ADDING DIRECTOR QUALIFICATIONS

ADDING DIRECTOR
QUALIFICATIONS

QUESTION: A renter was elected to the board because our bylaws are silent on who can be a director. Now we have a husband an wife who want to run for the board. We don't have time to amend our bylaws before the election, can the board simply prohibit renters and spouses in our Election Rules?

ANSWER: There is a split of opinion in the legal community on this issue.

Opinion - Boards Can Add Director Qualifications. Some attorneys believe that additional qualifications may be imposed by the board without membership approval via the rules. They argue that boards are authorized to adopt election rules and this means they can add director qualifications when they adopt or amend rules. They argue that as long as the qualifications are reasonable, they would survive legal challenge.

Opinion - Boards Cannot Restrict Candidates. In my opinion, boards cannot restrict who can run against them. Only the membership has the power to impose director qualifications. I base my opinion on the following two points:

 1. No Restrictions in the Law. The Corporations Code imposes no restrictions on who may be a director except to require that they be a natural person. (Corp. Code §5047.) The Davis-Stirling Act has no restrictions of any kind on who can serve on the board. If neither the Corporations Code nor the Davis-Stirling Act restrict candidates, I don't believe directors can limit who can run against them.

2. Inconsistent with Bylaws. Moreover, rules adopted by a board cannot be "inconsistent with governing law and the declaration, articles of incorporation or association, and bylaws of the association." (Civ. Code §1357.110(c).) This requirement is repeated in the election provisions of the Davis-Stirling Act which state that board qualifications in the election rules must be "consistent with the governing documents. (Civ. Code §1363.03(a)(3).) In my opinion, it would be inconsistent to impose restrictions in the election rules where none exist in the bylaws.

RECOMMENDATION: Since there is no consensus in the legal community and no case law to offer any guidance, boards shouldconsult their association's legal counsel on how best to handle this issue.

FUSS OVER BUDGETS

QUESTION: Is there a requirement for the board to spend no more that the budgeted amount for a particular line-item in the annual budget? If not, why all the fuss regarding establishing, approving and publishing a budget?

ANSWER: Budgets are guidelines only. They are the board's best estimate of expenses so (i) directors will know how much to assess the membership and (ii) members will know how the board arrived at that number.

Consequences. If boards were prohibited from spending more than budgeted for a particular line item, it could have significant negative consequences for an association. Theoretically it would mean that if insurance premiums went up mid-year, the board would have no choice but to allow the association's insurance to lapse. That could be disastrous.

HOA NAME CHANGE

HOA NAME CHANGE

QUESTION: If an HOA changes its name, do the original CC&Rs and bylaws still remain the governing documents even if the board has not yet paid to have them updated with the new name?

ANSWER: Yes, the documents are still valid even though they contain the old name. CC&Rs are recorded against all property in the development so they remain intact regardless of what you call the development. It is like a young lady getting married, she is still the same person and her credit card debt follows her regardless of the name change (not that she has any debt...I'm just saying it would if she did). In the same way, bylaws follow the corporation not the name. Even so, the board should be diligent about updating documents.

Loss of Name. Sometimes an association will inadvertently lose their corporate name because it was suspended for failing to file tax returns or statements of information. When that happens, it could end up with one name for the corporation and another for the development (via the CC&Rs). 

HAPPY BIRTHDAY

QUESTION: For 12 years I was able to put a Happy Birthday sign for one day on a common area. Nothing was said to me about the sign. Now I got a letter from the management company that I can no longer do that?

ANSWER: For years I rolled through a stop sign at particular intersection without being molested. One day a cop gave me a ticket. He was not sympathetic to my argument about the years of precedent I had set. He must work for your management company.

BIBLE STUDY IN UNIT

ANIMAL SACRIFICE

QUESTION: We have a tenant conducting Santeria ceremonies which include the sacrifices of goats, chickens and roosters. On trash days we have seen blood coming from trash bags running into the storm drains. What is the best way to go about stopping these practices without violating their religious freedoms?

ANSWER: Okay, those are images I don't need in my mind. For those who are unfamiliar with Santería , it is a religion similar to voodoo. It originated in Cuba and combines elements of African paganism, Roman Catholicism and ritualistic animal sacrifice. Although there are no cases involving Santería and homeowner associations, there are two cases involving cities.

Church Building. In 1993 the City of Hialeah in Florida passed an ordinance to prevent the practice of Santería in the city. The ordinance prohibited the killing of animals in a public or private ritual not for the primary purpose of food consumption. The Church of Lukumi Babalu Aye sued. Based on the First Amendment's free exercise of religion, the United States Supreme Court declared the ordinance unconstitutional and the church was allowed to conduct animal sacrifices in its church building. 

Private Residence. In 2009 the City of Euless, Texas passed an ordinance aimed at stopping the practice of Santería in a residence by prohibiting the torture and killing of animals in residential homes. The Court of Appeals ruled that Merced, a Santería priest, was acting within his Constitutional rights when he sacrificed goats and other animals as part of his home-based rituals. The court noted that home sacrifice is "a crucial aspect of Santería, without which Santería would effectively cease to exist.”

Both cases involved governmental interference with the free exercise of religion. In each case the courts found that the object of the laws was to to suppress religiously motivated conduct which is why the courts struck them down.

Homeowners Associations. Neither of the cases addressed private restrictions, such as those imposed by homeowners associations. Accordingly, it is possible that CC&R restrictions against any (not just religious) activity that causes a nuisance could withstand legal challenge. Just as private organizations can restrict free speech, they could conceivably restrict religious practices that negatively impact other members (see question below on Bible studies).

RECOMMENDATION: Because this is uncharted territory, boards should consult legal counsel when faced with these kinds of situations.

BIBLE STUDY IN UNIT

QUESTION: We have a home owner in our condo complex who holds Bible studies in his home. Is this a violation?

ANSWER: Would the same question be asked if a group of atheists got together to study the Humanist Manifesto? By itself, studying religious material does not violate anything and should not be regulated. As with animal sacrifices, boards need to look at non-religious factors.

Nuisance. The issue to examine is one of nuisance. Sacrificing animals in a condo can be quite disruptive to the quiet enjoyment of other members who have to listen to screaming animals meeting an untimely death. Moreover, ritualistic sacrifice may create unsanitary conditions (such as blood leaking from trash bags into the common areas).

A Bible study, on the other hand, is no different than friends getting together to play cards or a book club discussing the latest best seller. If, however, the Bible study turns disruptive from a pounding piano and loud singing together with parking problems from illegally parked vehicles, then nuisance becomes an issue. In the scenario I described, the nuisance needs to be more than mere inconvenience, it needs to be significantly disruptive to convince a judge that injunctive relief is warranted (following appropriate violation hearings, fines, IDR and ADR).

Reading Material. The bottom line is the motivation for taking action against the Bible study. Is it because religious material is being studied? No judge is going to allow an association to regulate what people read. 

ANT INVASION

QUESTION: I have ants that come up through the foundation of my unit. The board has a pest control that sprays the complex twice a month, and has paid for an inspection of my unit. Who pays for my unit to be treated for ants that come in through the foundation? The board said it is a homeowner expense since the ants are not in the structure or common area. 

ANSWER: I side with the board on this one.

FEEDBACK

Service Animal #1. I had to laugh at your distinction of a “service animal” vs. a “companion” animal. As a new owner of a 15-week old pup, it is evident that my little companion has no special training; but I have to say… this lack of training GIVES me anxiety!! -Cyndi B.

Service Animal #2. Can a HOA prohibit ANY pets from pool area? From swimming in the pool? -Charlie H.

RESPONSE: Associations can prohibit animals from pool areas EXCEPT service animals. If someone is blind and needs their guide dog to safely maneuver to a lounge chair, the association cannot prohibit the dog. Swimming is a different matter. From my review of applicable laws, it appears that service animals can be prohibited from entering the water for health and safety reasons. However, there may be an exception if the service animal has been trained to perform a specific task essential to its disabled owner's use of the pool and the animal does not pose a threat to the health and safety to others or to the sanitary conditions of the pool. Then it is possible that reasonable accommodation could be required. You should get a legal opinion from your attorney on this issue.

Service Animal #3. People with diagnosed depression can and often do have service dogs who provide emotional support. The key word here is "diagnosed." Some people can claim they suffer from depression even when there has been no diagnosis. So, they could try to have a dog where one is not allowed using the alleged depression as a subterfuge. A companion dog for a person suffering from depression should undergo obedience training even though the type of service the dog renders is not obvious, i.e. the person is sighted. Training can be obtained at a reasonable cost from some of the major pet supplies retailers such as Petsmart. -John A.

Service Animals #4. Service dogs are not just for physical disabilities, the ADA now includes psychiatric disabilities. The revised definition became effective March 15, 2011: "Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA." -Kelly M.

SERVICE & COMPANION ANIMALS

SERVICE & COMPANION ANIMALS

Service animals and comfort animals are not the same. A "service animal" is one specially trained to assist the disabled retrieve objects, open doors, guide the blind, etc. A "companion" animal has no special training but provides emotional support to relieve anxiety and depression.

Widely Abused. Both service and companion animals are invaluable to the disabled. Unfortunately, the perfectly fit have abused disability rights to get around pet restrictions. The subterfuge starts by persuading their doctor to write a letter that the disallowed animal is necessary to their patient's health. The person then goes on the internet and pays a certificate mill to "certify" that their dog is a service animal. For a few dollars more, they can receive special dog tags and other paraphernalia for their newly minted service animal. And voila, their pet is exempt from the association's restrictions. A recent case in Florida addressed this practice.

Florida Case. The Sun Harbor HOA prohibited dogs. One member, Vincent Bonura, invited his fiancee to move in with him and she brought her dog in violation of the association's restriction. The association sent a violation letter and Bonura lied about having a dog. He later admitted to it but then claimed it was a registered service animal necessary for his fiancee's disability. He provided the association with a certificate he purchased on the internet.

The association was skeptical and requested evidence that his fiancee suffered from a handicap and asked what special training the dog had received to accommodate her handicap. Bonura ignored the board and litigation ensued. At trial, the fiancee's newly hired psychiatrist testified that he believed the dog helped her anxiety and depression. When the court ruled for Bonura, the association appealed.

Reversal. The court of appeals reversed. The justices noted that federal courts have long recognized that,

[T]he duty to make a reasonable accommodation does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to Plaintiffs' request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law.

The court found that Bounura had refused to comply with the association's request for reasonable documentation of his fiancee's disability and the need for a service dog. Even more problematic for Bonura, testimony failed to establish that his fiancee suffered from a disability.

Reviewing the record, there was no competent, substantial evidence indicating any substantial limitation on one or more of Ms. Vidoni's major life activities. In fact, the testimony indicated Ms. Vidoni was able to travel and work without the dog. Along those same lines, the evidence also failed to establish the necessity of the accommodation. Ms. Vidoni admitted that she was not as dependent on the dog as she had been originally and she could be independent of the dog at times including for work. (Sun Harbor v. Bonura.)

RECOMMENDATION: Even though Florida HOAs are allowed to prohibit pets, California has effectively ended the practice. Even so, California allows for reasonable pet restrictions (weight limitations, number limitations, etc.). When faced with a request for accommodation for a nonconforming pet, associations should consult legal counsel.

PAINT COLORS

QUESTION: Our HOA requires homeowners receive approval from an architectural committee before painting their homes. The committee does not have any standards for reviewing paint colors. Can they deny a color simply because they don't like it?

ANSWER: Yes they can reject a paint color simply because they don't like it. That is precisely why an architectural committee exists--to make aesthetic decisions about what is appropriate for the community and what is not.

Another important function of the Association is to preserve the aesthetic quality and property values within the community. (Cohen v. Kite Hill.)

Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. (Dolan-King v. Rancho Santa Fe.)

Written Standards. Not having written standards, however, is a problem. It leads to discord and potential litigation because members jump to the conclusion that they are somehow being discriminated against if their request is denied. If the committee were to adopt written standards, applicants would know what colors to choose from and would submit a conforming color, thereby avoiding rejection.

Disapproval Requirements. Per the Davis-Stirling Act, any decision by the architectural committee must be in writing. If a proposed change is disapproved, the committee's decision must include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision.

RECOMMENDATION: All associations should adopt clearly defined architectural standards. Once adopted, enforcement of those standards must be in good faith and not arbitrary or capricious.