Echo Journal November/December 2019

COMING IN 2020

NO GRINCHES!

MELTING POTS

SB 326

Marin Educational Seminar

Protecting holiday deliveries

Cultural diversity in your HOA

Compliance with the Balcony Inspection Bill

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SERVING HOA BOARD MEMBERS & HOMEOWNERS

NOVEMBER / DECEMBER 2019

PAGE 8

Aging in Place

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ECHO BOARD OF DIRECTORS ANNOUNCEMENT

advocacy and networking.

The Echo membership welcomes the 2020 Board of Directors. At the Annual Membership Meeting held Wednesday, November 12, 2019 candidates David Levy, Rolf Crocker, Wanden Treanor and Mark Guithues were chosen to fill the four open board positions. Joining the returning board members is first-time Echo board member, Mark Guithues. Mark is an HOA attorney from Southern California. He will provide valuable insight and advice to the board as Echo considers strategies for growth in Southern California. We are excited to have him join the Echo board.

ECHO 1671 The Alameda, Suite 205 San Jose, CA 95126 408.297.3246 | info@echo-ca.org www.echo-ca.org

We also want to recognize the years of service of Treasurer, Karl Lofthouse. He will continue to be a strong supporter of Echo and we thank him for his dedication and service to the Echo mission and to its membership. Thank you Karl!

MISSION STATEMENT Fostering a better quality of life in community associations through education,

BOARD OF DIRECTORS & OFFICERS PRESIDENT

DIRECTORS

David Hughes

Jerry L. Bowles

VICE PRESIDENT Adam Haney

Rolf Crocker

TREASURER

Mark Guithues, Esq.

Karl Lofthouse

David Levy

SECRETARY

Diane Rossi

Sandra Long

Education that builds stronger communities.

Sarah Dunia John Gill, Esq.

Katrina Solomatina, Esq. Wanden Treanor, Esq.

EXECUTIVE DIRECTOR

David Zepponi MEMBER ENGAGEMENT MANAGER

Sign up online for Echo’s e-newsletter, Echo Insight!

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Hannah McAuley SALES ADMINISTRATOR

Jacqueline Price The ECHO Journal is published bi-monthly 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.

Sign up at www.echo-ca.org at the bottom of the home page.

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.

ECHO member information is never released to any outside individual or organization.

CONTENT © 2019 ECHO

© 2019 Executive Council of Homeowners (ECHO) All rights reserved. Reproduction except by written permission of ECHO is prohibited.

Education Advocacy Connection www.echo-ca.org ECHO journal | November/December 2019

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MARIN

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www.echo-ca.org

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1. Type the event link indicated above into your browser.

2. Click on the “Register” Button located at the top right.

3. In the registration window click “Enter Promo Code” at the top left.

4. Enter your code and click “Apply.”

5. You should see both “Price” and “Fee” updated and reflecting the discounted price.

6. Choose the number of registrants and continue the checkout process.

4

November/December 2019 | ECHO journal

Education that builds stronger communities.

Features 8

Aging in Place

BY LORI R. STORM, CMCA, AMS, PCAM, CAMEX, CCAM

12

Protecting Holiday Gifts from Mr. Grinch

BY JAMES McBURNEY

18

Cultural Diversity Awareness in an HOA

BY JOSEPH PRICE, CMCA, CCAM, CAMEx

24

SB 326: Compliance with The Balcony Inspection Bill

BY J. SPENCER EDGETT, ESQ.

12

30 Elder Abuse in Community Associations

BY NATHAN R. McGUIRE, ESQ.

Happenings 4

Marin Educational Seminar

Executive Director’s Message: Legislative Folly – HOA Leadership in the Balance

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BY DAVID ZEPPONI

16

The Self-Managed HOA: Employee Agreement Recommendations – Part Two

BY JOHN CLIGNY, AMS, CAMEx, CCAM-HR

21

Welcome to Our New Professional Members

23

Santa Cruz Educational Seminar

27

Catch Up On the 2019-2020 Legislative Session!

29

Resource Panel Calendar

34

Echo Bookstore Offerings

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news from ECHO

EXECUTIVE DIRECTOR’S MESSAGE

Raison d’Etre – The Reason for B What a beautiful phrase, raison d’etre (reason for being). It is

Legislative Folly – HOA Leadership inconsider the Balance every board member should and collectively agree.

The phrase engenders humanity. The words roll from one’s ton ith the passage of new financial these new financial requirements takes itof a step stark business senses and adds the element humanity to th legislation in 2018 which required HOA further and tells the board what they must do to a board: planning, execution and evaluation; missio boards to meet more frequently and Strategic be financially responsible.

The legislature is saying to review transfers in detail, we find that the that GAAP is not enough in the HOA world to management.

The business realities should be reflective of com legislature, in fact, is dictating the management prevent mismanagement or malfeasance. Again, common values of individuals in the community. practices of associations. On the surface these the legislature has stepped resoundingly into the

W

seemingly simple safeguards against fraud, realm of micromanagement.

Communities are imperfect – because they are made of humans embezzlement and mistakes are putting added pressure on the board, and its volunteer directors I know using. of very few competent andBasically, capable people relating.

Humans Human living. humans bein to be diligent about daily operations. who want to be micromanaged. It is an awful being human, communities sometimes forget that managem feeling; the precursor to a failed organization. establish norms a career successful community.

In a sense, the The effect of which is to beleaguer volunteers In myfor early as a Senior Consultant with with tasks that normally should fall onthe verycommunity.

Deloitte & Touche and later as a sole practitioner, Its purpose is to establish order and elevate capable and competent management staff or I found that organizations do poorly when progress pace by take establishing norms and community managers. The whole purpose of ourandexecutives on daily management rolesconstraints to double entry accounting system and to thebenefit financial all. instead of an executive leadership role setting accounting standards board principles (GAAP) long-term vision and objectives. The responsibility is to encourage confidence in the accounting of the legislature should be to help HOAs It seems apparent that board leadership mustbuild understand an processes of a business and to provide reliable community and provide an environment for owners in order to orchestrate senseand of community information to those with an interest in the executive leadership toaflourish not be beaten and gene financial records of the association. By doing down by cumbersome regulation, whileof wisely and protect community values. The purpose a board, therefo this, executive leadership and investors (banks, protecting the individual. Let managers manage build community based on for the good of al homeowners and prospective homeowners) have and executives leadcommon – by doingvalues this a board standards by which confidence is established. can then focus on critically important strategic It takes orchestrate a community.

It takes time to know The board, rather than focusing on small things,time to planning and oversight for the community. can then focus on the larger objectives of the time to listen to the voices and build a vision reflective of com community.

Wouldn’t it be grand if the board focused on the and you will vision, be more effective asvalues a board and satisfie mission and core of themember association?

Certainly, the responsibility of the board is to be Wouldn’t be more appropriate (and fun) your reason for beingit on the board. financially prudent creating the fiduciary duty of for the board to wrestle with the future of the the board. Of course, some associations are too community rather compliance ECHO is committed to helping homeowner boards and resident small and must engage in all duties, but monthly and policing? Sacramento ing and advocacy – this is our “raison d’etre”. meetings for a 10-unit community seems a bit needs to understand that of an overkill. The legislative trend witnessed by Continued on page 26

Sincerely,

Sincerely,

ECHO EXECUTIVE DIRECTOR

David Zepponi Executive Director

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November/December 2019 | ECHO journal

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Aging in Place

By Lori R. Storm, CMCA, AMS, PCAM, CAMEx, CCAM

T

here are members in associations who have increasing difficulty navigating through the world. And board members may ask whether it is the association’s responsibility to provide assistance to owners. Managers may be concerned that the association is overreaching if it takes any action.

But it is important to ask some serious questions when seniors are a part of an HOA community. “What is the role of the association?” “Do changes need to be made that reflect the demographics of the population in the HOA now?” And if the answer is yes, “What types of changes are appropriate?”

How are associations affected when they have seniors in the community? As owners continue to age in place, they may have trouble staying in compliance with the CC&Rs and the rules because of the challenges of aging. Their support circle may be gone, family living far away. They may be struggling with financial challenges that prevents them from upkeep on their homes. They may be physically unable to take care of things the way they could in previous years.

Continued on page 10

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November/December 2019 | ECHO journal

Does Mr. Jones struggle to open the clubhouse door while wrestling with his walker?

Have owners stopped coming to board meetings because they don’t understand what is going on?

ECHO journal | November/December 2019

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Aging in Place Continued from page 8

As people become more frail, additional outside assistance becomes necessary, affecting rule compliance as well. Associations may consider granting variances from rules to allow these residents to continue living in the community. An association can find creative ways to enable seniors to live harmoniously in the neighborhood.

Take this example from Happy Acres HOA. Mrs. Smith stopped taking care of her front yard landscaping. The board sent a series of compliance letters to Mrs. Smith, asking her to clean up her yard.

After due process, they began fining her monthly for refusing to comply. Her yard became worse, the neighbors and the board became increasingly frustrated, and nothing changed.

Finally, after thousands of dollars in unpaid fines accumulated, someone volunteered to go over and speak to Mrs. Smith. Only then did they find out that she had mental and physical health issues and was unable to care for her landscape. The board took a step back and decided that a different approach to the problem needed to be devised. They were able to come up with a solution that satisfied the needs of the community while respecting the limitations of the owner.

Now, if an association has been in existence for

decades, and especially if it is age-restricted, it is likely to have a significant portion of residents who are seniors. In this type of community especially, the board should review whether they are taking steps to help people remain in their homes or are discouraging this.

While it is not the responsibility of the association to care for elderly residents, it is important that it looks closely at whether it provides a sense of community that enhances the experience of and is responsive to the general ownership group. In just the same way that an association would provide materials in Spanish if a significant portion of the community was Spanish-speaking, so too would the association want to ensure it is catering to the needs of its population.

Here are some practical ways to show commitment to making a community work for its residents. First, make sure that the services provided are appropriate. Here are some items that might make sense:

• Microphones and speakers at board meetings to aid those who are hard of hearing.

• Agendas and newsletters printed in large font.

• Automatic door openers at the clubhouse or someone who will act as door monitor for board meetings for people who have mobility issues such as walkers, wheelchairs or canes.

Resources

Publishing a list (in a large font, please!) of local agencies and websites that can assist seniors and their families navigate this time in their lives can be a huge step in helping folks remain independent and remain positive members of your community.

Some local agencies provide grants or assistance for seniors who need landscaping or home repairs done. Providing these resources to seniors in the community can be a much more effective approach to issue of compliance.

• Type “Area Agency on Aging” along with the name of your city into your web browser to bring up what is available to you.

• Aging.ca.gov/programs_and_services/ • Aging.ca.gov/find_services_in_my_county • Aginginplace.org

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• Encouraging neighbors to exchange house keys and emergency contacts and set up regular check ins with each other help keep the community intact.

Further consideration should be made for an association that has a large population of seniors. It can provide general accommodations to people as they age by modifying rules to allow for their changing needs.

Parking in driveways and on streets may become necessary for to allow for resident caregivers and special equipment or other deliveries, such as oxygen or groceries. People may not be able to park a second car in their garage if the space they need to enter or exit their car is extended.

Special attention should be paid to items in the common area that can cause problems for the elderly.

• Do residents have to step up a curb to access the mailbox? Maybe it is time to add a cutout or a ramp.

• Any trip hazards become magnified for people who have balance issues.

• Speeding cars can be especially problematic for people with low vision or mobility issues.

As the population ages and life expectancy continues to increase, all associations will need to address the issues surrounding an aging demographic in their HOAs. In order for communities to thrive and be successful, boards should start the discussion about what steps are appropriate for their neighborhoods and their members.

Best wishes for a holiday season filled with comfort and joy!

Season’s Greetings from the Team at Echo

Lori R. Storm, CMCA, AMS, PCAM, CAMEx, CCAM is Division Vice President of Client Development at The Management Trust.

ECHO journal | November/December 2019

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November/December 2019 | ECHO journal

y im) McBurne

By James (J

P

m o r f s t f i G y a r o te c t i n g H o l i d

S

ince holiday gifts come as both packages and checks, an association’s pre-2000 mailboxes and parcel lockers can be the “weak link in the chain” of mail custody – not only for holiday gift protection but also for yearround mail and package security. Although an association has a legal duty to reserve and disclose old mailbox replacement plans it also has a duty to protect mail and packages in its custody from theft. Whereas the Dr. Seuss classic - How the Grinch Stole Christmas! – is a light-hearted children’s book, there is nothing light-hearted about a 6 or 7-figure mail-related identity theft negligence judgments. This is especially true if the board knew of the theft potential from old common area mailboxes and did not have a plan to replace them.

What Causes Mail and Package Theft?

Although it’s hard to pin down exact causes, contributing factors could include:

• Prop 47 emptying California prisons of non-violent offenders to reduce overcrowding.

• Increasing opioid and methamphetamine addiction.

• Prop 47 reducing theft and check forgeries from $950 to $450 and from a felony to a misdemeanor.

Continued on page 14

ECHO journal | November/December 2019

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Protecting Holiday Gifts...

Key Questions to Ask

Continued from page 13

Theft Can Cause a Mail Stop Notice Aware of the increasing theft, Post Masters are becoming stricter and sometimes even threaten to stop mail and package deliveries unless old mailboxes are brought up to current USPS security specifications as this email shows: Dear …. [Actual name of Community Manager], “There is a lot of theft being reported at ….

[Address of the 138-unit East Bay HOA]. Just in recent days the following customers have contacted the Post Office that their packages are missing from the parcel lockers …. [List of 4 HOA unit numbers].

We have done what we can on our end. You need to have your l units upgraded to the new 4C mail boxes which are more secure. We have spoken in the past and I have told you that you have old [out-ofspec] mailboxes and will need to upgrade to the new 4C-STD mailboxes. If this continues we will not be able to deliver mail to unsecured mail boxes. Please call me if you have questions.”

“LET'S TALK INSURANCE, I'M JUST

Emails like the above, suggest it’s better to answer a few key questions sooner rather than later:

• Do the association’s mailboxes meet current USPS security specs?

• Are our reserves adequate? Note: Costs are typically about $250-$400 per address and sometimes as low as $200 per address for large associations.

• How big are the legal risks of not upgrading for our homeowners, the association and our community management firm?

• Is a special assessment needed?

• Will new mailboxes be a real estate selling point?

What are the Current USPS Mailbox Security Specs?

There are two currently approved USPS security specs.

1) Spec F Cluster Box Units [CBUs] replace old pedestal-mounted [on cement pads] pre-2000 NDCBUs.

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November/December 2019 | ECHO journal

2) USPS STD-4C mailboxes also replace old pedestal-mounted NDCBUs and also old frontloading vertical mailboxes or horizontal USPS STD4B mailboxes usually found in common area kiosks.

Both of these USPS specifications are the latest in security protection - and thus - the best “risk reduction” strategy for associations from negligence lawsuits. In fact, even having a plan to upgrade can be a mitigating jury factor against negligence claims since it shows that the association was proactive in reducing “foreseeable risk” of injury to homeowners.

A Negligence Judgment Can Result in a Six Figure Damages Award In California, a plaintiff may seek punitive damages “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice” Civil Code § 3294. Although simple negligence judgments can be in the 6-7 figures based on compensatory damages alone for mail-related identity theft, if gross negligence or malice under the meaning of Civil Code § 3294 can be proven, juries can also award punitive damages. However, a reasonable association should have a plan in place and execute it to avoid negligence claims altogether.

CACI 400. Negligence Essential Factual Elements [Name of plaintiff] claims that [he/she] was harmed by [name of defendant]’s negligence. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] was negligent; 2. That [name of plaintiff] was harmed; and 3. That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s harm.” [New September 2003; Revised June 2005, December 2007, December 2011]

one outgoing check, depending on how much information the potential victim has printed on the checks. The mail burglars then either make counterfeit checks with the information they find or soak the ink off checks and rewrite them. If they get enough information and a pre-approved credit card application, they can open an account using the victim’s name and their own address. Then they max out the credit cards on a line of credit the victim doesn’t even know exists. In 2018, the Federal Trade Commission (FTC) received more than 3 million identity theft and fraud reports. Mail thieves rack up tremendous debts, buying home electronics and cars, for example. And when they fail to pay the credit card bills, the perpetrator isn’t the one whose name is on the account – it’s the victim. Even though the victim isn’t at fault, the hit to his or her credit can be devastating. Victims of identity theft frequently have a hard time getting loans or being approved for credit cards because of the black marks on their credit history.

Summary Opioid addiction is currently a national problem being made worse in California by the release of non-violent ex-addicts under Prop 47 to relieve jail crowding and by raising the felony bar for theft and check forgery from $450 to $950. Since it’s well known that new addicts and ex-addicts “steal to support their habits”, old association mailboxes can be “easy pickins”, since it takes about 10 seconds to crowbar open the master door. Thus, prudent homeowners, boards and community managers should check to see where they are in mailbox replacement planning [to reduce “negligence claim risks”] and also reserve and disclose these plans to homeowners and tenants.

In addition to proving these elements, CACI 400 instructs juries to look for “foreseeability of risk and harm.” Also, homeowners associations have a “duty to exercise Due Care” under CC § 1714(a) to which “no exception should be made unless clearly supported by public policy.”

How Mail Related Identity Theft Works When mail burglars steal mail, they are looking for pieces of personal information names, addresses, phone numbers, Social Security numbers and account numbers, all of which can be found on

James (Jim) McBurney is a Project Manager for Cascade Building, Inc., a specialist in apartment and HOA mailbox upgrades that offers a detailed planning and project management service that can avoid expensive compliance risks and project implementation mistakes while maximizing real estate value for owners. Jim can be reached at 408-733-9479 or at jcmcburney@aol.com.

ECHO journal | November/December 2019

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THE SELF-MANAGED HOA

PART TWO

Employee Agreement Recommendations

S

elf-managed HOAs are diverse: From four-unit buildings in a city to thousands of units, including sub-associations, in a rural country club setting. The options for self-management are equally diverse. An HOA may choose to limit their activities to those of oversight and governance and hire a General Manager and/or award contracts or agreements to third party vendors for day-today management of operations, tasks and projects.

The self-managed HOA should have management and employee agreements and contracts as best management practices. Management agreements may be for specific management tasks such as finances and bookkeeping, common area maintenance, consulting agreements with or without dedicated “on-site” management.

If the HOA hires an employee, that employee should have a management agreement or at least a clear job description and an “at-will” employment agreement. In this two-part series, vendor agreement recommendations were addressed in Part 1 and employee agreement recommendations will be addressed in Part 2.

At some point in the process of drafting, negotiating and finalizing a management agreement, it is advisable to consult competent legal counsel to review final documents before signing and executing the agreements. The comments below are guidelines and not legal opinion but guidelines that provide some essential components and best practices for ensuring agreements are fair to both parties, accomplish the HOA’s goals and objectives, and minimize risk to the HOA if the wheels come off.

Employee agreements are a

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November/December 2019 | ECHO journal

BY JOHN CLIGNY, AMS, CAMEx, CCAM-HR

requirement when the self-managed HOA decides to recruit and direct hire its management employees. In some cases, the HOA will hire a CEO or General Manager to be responsible for the day to day operational tasks of the community, provide oversight and advise the volunteer board of directors. Often the employed manager will recruit, train and hire required personnel to meet the service level expectations of the HOA. While third-party agreements can provide some “cover” and protection for HOAs, employment agreements for direct hires put HOAs in the role of the employer, necessitating regulatory compliance with all aspects of Federal, State and local employment laws and regulations.

Darren Shaw, MCAM, MCM, PCAM – a veteran California large-scale community CEO and General Manager – identifies the following components as critical for self-managed HOA management employee agreements:

boards need to carefully consider termination clauses and severance packages to avoid expensive time-consuming employment practices lawsuits and claims, and to be respectful of the employee transition. All parties should make every effort for the transition to be a smooth one.

TERMINATION PROVISIONS BASED ON EXPIRATION OF AGREEMENT OR FAILURE TO PERFORM THAT IS CLEARLY DOCUMENTED. Employee termination for

non-performance can be tricky and a legal minefield if not addressed properly in the employment agreement. The employment agreement should lay out clearly how the board will evaluate and monitor the performance of the CEO or General Manager, how often the assessment will be conducted, and in what form it will be communicated to the employee.

The intent is to make an inherently personal relationship as professional as possible. There should be no surprises for either party to the agreement.

INDEMNIFICATION AND PROTECTION AGAINST

A MULTI-YEAR AGREEMENT WITH A FINITE TERM

LAWSUITS BROUGHT AGAINST THE HOA AND

(EXAMPLE 5 YEARS). Onsite CEOs and GMs need

LIABILITY COMPLAINTS. CEOs and General

time to learn about a new community and its nuance and to develop relationships with staff, board and committee members.

Managers implement management procedures to ensure that association and community goals and expectations of the board are meet. Inevitably, disagreements, mediation and lawsuits happen. Selfmanaged associations that direct hire must extend indemnification and protection to their executive personnel.

EDUCATIONAL AND CONFERENCE EXPENSE REIMBURSEMENT. Continuing education of

community management professionals is critical to long-term community success and enhanced manager knowledge of trends, laws and best practices that impact community well-being.

Other best practice considerations for effective employee agreements include:

ANNUAL SALARY ADJUSTMENT OBJECTIVE CRITERION

DEFINED ROLES AND RESPONSIBILITIES. Board

(LOCAL OR METROPOLITAN CPI) AND BONUS

adherence to Policy Governance standards in part clearly defining roles and responsibilities of management from board leadership.

STRUCTURE BASED ON MEASURABLE OBJECTIVES.

Management personnel are critical for the effective governance and success of the community. Salary adjustment and performance bonus criterion are a critical part of the employment agreement.

REASONABLE SEVERANCE PACKAGE UPON TERMINATION WITH OR WITHOUT CAUSE.

Unfortunately, employment terminations and separation happen. Self-managed association

MANAGEMENT AUTHORITY OVER STAFF. Direct

authority over HOA employees must be given to the CEO and/or GM to avoid board meddling with employee issues and direction. Exceptions might be for whistleblower and/or harassment laws and policies.

Continued on page 28 ECHO journal | November/December 2019

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BY JOSEPH PRICE, CMCA, CAMEx, CCAM

T

he dictionary defines ethnicity as “referring to cultural factors, including nationality, regional culture, ancestry, and language.” HOAs are virtual melting pots and perfect examples representative of community diversity.

A strong and healthy community encourages its membership to develop positive relationships and embrace their neighbors, regardless of their differences. Homeowners’ associations may see diversity in language, dress, food preparation that permeates beyond ones’ own unit, holiday traditions, religion, and cultural activities. There can be times that these differences become a focal point in your HOA. People want to be accepted for who they are and feel comfortable where they live. It’s important that their culture and heritage are recognized and accepted. They want to be accepted for, and be able to celebrate, who they are and where they come from. Unfortunately, not everyone feels the same. While some may easily embrace these differences, ignorance can drive reactions by some when they don’t know about another culture, and they may make assumptions based on misinformation or lack of understanding.

How Does This Impact an HOA? It’s incumbent upon boards of directors to govern homeowners’ associations for all who reside within the community membership. There will be times when the board is forced to address issues revolving around ethnically diverse situations. When that time comes, the board is obligated to do its due diligence to determine if there is any action that needs to be taken. This process may include research, interviewing others,

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November/December 2019 | ECHO journal

HOAs are virtual melting pots and are perfect examples representative of community diversity. determining if there is a rule or policy already in place that addresses the issue, or if a new rule would benefit the community, and ultimately determining what is in the best interest of the membership as a whole.

There are countless situations that may arise and it’s nearly impossible to plan for each and every one in advance, but it would behoove the board to proactively identify areas that could become a problem in the future and adopt rules that help the membership understand what is reasonable and acceptable.

One such potential issue surrounds holiday decorations. Whether your membership celebrates Christmas, Chinese Lunar New Year, Hanukkah, Cinco de Mayo, Ramadan or another cultural holiday, the issue is the same. That is, what is acceptable and reasonable? Can you put up decorations and lights? When is it appropriate to display the decorations and hang the lights? How long after the holiday must they be removed? The board needs to proactively establish rules and regulations that outline what type of dĂŠcor is allowed, for which (or any) holiday, and what is a reasonable length of time for them to be on display.

Nuisance complaints are another common matter that a board is faced with. There are a number of

potential nuisance complaints that may come your way. Just what constitutes a nuisance can be confusing to many. Regardless of the issue, nuisance complaints cannot be ignored. When a complaint is presented to the board, they have the obligation to investigate whether or not it is a true public (does it interfere with the health and well-being of the community) or private (does it interfering with Continued on page 20

ECHO journal | November/December 2019

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Cultural Diversity Awareness Continued from page 19

an individual’s use or enjoyment of their property) nuisance. Bear in mind that not every issue is considered a nuisance. Some may require action while others will be unjustified. In doing their due diligence, the board will come to a reasonable conclusion with regards to its legitimacy.

While there are a number of nuisances you may address within an HOA, the most common one from an ethnicity standpoint deals with strong food odors entering into other units.

Similar to smoke from one unit reaching into another, you may already have a rule in place that deals with nuisance odors overall.

If not, you may want to determine if this would be a beneficial rule for your community.

When you choose to live in close proximity to others (like in a homeowners’ association), there is bound to be some unavoidable crossing of boundaries that range from minor annoyances to serious issues – which need to be addressed quickly.

Like it or not, living in an HOA means that you have to accept that there may be times you feel annoyed or have to tolerate something because a neighbor is doing something reasonable within the confines of their property. It is up to the board to make a determination regarding legitimacy of a claim.

Depending on the age of your community, your governing documents may include language prohibiting certain individuals from living in the community. This is a frequent inclusion in documents written prior to 1968. Take a look at yours, and if this language exists, talk to your association legal counsel on how best to address. Laws have subsequently been passed that void this type of covenant. However, if you’re thinking about making other revisions to your documents, it should be a consideration to make this change at the same time.

the differences within the membership is appreciated and can be a lot of fun. Why not look at establishing a committee that focuses on planning multicultural events that are relevant to your membership.

Encourage neighbor participation on committees to get involved.

Keep lines of communication open to all. Language barriers can have an impact where those without a good grasp of English may miss important messages.

Does your community have a large percentage of its membership who speak only Spanish, Mandarin or Italian? If so, determine if it would be beneficial to have your governing documents, elections materials or budget packet translated before distribution to help bridge the communication gap. Doing so may help them from feeling isolated and encourage involvement in the community at large. Or perhaps there is someone on the management team who can attend meetings and interpret messages as needed.

Education plays a huge role in helping homeowners have a better understanding of the cultural variety within their community.

Encourage More Awareness of the Cultural Differences Within Your Community Education plays a huge role in helping homeowners have a better understanding of the cultural variety within their community. Making an effort to celebrate 20

November/December 2019 | ECHO journal

There’s No Better Example of Diversity Than a Homeowners’ Association Having an awareness of diversity signifies a welcoming and support of the uniqueness of all people regardless of their race, religious beliefs, ethnicity, age, gender, physical abilities, political beliefs or socio-economic status.

The fact that we can live in communities that are rich with diversity is truly exceptional. It’s an opportunity to learn more about different pockets of the world and make new and unexpected friends along the way. Don’t we all want to live in harmony?

It takes awareness, effort, education and partnership from all to accomplish. And ultimately, through diversity, you just may find you’re not that different after all.

Joseph Price, CMCA, CCAM, CAMEx is President of Next Step Community Management, LLC. Mr. Price previously held multiple executive level positions with some of the largest community association management companies in the country. He is a certified Community Association Manager (CCAM), and also holds the designation of Community Association Management Executive (CAMEx) from the California Association of Community Managers (CACM). He also is a Certified Manager of Community Associations (CMCA) from the Community Associations Institute (CAI). Joseph is involved in the industry and serves on the Board of Directors for CACM and is a regular speaker for industry events.

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Our commitment to our client’s and the health of their properties’ trees is evident in the passion engrained in our arborists, urban forest managers and crew members. Skillfully trained, our certified crew members and arborists are able to offer ridiculously forward-thinking solutions to better serve you and your communities. A Plus services East, South and North Bay Communities as well as the Peninsula, Sacramento, Reno and Orange County. We hope to serve you and your community soon.

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Hopkins & Carley, a premier Silicon Valley law firm, represents California homeowners’ associations and counsels members and boards on compliance with association, board, and member duties under the Davis-Stirling Common Interest Development Act as well as other state and federal laws; analyzes fiduciary duty, free speech, discrimination, parking, and insurance issues; helps clients address construction needs; and handles CC&Rs and architectural enforcement matters, assists clients facing political challenges, financing large capital improvements,

or other projects requiring membership or judicial approval on matters relating to day-to-day operations of your condominium association. Please contact us for any of your Association-related needs. Ms. Solomatina currently serves on the Board of Echo.

Katrina E. Solomatina, Esq. Direct: 408.299.1376 | Mobile: 408.966.6593 ksolomatina@hopkinscarley.com hopkinscarley.com

Founded in 1996, ProTec Building Services has grown to 400+ employees and nine regional offices throughout Southern California and Southern Nevada. From day one, we have provided maintenance, repair, construction and inspection services to Community Managers and the HOAs they serve for one reason – “To Improve Quality of Life.”

We have worked to perfect our service offerings and streamline the community maintenance process by implementing our Preventive Maintenance Programs that more than 1,000 HOAs have utilized over the past two decades. As we continue to expand into new markets, these programs have remained at the core of our business as they have been proven to save HOAs time and money, as well as ensuring the longest possible lifespan of each common area component.

Together we will not only “Improve Quality of Life” for you but the whole community at large.

Andy Henley ahenley@ProTec.com | (858) 569-1080 www.ProTec.com Continued on page 22

Find all of ECHO’s Professional Members Online. Visit the Professional’s Directory at www.echo-ca.org ECHO journal | November/December 2019

21

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Continued from page 21

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November/December 2019 | ECHO journal

At Tri Counties Bank, our unique brand of Service With Solutions® provides a breadth of financial services, business knowledge and personalized problem solving. It’s a “come to you” style of full-service relationship banking built to last for years. With branches throughout Northern and Central California, we’re dedicated to improving the financial success and well-being of the communities we serve.

Whether you are a property management company or a community association, our customized financial solutions are designed to help you better manage payments, improve efficiency and promote healthy growth. Your dedicated Business Relationship Manager, along with a team of specialists, will structure a custom package specifically tailored to meet your current and future business goals.

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1. Type the event link indicated above into your browser.

2. Click on the “Register” Button located at the top right.

3. In the registration window click “Enter Promo Code” at the top left.

4. Enter your code and click “Apply.”

5. You should see both “Price” and “Fee” updated and reflecting the discounted price.

6. Choose the number of registrants and continue the checkout process.

Education that builds stronger communities.

ECHO journal | November/December 2019

23

BY J. SPENCER EDGETT, ESQ.

SB 326: Compliance with The Balcony Inspection Bill The impact of these new requirements will be less for associations that are prepared and start planning and budgeting now.

SB 326

was introduced in response to the 2015 Berkeley balcony collapse that killed six people and severely injured seven more. The intent of the law is to prevent future tragedies by requiring the following:

24

• Associations (with 3 or more units) must retain a licensed structural engineer or architect to perform a ‘reasonably competent and diligent’ inspection of exterior elevated elements, defined as load bearing components more than 6 ft above the ground with a walking surface (i.e., decks, balconies, walkways, stairways and their railings) supported in whole or substantially by wood or wood-based products,

November/December 2019 | ECHO journal

and their associated waterproofing systems on a recurring basis (once every 9 years).

• The first inspection must be completed by January 1, 2025 (except for buildings with permit applications submitted on or after January 1, 2020 in which case the first inspection must be completed within six years following the issuance of the certificate of occupancy.)

• The inspection must consist of a random and ‘statistically significant sample’ as that term is defined in the statute (see, discussion below.)

• The inspector must submit a report to the board providing specified information about the

physical condition and useful life of the elements inspected and any recommendations for repair or replacement.

• If the inspector determines that an exterior elevated element poses an immediate threat to safety of the occupants, the report must be provided to the local enforcement agency and the association is required to take immediate preventative measures.

• Local enforcement agencies have the ability to recover enforcement costs associated with these requirements.

The Scope and Cost of the Inspection The cost of the inspection

will in large part be a function of the scope of the inspection, i.e., how many components need to be inspected? The statute does not provide a simple answer to this question. Rather, the statue requires a random and ‘statistically significant sample’ of each type of component be inspected.

The statute defines ‘statistically significant sample’ as follows: “Statistically significant sample” means a sufficient number of units inspected to provide 95 percent confidence that the results from the sample are reflective of the whole, with a margin of error of no greater than plus or minus 5 percent.

Most laypeople will struggle trying to interpret and implement a testing protocol based on the foregoing. More problematic, even a statistician may have trouble trying to determine how to implement the testing procedure based on this language.

Anthony Hayter, PhD, a statistics professor at the University of Denver and former Chair of the Department of Statistics offers the following analysis: “In the field of statistics, we use random sampling to answer a question of interest about a population when it is too expensive or otherwise impractical to examine each and every element in the population. Using techniques of statistical inference, the information obtained from the sample can be used as a basis for an extrapolation to the entire population. There are some questions, such as whether a balcony or an aircraft is safe in which using random sampling and extrapolation is not appropriate because any risk to life or safety is not acceptable.

However, purely for purposes of complying with the new statutory requirements, statistical probability analysis could be used in the following way: If a housing complex contains a total of 100 balconies, for example, then an inspector could randomly select 39 of these balconies and determine that all 39 are safe.

It would then be possible to make the probability statement that at least 95 out of all 100 balconies are safe with the required 95% confidence level. Of course, this presents the problem that there could be up to 5 balconies out of the remaining uninspected 61 balconies that are unsafe, but the Association would be in compliance, and no further inspections would be mandated by the statute.

Note that this analysis is based on ‘hypergeometric distribution’ and assumes that the inspector designates an inspected balcony as being either ‘safe’ or ‘unsafe’, as the statistical analysis becomes more complex if the safety level is designated on a more detailed scale with different degrees of safety.”

Putting aside the difficulty in determining the number of components that require inspection, from a practical standpoint, if an inspector finds that even a single balcony from the random sample inspection is deemed unsafe, the Board may have a fiduciary duty at that point to inspect all balconies in order to satisfy its obligation to protect homeowners and their guests from injury or death.

Budgeting for Inspections

inspections every nine years, Association’s should consider more frequent inspections over shorter periods of time. If an association with 100 balconies must inspect 39 balconies over nine years, consideration should be given to inspecting, for example, 13 balconies every three years. This will allow for better planning and budgeting in addition to potential cost savings by combining the inspections with each reserve study.

Recommended Steps to Prepare for Inspections Associations with components requiring inspection should start planning now so this future expense can be incorporated into the reserve budget. The following are suggested steps that Associations can take to ensure they are prepared to comply with the statutory requirements: STEP 1 Retain a licensed architect or engineer that is qualified and willing to perform the inspections; STEP 2 Develop an inventory of each type of component and group them together, i.e., 15 ‘Type A’ decks and 10 ‘Type B’ decks, etc.; Continued on page 26

Although the statute requires ECHO journal | November/December 2019

25

SB 326: Compliance with The Balcony Inspection Bill Continued from page 25

STEP 3 Determine the number

of each component that will need to be inspected (this will require a statistical analysis as outlined above unless the Association has a relatively small number of components to inspect in which case a determination could be made to inspect 100% of the components); STEP 4 Estimate the cost of the inspection (obtain a bid from the inspector); STEP 5 Include a line item in the reserve budget based on the Association’s desired approach to the inspections (i.e., 1/3 every 3 years or all components every 9 years).

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a competent construction defect attorney to possibly assist with the initial inspection. This is important because if problems are identified it may be possible to pursue a claim for deficient construction and require the developer to implement, or pay for, repairs. The Association does not want to do anything that could jeopardize the claim and competent counsel can provide such protection as well as ensure the statutory requirements are met.

Conclusion The requirements of SB 326 are designed to ensure the safety of individuals and avoid a reoccurrence of a tragedy similar to the Berkeley balcony collapse.

Ultimately, although compliance may seem burdensome, the reality is that Associations should already be conducting these types of inspections to ensure such components are safe and being maintained. Associations that are not conducting such inspections are not only risking the potential safety of owners and their guests but may be exposed to potential liability in the event of a catastrophic failure. The impact of these new requirements will be less for associations that are prepared and start planning and budgeting now.

J. Spencer Edgett, Esq. is a partner with Chapman & Intrieri, LLP and has represented community associations for more than 15 years both as general counsel and in pursuing claims against developers and contractors for construction defects. Mr. Edgett worked closely with Senator Jerry Hill’s office on SB 326, specifically pertaining to the aspect invalidating ‘poison pill’ anti-construction defect litigation provisions in governing documents. Mr. Edgett also testified in support of SB326 before the Senate Housing Committee.

November/December 2019 | ECHO journal

Executive Director’s Message Continued from page 6

good people, very good people serve on HOA boards and that overly restrictive and dictatorial statutes don’t help communities retain their most talented leadership.

In fact, a continued focus on minutiae drives highly competent and talented homeowners away from volunteer leadership.

I’ve seen many amazing people who have taken up the responsibility of leadership in their communities and they do so with such wonderful success. I fear these leaders will be pushed beyond reason by unwitting legislative intent and step away from HOA leadership. I am concerned that this unfettered reality will result in a lack of competent leadership, as the best leaders resign and those considering leadership roles choose to stay away.

Legislative Member: Please don’t chase them away with laws and regulations that do little to enhance our communities and only add frustration to an increasing load of menial tasks and obscure processes.

We need to attract leadership and retain the competency of existing leaders, but from this vantage, we are only succeeding in frustrating sitting boards and discouraging the recruitment of new board members to lead our communities. We can – and should – do better.

It’s a Wrap: The First Half of the 2019-2020 Legislative Session Is Over For the most up-to-date information, visit the HOA Advocacy section at the ECHO website: www.echo-ca.org/hoa-advocacy

The California legislature and Governor have completed their work for 2019. With the exception of those bills that may carry over into 2020, the remaining legislation has been signed, vetoed, or failed passage. Learn the final disposition of each bill below, and find out how it may affect your community.

the rules of an association to permit association employees or contractors to serve as inspectors of election. Allows members to sue over violations of bill provisions in superior court.

SB 326 AUTHOR: Hill SUBJECT: Inspection of Elevated Components

Current Legislation

STATUS: Signed by Governor.

AB 670

POSITION: Watch

AUTHOR: Friedman

SUMMARY: Requires the association to cause a

SUBJECT: Accessory Dwelling Units

reasonably competent and diligent visual inspection of the load-bearing components and associated waterproofing systems to determine whether the exterior elevated elements are in a generally safe condition and performing in compliance with specified standards. Requires the inspector to issue a report, and the association to take immediate action if the exterior elevated element poses an immediate threat to the safety of the occupants.

STATUS: Signed by Governor.

POSITION: Watch SUMMARY: Would void provisions in common

interest development governing documents that effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use that meets the minimum standards established for those units. However, the bill would permit reasonable restrictions that do not unreasonably increase the cost to construct, or effectively prohibit the construction of these units.

SB 434 AUTHOR: Archuleta SUBJECT: Managing Agent: Production of Records STATUS: In Senate Inactive File.

SB 323

POSITION: Watch

AUTHOR: Wieckowski

SUMMARY: Requires a managing agent whose

SUBJECT: Elections: Felons, Inspectors, Email Disclosure STATUS: Signed by Governor.

POSITION: Oppose SUMMARY: Requires an association to disqualify a person from nomination as a candidate for not being a member of a common interest development at the time of nomination or for being convicted of certain felonies. Authorizes an association to disqualify a person from being nominated or from serving on the board for specified reasons, including the failure to pay regular assessments. Defines email addresses as association records for the membership list. Allows

management agreement has been terminated to produce client property and client records within a specified period of time pursuant to a written request by a common interest development association, except as specified.

SB 652 AUTHOR: Allen SUBJECT: Right to Display Religious Items STATUS: Signed by Governor.

POSITION: Watch Continued on page 28

ECHO journal | November/December 2019

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2019-2020 Legislative Session Continued from page 27

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4/12/17 8:39 AM

The Self-Managed HOA: Employee Agreement Recommendations – Part Two Continued from page 17

SIMPLE COURTESIES. Help with the transition. Consider how the

board can make the transition work best. Reimbursing for relocation costs, depending on negotiated requirements, is a good way to start the relationship off on the right foot.

Self-managed HOAs need to carefully consider the best way to effectively manage their associations. Although board of directors have the fiduciary duty of care for their associations, most CC&Rs allows boards to “delegate” or “assign” critical management tasks to vendors and employees. Whether the association chooses a thirdparty vendor or employs its own management team, it likely will be the result of careful consideration of the board’s operational goals, community needs, budgetary constraints, compliance requirements and risk analysis. In this two-part series we explored both vendor and employee guidelines and recommendations. Both articles emphasize that experts, including legal counsel, be called in to review the document before signing.

Working with people is an essential part of business, particularly in the world of HOA management. The contracts and agreements made between the board and its employees and vendors should reflect as clearly as possible the expectations of the relationship and the procedure and consequences for the failure to execute as expected. It takes time and thought to design a well-constructed agreement – but that’s executive management and that’s the job of the board.

John Cligny, CAMEx, CCAM-HR, AMS, is the co-founder of Association Consulting Group and is a veteran portfolio manager and industry thought leader. John advises and educates HOA clients and management companies on a wide range of community management topics and provides expert testimony in litigation.

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November/December 2019 | ECHO journal

SUMMARY: Prohibits the governing documents of a common interest development from prohibiting the display of religious items, as defined, on the entry door of a common interest development member’s separate interest. The law makes an exception during the time that maintenance, repair, or replacement work is performed.

SB 754 AUTHOR: Moorlach SUBJECT: Election by Acclamation STATUS: Signed by Governor.

POSITION: Support SUMMARY: Requires, when the

number of director nominees at the close of the nomination period is not more than the number of vacant director positions on the board, that the director nominees be considered elected by acclamation if the association includes 6,000 or more units, and the board complies with specified notice requirements, and the board disqualifies a candidate for specified reasons.

What Do You Think?

Read more about HOA legislation on our website or visit our Facebook page and join the discussion.

On the web: echo-ca.org/hoaadvocacy On Facebook: facebook.com/ EchoCalifornia

ECHO EVENT CALENDAR

RESOURCE PANEL CALENDAR ECHO Resource Panels are offered in a casual atmosphere to enable managers, professionals and board members to hear about important topics presented by experts in the industry, and share experiences and issues. The meetings are open to all ECHO members and those interested in learning about ECHO. If you have any general questions please contact events@echo-ca.org

Register Online at www.echo-ca.org/events We ask that you register online to provide Echo with an accurate headcount.

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DATE

DATE Thursday

PANEL NAME

ORGANIZER

ORGANIZERS REGISTRATION LINK PANEL NAME North Bay Resource Panel Stephanie Charles & Diane Kay

January 9, 2020 northbaypanel@echo-ca.org Cassidy Rajkovich bit.ly/mapanel-aug2019 Maintenance Panel 11:45 a.m. – 1:00 p.m.

Wednesday maintenancepanel@echo-ca.org August 7 Thursday Wine Country Resource Panel Pam Marsh & Sarah Dunia 11:45 am to 1:00 pm

January 16, 2020

winecountrypanel@echo-ca.org p.m. Bay Panel bit.ly/ebpanel-aug2019 Friday 11:45 a.m. – 1:00 East Ann Marquis-Fisher August 9 eastbaypanel@echo-ca.org Wednesday Legal Resource Panel Mark Wleklinski 11:45 am – 1:00 pm January 22, 2020 legalpanel@echo-ca.org *Professional Service Providers Only 6:30 p.m. – 9:00 p.m. bit.ly/ccpanel-aug2019 Laura Yelland Tuesday Central Coast Panel centralcoastpanel@echo-ca.org August 20 Maintenance Resource Panel Cassidy Rajkovich Wednesday 11:00 am – 12:30 pm *Professional Service Providers Only maintenancepanel@echo-ca.org February 2, 2020 11:30 a.m.

– 1:00 p.m.

Wednesday Stephanie Charles, & Diane Kay bit.ly/nbpanel-sep2019 North Bay Panel September 9 northbaypanel@echo-ca.org Friday East Bay Resource Panel Cynthia Heskett 11:30 am to 1:00 pm February 14, 2020 eastbaypanel@echo-ca.org 11:45 a.m. – 1:00 p.m. bit.ly/wcpanel-sep2019 Pam Marsh & Sarah Dunia Wine Country Panel Thursday winecountrypanel@echo-ca.org September 19 11:45 am to 1:00 pm Maintenance Panel Wednesday October 2 11:45 am to 1:00 pm

Cassidy Rajkovich maintenancepanel@echo-ca.org

bit.ly/mapanel-oct2019

bit.ly/ebpanel-oct2019 Friday East Bay Prices willPanel increase at the door!Ann Marquis-Fisher October 11 eastbaypanel@echo-ca.org Registering online and paying by credit card is the fastest way to ensure your spot is re11:45 am – 1:00 pm REGISTER

ONLINE & SAVE!

served. If you are paying by check, please continue with online registration and select “Pay

by Check” so we can get an accurate headcount. Checks must be payable to ECHO and received two weeks prior to the event date.

Echo Mailing Address: 1671 The Alameda, Ste. 205, San Jose, CA 95126

Prices will increase at the door! Registering online and paying by credit card is the fastest way to ensure your spot is reserved. If you are paying by check, please continue with online registration and select “Pay by Check” so we can get an accurate headcount. Checks must be payable to ECHO and received two weeks prior to the event date.

ECHO Mailing Address: 1671 The Alameda, Ste. 205, San Jose, CA 95126 ECHO journal | November/December 2019

29

ELDER AB in Community Ass 30

November/December 2019 | ECHO journal

BUSE sociations

BY NATHAN R. MCGUIRE, ESQ.

Concerns of “elder abuse” occasionally come up in community associations.

And while elder abuse is generally more prevalent in society than most people realize, the legal doctrines related to elder abuse are often misunderstood in the context of community associations and the term is often misused.

Comments or concerns related to elderly residents can arise in a variety of circumstances:

• Concern over the physical or mental well-being of an elderly resident.

Sometimes this can come up as a result of violations of the CC&Rs (nuisance, hoarding, care of pets, upkeep of property, etc.).

• Concern over an elderly resident being financially swindled or taken advantage of by a caretaker or other person with a close relationship to the resident.

Continued on page 32

ECHO journal | November/December 2019

31

Community associations should be vigilant in the short-term – and methodical in developing strategies for the long-term – in order to both protect and respect California’s elderly population.

Elder Abuse in Community Associations Continued from page 30

(i.e., grandchildren using the community pool, enforcing age requirements).

However, not every concern or issue related to elderly residents in our community associations is “elder abuse” in the legal sense. In developing legal protections, the California legislature recognized that elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted, and that few civil cases are brought in connection with this abuse due to problems of proof, court delays, and lack of incentives to prosecute. In California, elder abuse can be criminal or civil, or both, and applies to individuals 65 and older as well as other dependent adults. Criminal elder abuse occurs when a person willfully causes or permits an elder to suffer or inflicts unjustifiable physical pain or mental suffering on the elder.

Civil elder abuse is defined

• A resident claiming discrimination based on age.

• A resident requesting an accommodation due to age-related disability.

• The operation of residential care facilities for the elderly in a residential property in the community (i.e., a housing arrangement for up to 6 persons 60 years of age and older exclusive of staff, as permitted under California law).

• Claims based on the disproportional impact of decisions on elderly residents (i.e., assessment increases hurting fixedincome seniors).

• Governance issues specifically related to the operation of senior-only community associations

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November/December 2019 | ECHO journal

under the Elder Abuse and Dependent Adult Civil Protection Act as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting physical harm or pain or mental suffering,” or “deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Each of these categorical terms is defined (see California Welfare Code Sections 15610.05-63) and many clarified in judicial decisions. Cases can be brought by the elder or by the elder’s family. The most common forms of elder abuse are physical abuse, neglect and financial abuse.

Physical abuse includes assault (with or without a deadly weapon), battery, unreasonable physical restraint, prolonged or continual deprivation of food or water, use of physical/ chemical restraint or psychotropic medication for punishment or for any unauthorized period or purpose, sexual assault/battery,

rape, incest, etc. Neglect includes the negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care a reasonable person in a like position would exercise.

Financial abuse occurs when a person takes, secretes, appropriates, obtains, or retains (or assists in such actions), the real or personal property of an elder or dependent adult by “undue influence” or for “wrongful use” or “with intent to defraud.”

Individuals acting in certain capacities, such as health care practitioners, have a duty to report suspected elder abuse.

Others with knowledge or a reasonable suspicion of elder abuse are not mandated, but should report it to the adult protective services or local law enforcement.

There are a number of things community associations can do now to minimize problems down the road:

• Obtain emergency contact information for family members of residents and owners. Have open communication with elderly residents now so it will be easier to communicate if a situation arises.

• Review and revise rules/ policies for consistency with legal requirements and to ensure there are no impermissible age restrictions, which are more common in older governing documents.

• Consider adopting rules/policies related to the prevention of

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discrimination based on age, when assistance may be provided to elderly residents, and when concerns should be reported to local or state agencies.

• Consider adopting policies and procedures for responding to disability accommodation requests.

• Consider providing educational resources and outreach programs for elderly residents and training for management/ staff.

• Governing Document Interpretation • Governing Document Revisions • CC&R and Rules Enforcement

elderly residents more and more frequently. Most homeowners now intend to age in place, with fewer electing to live with family members or in an assisted living facility. Age-restricted community associations are also becoming more and more popular.

Community associations should be vigilant in the short-term – and methodical in developing strategies for the long-term – in order to both protect and respect California’s elderly population.

Nathan R. McGuire, Esq. is a partner with Adams | Stirling, PLC, in charge of the firm’s Northern California offices and currently serving as Chair of the Community Associations Institute’s California Legislative Action Committee (CAI-CLAC).

As California’s population ages, community associations will encounter issues related to ECHO journal | November/December 2019

33

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November/December 2019 | ECHO journal

2019 2019

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step-by-stepguide guidetotothe therules rulesfor formeetings meetings AAstep-by-step yourassociation, association,the thecurrent currentand andofficial official ofofyour manualadopted adoptedby bymost mostorganizations organizationstotogovgovmanual erntheir theirmeetings. meetings.This Thisguide guidewill willprovide providemany many ern meetingprocedures proceduresnot notcovered coveredby bythe theassociaassociameeting tionbylaws bylawsororother othergoverning governingdocuments. documents. tion

LEADING WITH EXCEPTIONAL LEGAL TALENT EXTENSIVE RESOURCES AND DECADES OF EXPERIENCE ` Comprehensive Representation for Community Associations ` Complementary Construction Defect Investigation ` Construction Law and Dispute Resolution ` Business and Real Estate Law Our law professionals are highly experienced community association and construction law attorneys, and bring a thorough understanding of our clients’ issues and creative solutions for their legal needs.

In addition to dealing with the legal problems of condominium and homeowners associations, we also defend associations and their boards of directors against third party claims for personal injury and property loss as well as directors’ and officers’ liability, and we assist our clients in maximizing insurance claims for damages to buildings and common area.

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WALNUT CREEK S AN F RANCIS CO LOS ANGELES COS TA MES A S AN DIEGO 800.838.2090 BERDINGWEIL.C O M