessment

• A rule change that is required by law, if the board has no discretion as to the substantive effect of the rule change

• Issuance of a document that merely repeats existing law or the governing documents

Does the Board Have Rulemaking Authority?

The next question a board should ask themselves when starting down the road of drafting rules is “Does the board have the authority to adopt the rule?” To adopt rules, a board

must have rulemaking authority conferred by law, the CC&Rs, articles of incorporation, or bylaws (“governing documents”). (Civ. Code § 4350(b).) Some older developments are silent

of the buildings or landscaping, protects the quiet enjoyment of residents, or protects property values. The why should not be to punish a particular member that the board finds annoying or hostile. The why should not be to generate revenue through the imposition of monetary fines, and the why should never be to serve the self-interest of a few board members.

Is the Rule Reasonable?

on rulemaking authority, so their CC&Rs need to be amended to add authorizing language. Fortunately, governing documents in newer developments all have rulemaking authority, since the Department of Real Estate requires it. (Cal. Code Regs, tit. 10, § 2792.21(a)(7).) The board can adopt rules once rulemaking authority has been established. Absent rulemaking authority in the governing documents, associations still have statutory authority to adopt rules for specific matters, such as election rules (Civ. Code § 5105), architectural rules (Civ. Code § 4765), internal dispute resolution policies (Civ. Code § 5905), and collection policies (Civ. Code § 5730).

Start with “Why”

Following the advice of leadership expert Simon Sinek, the board should be clear about why they are wanting to implement the rules. The why should be because it promotes harmony among neighbors, enhances the aesthetic

To be enforceable in court, a rule must be reasonable. The term reasonable should be understood to mean the definition found in Black’s Law Dictionary, which includes “fair, proper, just, moderate, suitable under the circumstances... not immoderate or excessive... rational, honest, equitable, fair, suitable.”

Courts have held that a rule is unreasonable if it is (1) arbitrary, (2) imposes burdens on the property that substantially outweigh the restriction’s benefits to the development’s residents, or (3) violates a fundamental public policy. Whether a rule is reasonable is to be determined not by reference to facts that are specific to the objecting homeowner but by reference to the community as a whole.

Is the Rule Consistent with the Hierarchy of the Law and Governing Documents?

Homeowners associations have a number of documents controlling the development. Not all documents are created equal – some have more authority than others. CC&Rs are like California’s constitution: in the same way that only voters can amend the constitution, only members can

36 DECEMBER 2022 | ECHO journal
Continued from page 35
To avoid disputes, a member should be able to comply with the rule without making assumptions or speculating about what is expected of them.

amend the CC&Rs. Rules are like state laws. Just as legislators in Sacramento can pass laws consistent with the constitution, boards may adopt rules consistent with the CC&Rs. Since operating rules are at the bottom of that hierarchy, the board needs to ensure that the rule they are considering is consistent with and does not contradict those authorities. As provided for in Civil Code § 4205 (effective January 1, 2014) the hierarchy of authority is as follows:

• Law (unless the statute defers to the governing documents)

• CC&Rs

• Articles of incorporation

• Bylaws

• Operating rules

The exception to rules being in last place is that election rules, which are a type of operating rule, may contain provisions, such as qualifications for serving on the board of directors, that supersede bylaws and CC&Rs.

Is the Rule Specific and Clear?

It is important that the restriction be drafted with enough specificity and clarity that members understand what is expected of them and can confidently comply with the rule. Similarly, specificity and clarity are important so that boards can fairly and consistently enforce violations of a restriction. A rule that states that “yards should be kept attractive” without any objective standards leaves too much room for misunderstandings, assumptions, and arbitrary and inconsistent enforcement. To avoid disputes, a member should be able to comply with the rule

You’re not alone.

ECHO journal | DECEMBER 2022 37
Sign Up for the Board Members Club Here Join Echo’s Exclusive Board Members Club.
Open to current or recent HOA board members only
Opportunities to meet other board members
Share ideas and information
Learn peer-to-peer It’s included with your Echo membership! Continued on page 38

A Framework for Developing Reasonable and Enforceable Operating Rules

without making assumptions or speculating about what is expected of them.

Formatting rules so that they are easy to read is important. Also, applying a numbering convention to rules allows the association and members to easily refer to specific rules when addressing violations.

Is the Rule Illegally Discriminatory?

Boards must ensure that rules do not violate fair housing laws (e.g., Americans with Disabilities Act, Federal Fair Housing Act, California Fair Employment and Housing Act, and California Unruh Civil Rights Act). Boards must take special care that rules that treat children differently than other residents are not illegally discriminatory. Even rules that are intended to protect children in pools have been found to be illegal by the Department of Fair Employment and Housing.

Has the Association Adopted Required Rules?

In addition to rules that a board may want to adopt, there are rules that an association is required by statute to adopt and publish to the membership, including the following:

• Written procedures for reviewing architectural applications (Civ. Code § 4765)

• Associations must adopt and annually distribute their collection policies (Civ. Code § 5310)

• Dispute resolution policy: Associations must provide a “fair, reasonable and expeditious” procedure for

resolving disputes between the association and its members without charging a fee to the member participating in the process (Civ. Code § 5910)

fine of $20 per violation is not going to motivate a member who makes $100 a night renting a condominium. Conversely, associations imposing monetary fines in a community of members

• All associations are required to adopt election rules that comply with Civil Code § 5105

• Associations must adopt and distribute to each member an annual policy statement describing the association’s discipline policy, if any, including any schedule of penalties for violations of the governing documents (Civ. Code § 5310(a)(8))

Will the Penalty Schedule Be Effective?

The purpose of a penalty schedule for violations of rules is not to punish or shame members; rather, it is to motivate them to comply with the rules. A board should consider the financial status of its members and set appropriate monetary fines. For example, given the amount of income that a short-term rental can generate for a member, a

on fixed incomes should be sensitive to their limited financial resources.

The penalty schedule should also address continuing violations, so that a daily fee is imposed for every day that the violation is not abated. The penalty schedule can include nonmonetary penalties such as losing privileges to common area facilities.

How Will Rules Be Enforced?

For associations that are professionally managed, many managers walk the development on a regular basis, noting violations such as landscaping and maintenance issues. Members can report violations to the manager and then the manager can try to independently verify the violation. For self-managed developments, the board should create a committee to consistently conduct routine inspections. Establishing consistent and routine inspections

38 DECEMBER 2022 | ECHO journal
The community will be better served by spending resources on proactive legal consultations than on legal fees and insurance claims triggered by homeowners challenging unreasonable and unenforceable rules.
Continued from page 37

is important to be able to rebut the most common response from homeowners cited with a violation: disparate enforcement – “You’re picking on me!” If the board inspects the property only in response to complaints, it will be difficult to prove that they equally enforce rules against all members. The second most common reaction to a violation is denial – “I didn’t do it!” The committee should also be tasked with obtaining evidence such as photographs, video recordings, or advertisements for short-term rentals.

The board has the duty to investigate complaints made by residents about neighbors. For self-managed associations, the board may want to establish a committee of one or two directors to conduct these investigations. The most common complaints in condominiums are about noise. The association should interview other neighbors to see if they also are disturbed by the noise and should attempt to obtain recordings and/or sound level readings of the offending noise.

Be Willing to Amend Proposed Rules

If, after the proposed rules are sent out to the membership for the 28-day comment period, the board receives significant negative feedback, it should be willing to amend the rules before adopting them. Enforcement of unpopular rules is timeconsuming, affects the morale of the board and the community as a whole, and can escalate to a legal challenge, thus doing more harm than good to the community. Also, if an unpopular rule is adopted, members may force the association to hold

an election to reverse the rule. Members owning 5% or more of the separate interests may call a special meeting of the members to reverse a rule change. (Civ. Code § 4365.) The written request must be delivered to the association within 30 days after the members of the association are notified of the rule change. (Civ. Code § 4365(b).) The rule change may be reversed by the affirmative vote of a majority of the voters represented and voting at a duly held meeting at which a quorum is present, unless the CC&Rs or bylaws require a greater percentage. (Civ. Code § 4365(d).) A rule change reversed under this section may not be readopted for one year after the date of the vote reversing the rule change. Nothing in this section precludes the board from adopting a different rule on the same subject as the rule change that has been reversed.

Given the impact that rules have on a community, boards need to be prepared to invest time and resources into drafting them. This includes consulting with legal counsel to ensure that they are enforceable. The community will be better served by spending resources on proactive legal consultations than on legal fees and insurance claims triggered by homeowners challenging unreasonable and unenforceable rules.

Karen St. Onge is an experienced HOA attorney with Adams | Stirling, PLC serving the San Francisco Bay Area. Karen is drawn to community association law because it touches on the personal, economic and

societal aspects of our lives as neighbors, community members and Californians.

Laura Ravazza, CCAM-PM, PCAM is a certified community association manager who has served the industry since 2004. Laura recently joined Silvercreek Association Management as their director of marketing and education. Laura has helped her client communities with varied projects including major construction work and rewriting governing documents. She has strong ties with many industry professionals and is a frequent expert speaker at industry events.

ECHO journal | DECEMBER 2022 39



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Start 2023 Right! Update Your HOA Board Information Today. HOA board members change all the time. Take a moment and check your community’s profile and make sure we have the most current and correct information for your board. Echo needs this information to continue to
your membership benefits to the right people.

In 1973, fifty years ago, a group of concerned HOA suppliers, managers, and attorneys banded together to form the Executive Council of Home Owners, ECHO. Their intent was to build a nonprofit association that represents and echoes the voice of those who live in common interest developments. The Echo founders realized that the largely unregulated HOA housing community type needed to bring people together to provide a single voice on how to organize, regulate, and manage its growth. Out of this need, the Echo founders forged its mission to improve the quality of life in HOAs through education, advocacy, and networking.

After 50 years and being the oldest association in the nation focused solely on the improving the quality of life within HOAs, Echo is ready to celebrate its mission, purpose, and accomplishments. Echo invites its members and friends to help celebrate the Echo vision by participating in its 50th anniversary year!

In this issue of the Echo Journal, long-term, recently retired Echo board member, Wanden Treanor, writes about her experience as a new attorney helping HOA board members manage through the “Wild West” years of the burgeoning industry. She portrays in her articles, the challenges facing a new “industry” in its formative years and how Echo organized influencers to construct a foundation from which common interest developments would be organized and HOAs formed.

On May 5, 2023, Echo will celebrate in grand fashion, inviting back many of its early members to share gifts of the storied past and hopes for the future. Echo is the oldest association of its kind – dedicated to homeowners and board members. It is time to celebrate the many past accomplishments of Echo and its members, and enjoy conversation, fun, and connection with members to help advance the goal of a better quality of life in HOA communities.

Strong! More event information, including sponsorship opportunities, is coming soon! Mark your calendars now!
50th Anniversary Celebration May 5, 2023 4:00 pm - 7:30 pm Pinstripes Bistro 36 Hillsdale Mall Drive San Mateo, CA
SAVE THE DATE! 50th Anniversary Celebration May 5, 2023 4:00 pm7:30 pm Pinstripes Bistro 36 Hillsdale Mall Drive San Mateo, CA
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