MEETING NOTICES

QUESTION: Our HOA posted a board meeting agenda four days ahead of time but it was up for less than half a day. They said they only have to post it four days before, not leave it there for four days. Is that true?

ANSWER: No, it's not true. By their reasoning, boards could post a meeting notice for ten minutes and then take it down . . . or two minutes . . . or thirty seconds. Not only does it not pass the smell test, it violates the Open Meeting Act. The statute calls for a period of time not a point in time: 

Unless the bylaws provide for a longer period of notice, members shall be given notice of the time and place of a meeting . . . at least four days prior to the meeting. (Civil Code §1363.05(f))

Sabotage. If someone is trying to sabotage a board meeting by tearing down notices, that does not invalidate the meeting if the board is unaware of the vandalism. If the board/management is aware that notices have been removed, they have an obligation to re-post them. If the problem is ongoing, the board should invest in a bulletin board that can be locked.

DILIGENT VISUAL
INSPECTION

QUESTION: The law in California requires a "diligent, visual inspection" every three years of property the association is obligated to maintain. What is diligent?

ANSWER: You are referring to language found in the Davis-Stirling Act which requires boards "as part of a study of the reserve account requirements" to "every three years" cause to be conducted a:

a reasonably competent and diligent visual inspection of the accessible areas of the major components that the association is obligated to repair, replace, restore, or maintain . . . (Civil Code §1365.5(e))

"Diligent" is not defined in the statute but is clearly more than a cursory inspection. Black's Law Dictionary defines diligent to mean "attentive and persistent in doing a thing." In addition to "diligent," we must factor in what proceeds diligent, i.e., “reasonably competent" and what follows, "accessible areas." 

Reasonably Competent. "Reasonably competent" does not require a particular professional license but there are two national credentials available to reserve study professionals. One is the Professional Reserve Analyst (PRA) administered by the Association of Professional Reserve Analysts (APRA). The second is the Reserve Specialist (RS) administered by the Community Associations Institute. Both organizations require a demonstrated background of training and experience in properly preparing reserve studies before they will issue designations.

Accessible. Inspection of "accessible" areas does not mean tearing off roofs and opening walls. In my opinion, it means getting onto roofs, going into elevator rooms, opening electrical panels, and opening equipment service panels (such as on boilers) to obtain equipment information. A diligent person would do all of the above.

Disclosure. Finally, industry standards require that reserve professionals disclose whether a complete inspection or representative sampling was used, whether field measurements or plans/schematic take-offs were utilized, and whether destructive testing was employed.

Thank you to Scott Clements, RS, PRA, CMI of Reserve Studies, Inc. and Robert Nordlund, PE, RS of Association Reserves for their assistance with this question.

DISTRIBUTING
THE BUDGET

QUESTION: Our bylaws state that the budget must be sent out no less than 45 days prior to the start of the new fiscal year. Davis-Stirling states a 30-90 day window prior to the start of the fiscal year. Does the 45-day requirement conflict with the statute? I can't figure this out.
ANSWER: Your bylaws are more demanding than the Davis-Stirling Act, which means the two are in conflict. Which one prevails? Interestingly, the Act does not always override governing documents but in this case it does. The statute states that "Notwithstanding a contrary provision in the governing documents, a copy of the operating budget shall be annually distributed not less than 30 days nor more than 90 days prior to the beginning of the association's fiscal year."Civil Code §1365(a)4. As long as your budget goes out within that 60-day window, you're fine. For more on resolving conflicts, see "Rules of Interpretation."

FEEDBACK

Laundry Noise. Ha! Not all seniors are in bed by eight p.m.! -Marion K., aged one

RESPONSE: You might not be but I am.

Committee Meetings. I understand that a board member can not enter into committee discussions but can the board member speak during the Open Forum? -John K.
RESPONSE: Of course.

Association v. Membership. When will we stop referring to “the Association” and begin referring to "the Membership"? There is no entity separate from the homeowners. If I am being sued as part of the membership of the Association I would certainly wish to be informed. We continue to speak about the Association as if it is a Landlord to whom all responsibility is transferred without detriment to the individual owner. Each and every one of us who owns a property in a CID is affected by litigation. -Diana S.

NO NEWSLETTER 

Sorry, no newsletters for the next two weeks. I will be spending time in the Yukon with Larry Stirling and assorted Army buddies camping and panning for gold. We fly into White Horse and then head down river for fishing, fun and that glittery stuff.

At the same time, attorney Jasmine Fisher will be in Canada competing in an Iron Man race hitting the water at 7 a.m. to swim 2.4 miles, then biking 112 miles, followed by a 26.2 mile marathon. I think she's nuts. She will come back tired--I could come back rich!

Adrian J. Adams, Esq. Adams Kessler PLC