An Environmentally Responsible Move-Out List

Televisions—Just a few weeks ago, Best Buy announced that it’s dropping the $10 fee for recycling old TVs. Televisions and other electronic waste can’t be tossed in landfills, but not all e-waste recycling is actually environmentally safe. Some e-waste is shipped to developing countries where impoverished people break down and sort it without any environmental or personal safeguards, so I was very relieved to learn what happens to electronics after you drop them off at Best Buy.You’re not the only one making wish lists this time of year. Here’s one for your residents to check twice to make sure their next move-out is environmentally responsible. Or, should a tenant leave you with a move-out mess, this handy list will help you navigate the detritus responsibly. Thank goodness for security deposits.

1. Tires—Televisions, tires and mattresses all seem to be commonly dumped items in parks, alleys and on curbs. It’s no wonder: No matter where you live, these items usually cost a few bucks to properly dispose of them. The upside is that used tires can still be very useful. They may lose their treads, but they are nothing if not durable, which makes them excellent candidates for reuse in basketball courts, shoes and even as new tires.
2. Toxic household chemicals—Most homes contain something that the state or federal government considers toxic. These items – for obvious reasons – can’t be thrown away in the normal trash or flushed down the drain. Check local regulations to see which items are considered toxic in your area. Your state or local municipality web site can direct you to recycling locations.
3. Mattresses—Despite the fact that thousands of old mattresses get dumped in landfills every year, there are still very few recycling facilities available for this ubiquitous behemoth. If you have an unwanted mattress, first research local regulations about donations or disposal. Research 1800recycling or earth911 to find out if you are lucky enough to have a recycling option near you.
4. Household goods—From silverware and bedding to books and clothing, used household goods that are still in good working condition can go on to live another lifetime with someone else. Box up reusable items and deliver to a local charity. Or, if you have larger items like a dresser, table or sofa, request a pickup. These types of donations are often tax deductible, so be sure to ask for a receipt.

I used to think that placing unwanted household items on the curb with a “for free” sign was a resourceful way to keep things moving, but I’ve seen my fair share of soggy sofas left on the street. Unless you live in an area without rain, mist, fog, snow, floods or dogs who enjoy marking while on a walk, put your reusable household furniture to better use by connecting directly with a non-profit.

Finally, after the move, tenants can break down those moving boxes and put them out for the next recycling pickup. Or, if the boxes are still in good shape, they can be offered on craigslist.org to save a stranger the trouble of collecting their own.

What’s the oddest thing a tenant ever left behind?

SQUATTER'S RIGHTS
TO KEYS?

QUESTION: A longtime owner in her 80s recently died. Her son, a now and again resident and ne’er-do-well, is living in the unit. No maintenance fees have been paid since her death almost 6 months ago. The son is not on the deed and no probate has been filed. We are about to re-key the building. We will be giving keys to each owner of record. Our manager said we must give this squatter a key even though he has provided us with no documentation whatsoever because he is a “resident.” Do we have to give him a key?

ANSWER: Your manager is right. Both under the Davis-Stirling Act and landlord-tenant laws, an association cannot block access to the unit. As provided in the Davis-Stirling Act:

Except as otherwise provided in law, an order of the court..., an association may not deny an owner or occupant physical access to his or her separate interest, either by restricting access through the common areas to the owner's separate interest, or by restricting access solely to the owner's separate interest.(Civ. Code §1361.5.)

Landlord-Tenant. A similar provision can be found in landlord-tenant laws (Civ. Code 789.3(b)(1)) which includes penalties up to $100 per day if a landlord locks out a tenant. Even though your association does not own the unit, California courts have analogized associations to landlords and held them to the same standards. (Frances T v. Village Green.) If you re-key the building and refuse to provide a key to the ne'er-do-well, you would be locking him out of his mother's unit. Whether or not he has a legal right to occupy the s unit is something for the courts to decide, not the board of directors.

Police & Courts. Calling the police to escort the son off the property is not an option since it is a civil matter not criminal and the police will refuse to get involved. Going to court to evict the son via an "unlawful detainer" action will also fail since the association is not the owner of the unit. In short, your HOA has all the liabilities of a landlord but none of the rights.

RECOMMENDATION: Your best bet is to lien the unit for delinquent assessments and foreclose. However, giving proper notice to the mother will be problematic (unless you know where she is buried). You will need to work with legal counsel to pursue the foreclosure.

NO DOGS ALLOWED!

QUESTION: Can the board make a rule not allowing dogs on common area grass?

ANSWER: I suppose they could but that would likely provoke a recall petition the next day. If someone were to challenge the rule in court, the board will have the burden to convince a judge the rule is reasonable. I would not bet the farm on that one. If the board is concerned about dogs relieving themselves on the grass, there are better ways to deal with the problem--fines, suspending privileges and tasers come to mind.

COST OF HOA
REMODEL PROJECTS

QUESTION: Are members of an association entitled to know the costs of a remodeling project or is this confidential? 

ANSWER: If you mean your neighbor's remodel project, no. If you mean the common areas, you have a right to review (i) contracts approved by the board for the remodel project, (ii) monthly financial statements that would reflect HOA expenditures, and (iii) financial records such as invoices and checks. (Civ. Code §1365.2(a)(2))

WHO CAN 
CHANGE THE RULES?

QUESTION: Some owners insist that if we do not enact a rule they want, they will force the board to send a ballot to the membership for a vote. Can they force the board to place a rule change on a ballot or does it stop at the board level?

ANSWER: It stops at the board level. Only the board has the authority to adopt and amend rules. (Civ. Code §1357.130.) Members can, however, veto a rule if they follow the steps described in Civil Code §1357.140 but that is the extent of membership authority (unless the governing documents state otherwise). Although members can petition for a special meeting for any lawful purpose (Corp. Code §7510(e)), forcing a ballot to add or change rules is not within their authority. Indirectly, members can change the rules by electing board members who agree with their position.

MEMBERSHIP MEETING
MOTIONS

QUESTION: A ballot requesting a bylaw amendment is mailed to the membership prior to the annual meeting. At the annual meeting, ballots are counted and it is announced that the proposal failed. Can an amendment to the original proposal be offered at that time if a quorum is present?

ANSWER: If you mean revise the failed amendment and put it to a vote on the spot? No. The only thing you can do is have a show of hands on a recommendation to the board to send a revised amendment to the membership. If the board agrees, they can mail out a new amendment together with a ballot for approval. The reason the failed amendment cannot be revised and approved on the spot is that voting must be by secret ballot with a minimum 30-day voting period. (Civ. Code §1363.03(b)&(e))
 

Adrian J. Adams, Esq. Adams Kessler PLC