REMOVE MEMBERSHIP FROM DELINQUENT OWNER?

REMOVE MEMBERSHIP
FROM DELINQUENT OWNER?

QUESTION: We have a property owner who is in arrears. Can we remove him from membership in the HOA? Our bylaws state that we can suspend voting privileges, which we have done, but we would like to remove him completely from the membership.

ANSWER: Sorry, you can't remove his membership. Membership is automatically conferred by ownership of a lot or condominium. Civil Code §1358. The only way you can take away a delinquent owner's membership is to foreclose on his property.

REMINDER ABOUT
LENDER FORECLOSURES

All associations should record a blanket "Request for Notice of Sale" to receive notice of lender foreclosure sales. Otherwise, boards will notknow who to bill for assessments after the sale occurs.

Recording the Request is important if associations want to benefit from AB 2273 which goes into effect January 1, 2013. This bill requires lenders to record foreclosure sales within 30 days of the sale. It makes banks accountable for the properties they acquire, i.e., once the sale is recorded, the lender must start paying HOA dues and special assessments. 

INVESTORS HAVE
EQUAL VOTES

QUESTION: Our board allows owners of more than one property (rentals) to have equal voting rights for each property. Is this legal?

ANSWER: Your board is not the culprit. Voting rights are established by your governing documents, which ties them to ownership. As a result, owners of a separate interest in a common interest development have the right to cast votes for each property they own--that includes investors.

Problems. Allowing investors to own multiple properties can create problems for associations. The first is the higher rental population they bring to the development and the second is the voting power the investors wield. If an association has cumulative voting, the investor's influence is magnified even further.

Solutions. To contain the problem, associations can amend their CC&Rs to limit ownership to one or two properties per person or entity. At the same time, HOAs should consider adding a requirement that no buyer can rent his property until he has resided in the residence for at least one year (some associations make it two years). This will deter investors from buying units and immediately turning them into rentals. It will bring owner-occupants into associations, which is what you want. 

HARDWOOD FLOORS

QUESTION: An owner on the 2nd floor wants to install hardwood flooring. I can't find anything that says that the owner installing the floors must seek approval from the owner below, just the HOA board. Is this correct? I was always under the assumption that the owner that lives below would need to approve the floors.

ANSWER: Unless your governing documents provide otherwise, the architectural committee (or the board, depending on your documents) reviews and approves, modifies or disapproves the remodel application. Some associations (especially PUDs) require notification of surrounding neighbors when remodel applications are submitted so neighbors can attend the architectural meeting to observe the review process. Neighbors can voice their concerns but they cannot veto the proposed project. If the owner meets the association's architectural guidelines, he/she should receive approval for the proposed work. 

RECOMMENDATION: When it comes to hardwood floors you need to have objective standards that fit your building's particular construction. Some buildings, especial condo conversions, are so poorly constructed that there is no practical or cost effective way to install hardwood floors that would not create a nuisance to unit owners living below them. Your board should adopt strong architectural guidelines and then enforce them in a consistent and evenhanded manner.

FEEDBACK

Adrian's Angels. Kudos to Adams Kessler for their team of amazing lawyers! I have had personal experience with Karen Jacobs whom I found to be thoroughly knowledgeable. She listened to me instead of acting as if I was an intrusion in her day. I had great success with her in our dealings. If the rest of the team is as personable and competent, I offer that the women of AK are more than angels--dare I say it, they are GODDESSES. -Anita H.

Free Riders #1. I loved your answer to "FREE RIDERS"! Very well said! -Ken H.

Free Riders #2. Kudos on your response regarding suspension of common area privileges. I find this practice to be one of the most successful in collecting debt on behalf of my clients. Last month alone, I was able to secure over $30K between two associations either through payment in full or a one year payment plan. I find it funny that revocation of parking transponders, parking tags and pool use is more persuasive than legal action. This process is especially useful when there are tenants in a unit; as soon as tenants are copied on the hearing letter, they put pressure on the unit owner. -Vicki M.

Free Riders #3. Please tell Adrian that I send a HUGE thank you for his comment in yesterday’s column that pertained to “giving people a free ride.” Amen!!! -Phyllis H.

Free Riders #4. “Giving people a free ride at others' expense is a poor business practice we reserve for our federal government.” Bravo! And Amen!! -David C.

NOTE: I had two readers who took offense at the comment because they thought it had political connotations. In our current overwrought political season? Perish the thought! -Adrian

DRE Warning. Regarding the DRE "Consumer Warning," I noticed on page 3 under the second bullet that the DRE implies that an owner is entitled to the "Delinquent Report" from the association. Is that true or am I misunderstanding the intent? -Bob F.

RESPONSE: Yes, owners are entitled to financial information, including a delinquency report. Boards should already be receiving them in their monthly financial reports. However, if names are in the report they need to be redacted before giving copies to owners.

No Smoking #1. We are a 36-unit condo association that recently adopted a no smoking policy both inside the units and in any part of the common area EXCEPT for a designated smoking area in the common owners parking lot. We adopted the policy based on the nuisance clause in our CC&Rs. -Rick H., Canyon Lake, CA

No Smoking #2. Our association has the following restriction: "No owner, family member, tenant, resident, guest, business invitee or visitor shall smoke cigarettes, cigars, or any other tobacco product anywhere within the boundaries of BTH. This prohibition shall include the outside common area, enclosed common area, exclusive common area (balconies and patios) and all units within the project." -Jonathan P., Berkeley, CA

No Smoking #3. I have one association in Tiburon that doesn't allow smoking anywhere on the property, including inside units. "No Smoking Property" signs are at each property entry. -Trudy M.

Adrian J. Adams, Esq. Adams Kessler PLC