17 minute read
At Echo We Care
During the coronavirus isolation, you are not alone. Echo is working hard to build resources to assist you and your HOA during this difficult time.
Members can log onto the Echo website and register for FREE Zoom video conferencing for HOA board meetings. Not an Echo member? Join today and have quick access to this easyto-use service that meets the meeting requirements in the California Civil Code.
Look for solutions through the Echo We Care campaign. It was created because at Echo We Care about you!
BY SANDRA LONG, CCAM, PCAM
Common interest developments throughout the world are facing the escalating coronavirus crisis and resulting disease, COVID-19.
The threat of this pandemic has reached into
communities in almost every county. Developments
and updates from the Centers of Disease Control
(CDC), the World Health Organization (WHO),
California and local jurisdictions are occurring more
frequently with guidelines, recommendations and
now restrictions. Social-distancing has become a
commonplace term and people are becoming more
aware of the absolute need to limit contact and
potential exposures, whether at schools, community
centers, stores, gyms, businesses, churches, event
venues or other locations that have people in close
proximity. This is rapidly becoming a medical,
financial and social problem as the world adjusts to
this new, and hopefully, temporary way of life.
To that end, it is critically important to consider
the impact that COVID-19 will have on our common
interest developments as it relates to board
meetings, common area facilities and interactions
between neighbors. Many homeowner associations
have already been faced with the dilemma of how
to hold board meetings under these conditions and
to decide whether to keep common area amenities
open during this current health crisis. Continued on page 10
Sign up for FREE online board meetings through Echo. See page 7 for more information
BOARD MEETINGS/ASSOCIATION MEETINGS: Volunteer boards of directors for homeowners associations across California are faced with the predicament of how to handle the regular reoccurring meetings where association business is conducted. There are several options for consideration. Some homeowner associations may not have business to attend to and can postpone/reschedule their board meetings to a time several months out allowing the current crisis to dissipate. If this is not an option, the board of directors may want to consider holding the meeting via video conference or teleconference to minimize risk of exposure. (See page 7 for more information on this option). There are a few things that should be factored in if this is being Community Associations in Crisis Continued from page 9
considered. The teleconference and/or videoconference for any board meeting, special meeting, town hall meeting and/ or annual membership meeting must be readily available and completely accessible to the membership. Everyone should be able to hear the discussion and decisions of the volunteer board of directors. The dial/login information for the meeting to be held via teleconference or videoconference should be clearly posted with the meeting notice/ agenda. While it is preferred to have a physical location at or near to the association that homeowners can attend in person, this may not be a viable option considering the the protective guidelines for COVID-19. This temporary change should not be abused by the board of directors.
All other requirements for a board meeting still apply including: written meeting minutes and an Open Forum during which homeowners may speak to address the board. Inperson board meetings should resume as soon as possible, taking into consideration recommendations from the CDC and other governmental agencies in relation to groups of people having close contact.
CONSTRUCTION PROJECTS: For associations that have construction and/or other large projects currently in play, or in the very near future, it may be beneficial for the board of directors to appoint an Executive Committee to handle specific business between meetings. This Executive Committee needs to be formed through proper board vote at a duly scheduled and noticed meeting, with very clear guidelines, for the purpose
of the committee and clarifying any limitations. The executive committee must consist of fewer board members than constitutes a quorum. An example of a situation that would benefit from this would be a board of directors that appoints an Executive Committee to review construction project change orders presented between board meetings to allow uninterrupted business and project continuation without unnecessary delays. The decisions made by any Executive Committee outside of a board meeting must be ratified by a quorum of the board of directors at the next scheduled board meeting and noted in the official meeting minutes.
COMMON AREA: Homeowners Associations should take action without delay as it relates to sanitization for the common area. This includes providing hand sanitizing and disinfectant wipe stations in accessible locations including near common area doors, elevators, gyms, clubhouses, and trash rooms. Also, it is recommended that Associations consider increasing janitorial services for common areas in the short term to keep “high-touch” areas disinfected as often as possible.
COMMON AREA AMENITIES: It may be necessary for Board of Directors to temporarily close common area “elective” amenities such as community gyms, clubhouses, swimming pools/spas, social rooms, etc., and to cancel/ reschedule Association-sponsored social events and other group activities. This is to help reduce potential exposure to illness and to assist with embracing the recommended social distancing. Elevators, common area doors, trash rooms, lobbies, mailrooms, and parking areas should not be closed as these are required for access/operations. In terms of particularly challenging time, there may be individual requests or even a broader request for the association to take care of the membership and to protect the community. Boards of
limiting the use of common areas during this time, the restriction needs to be for everyone or for no one. It is not equitable to provide access for some and not for others as this would invite liability to the association.
LIMITATIONS ON ACCESS: Some Associations may have considered the idea of limiting guests and visitors to the common areas in an effort to keep the community safe. It may be reasonable to limit visitor in the common area for the short term and to hold all deliveries in the front lobby if there is a process in place and space to accommodate this.
It is very important to note that under no circumstances should a board of directors, or individual board member, question a homeowner, resident or guest as to their health or medical status. Such questioning is completely outside of the association’s jurisdiction and represents a substantial risk of litigation due to laws and regulations regarding medical privacy.
During this unknown and directors may feel that they are in a quandary on this as they naturally want to be able to help their community as much as possible. However, we do need to be mindful that the association does not take on responsibility for individual owners. Individual homeowners need to have personal responsibility.
Boards of directors for common interest developments should lean on experts, including legal counsel, management, insurance agents, Echo and other industry professionals for questions regarding recommended actions or suspension(s) of operations.
How the Association Can Help the Community
Boards could perhaps consider a bit of leniency in the short-term on assessment late fees, fines for non-compliance for non-urgent or non-life/safety violations, etc. in an effort to alleviate some of the challenges that the current situation presents for individual
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members; be they fiscal, medical, or both. The key is for the board of directors to consistently apply rules, or waive them, across the entire membership and not pick and choose which to apply to whom. For example, it may be appropriate for an association to waive late fees on the monthly assessment for the next couple of months, as this current crisis has potential for wide reaching impact on individual health and finances. Another example would be to postpone any disciplinary hearings until such time that the CDC, or other governmental agencies, determine it is practical for gatherings/close contact. In the interim, it would be reasonable for an association to continue to send courtesy notices out for violations, or potential violations, on quiet hours, for example, and other infractions that cannot wait.
Communication is key for a common interest development, more so in a time of uncertainty. Associations should communicate early and often on any new developments in terms of board meeting postponement, changes in the schedule or location, access, temporary amenity closures, and/ or increased janitorial services for the common areas. People want to feel included and be in the know of what is going on. It is recommended to keep communication positive and community-focused.
Now, more than ever, homeowners in associations throughout the world and especially in California, need to work together, be mindful of each other, be a little more tolerant, a lot more patient, and be respectful of each other in the coming weeks. It is a time to be neighborly and to come
together as communities. It is a very important time for boards of directors to focus on the business at hand and to adjust operations as needed for the current conditions.
Together, the crisis will be overcome. There is a choice for boards to lead communities and engage homeowners by being thoughtful and respectful. By doing this, boards will build a greater sense of community in their HOA and instill a lasting confidence in the ability to be resourceful and successful on the other side of this crisis.
Sandra Long, CCAM, PCAM is Vice President of Operations at Associa Northern California. Sandra is an experienced industry professional, a frequent contributor at industry events and a volunteer member of the Echo Board of Directors.
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Coronavirus & Community Associations
From the Community Association Attorneys at SwedelsonGottlieb
With the quickly evolving concerns over coronavirus,
SwedelsonGottlieb wants to
assure boards that the health and
safety of HOA communities is
paramount to the firm.
The State of California
is in a state of emergency.
Understandably, this causes panic and anxiety for residents and people want to know more about the coronavirus, and specifically
Coronavirus19 CommunityAssociation Guidebook
3-12-2020
what community associations should be doing. The important thing to do now is remain calm, informed and follow the advice of public health departments and the CDC.
To help address the need for information and explain duties and responsibilities for community associations, SwedelsonGottlieb has prepared a guidebook for board and association use. Please feel free to share this guidebook because SwedelsonGottlieb believes providing the information to as many people as possible is of the utmost importance.
It is important for all to remain vigilant about our own health and wellness, and to be patient and thoughtful of our neighbors, community and those affected by the coronavirus outbreak and those suffering from colds, flu and other illnesses.
This issue may cause concern to many but the value of distributing good information to those potentially affected is tantamount to slowing the spread of the virus. SwedlesonGottlieb offers its deepest sympathies to those who have already been affected.
When an owner requests an Internal Dispute Resolution (IDR) meeting with the board, the request is often met with animosity or concern. Usually, this is because the board has had prior run-ins with the owner and/or the board is concerned about a lawsuit. These reactions are understandable, however, if the board uses this as an opportunity and the IDR process is properly implemented, it can be an effective tool to resolve disputes.
BY SANDRA L. GOTTLIEB, ESQ., CCAL
Actions The Board Should Take for Successful IDR
INTERNAL DISPUTE RESOLUTION
A Powerful Problem-Solving Tool for HOA Boards
BY TIM FLANAGAN, ESQ.
IDR 101
IDR is a dispute resolution process where an owner and the association meet informally to discuss their dispute in an effort to resolve the dispute. The IDR process is outlined in Civil Code §§ 5900-5920. The process requires that: 1) The association must accept and participate in an owner’s request for IDR (but the owner can refuse the association’s request). 2) The association must designate a director to participate in the process. 3) The parties must meet promptly in a mutually convenient place and time to explain their positions; and 4) The parties must meet in good faith.
Participate in Good Faith
The board should participate and act on the IDR request in good faith. It may be difficult to participate in good faith, if the owner is a well-known complainer or trouble maker in the community. That being said, IDR will not be successful if there is not a good faith effort, so attempt to wipe the slate clean and go in with an open mind. One way to get over this hump is to select a board member who does not have any negative feelings towards the owner, or who has the least amount of animosity or “history” with the owner. Good faith listening and problem solving is a very powerful tool. The owner will recognize a good faith effort, and if the owner is serious about resolving the dispute, then the owner is much more likely to reciprocate making resolution more possible. Continued on page 16
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Internal Dispute Resolution... Continued from page 15
Only One Board Member Should Participate
No matter how your board has handled past IDR requests, the Civil Code requires that the board appoint only one board member to participate in the IDR. Additionally, limiting the meeting to one board member and one owner makes the meeting less formal (as intended) and more likely to resolve the dispute (also as intended).
In spite of the law and benefits, some boards do not want to participate in IDR because they do not want to relinquish control or they may be concerned about what the designated director might say or do. The way to handle these concerns is to have the whole board meet before the IDR, review the written request by the owner, discuss the matter and any potential resolution, and identify the board member best suited to participate in the IDR. Once the board member is selected, the board may or may not give that member authority to resolve the dispute. The board may instruct the participating board member to report back with any proposed settlement for the entire board to decide upon. Or, if the IDR concerns a monetary dispute, the board can give the member the authority to settle up to a certain dollar amount. If the board handles the IDR in this manner, the concerns about bad resolutions will be reduced and the number of disputes that will be resolved will increase.
Use a Facilitator
Having an owner or manager facilitate the IDR discussions will help drive a resolution to the dispute. The facilitator’s role is to take notes, follow up on issues that were brought up and try to focus in on matters where compromise seems likely. The facilitator should not take sides, and can also be the board member participant – if the board member participant is adept at handling these types of matters.
At the outset of the IDR, the board member participant should explain that the parties are there to focus on the dispute and try in good faith to find a resolution. It is best practice to have the owner start by explaining their position and ideas for resolution. The board member should then explain the association’s position and ideas for resolution. Finally, the two sides
should engage in a dialogue to see whether compromises can be made to resolve the dispute.
In some cases, the board should consider requesting that its attorney participate in the IDR to assist the board member in explaining the association’s legal position. The association should let the owner know in advance that its counsel will be present so that the owner can invite his or her attorney to attend. If the association does not have its counsel present, and the owner brings an attorney, it is recommended that the IDR be postponed so that the association can have its attorney present. It is a good practice for the association to ask the owner, in advance, whether they plan to bring an attorney.
Act Promptly
While the Civil Code does not define what “promptly” means, good practice would dictate that this means not waiting to respond for more than a week, or worse, until the next board meeting. The longer the board waits to respond to the owner’s request, the more likely the owner will become frustrated, which can hinder a resolution.
The board can help with this step by adopting an IDR request form. The form should list blank “issues” to be discussed at the IDR so that the owner must think about the dispute and the issues. This will help streamline IDR, but also potentially eliminate red herring issues. The form should also have the owner indicate whether he or she will be bringing an attorney or a third party to the IDR meeting in order to avoid surprise.
Making IDR Successful
The board should take every IDR request seriously, discuss the issue beforehand and enter into the process with an open mind. Also, the board member selected to represent the HOA must be familiar with all of the facts of the dispute, and, if authorized, be ready to enter into a settlement with the owner.
The bottom line is, if used
Tim Flanagan, Esq. is a Partner at the law firm of Berding | Weil, LLP in the San Diego office. Tim’s area of practice focuses on HOA corporate counsel and enforcement litigation. Outside of the office, Tim spends his time with his wife and two boys and a lot of time on the baseball diamond where he manages his son’s Little League team.
