acc winter 2013
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The
Accell Advisor
What Do Directors Need to Know?By Matthew A. Gardner, Esq., Richardson Harman Ober PC
Lets imagine that you are one of those dedicated individuals that care about
your community and want to help it improve (the chances are very good if
you are taking the time to read this). You realize that the best way to serve
is to volunteer your time and effort to meet the needs of your homeownersassociation. You see the request from your association for nominations
suffer through a contentious campaign, and prevail to become an elected
director on your associations board. After a brief celebration with our
friends and neighbors, you realize something.
Now what?
It is not enough to have the drive and desire to be a director on your Board.
You need the skills and the knowledge to make the right decisions and avoid
the wrong ones. So where do you start?
The first step should be looking at the associations governing documents
(Articles, CC&Rs, Bylaws and Rules). These documents are the essential
elements of successful management.
The CC&Rs will lay out the major maintenance respon sibilities and duties
of the association: assessments, collections, common area, etc. The Bylaws
will give the board a roadmap on how to administer and govern consistent
with its corporate duties: meetings, notice, minutes, elections, etc. The
Rules will specify how the board can approach day-to-day living and
enforcement of association authority: common area use, discipline, etc.
(Continued on page 3)
W I N T E R 2 0 1 3
The Anatomy ofStairs
In most cases, it takes 10-20 years for
the failure of a stair to be complete or
obvious. With few exceptions, wehave found the cause of failure to be
consistent from stair to stair and
community to community. In all cases
the failure is due to exposure to rain
and sun and accelerated by poor
maintenance or poor design. Failure
can result in loose stair treads, which
can lead to falls or water intrusion
and dry rotted wood.
Replacing or repairing stairs is not
always as simple as just rebuilding
what you are replacing. Depending
on the extent of the repair, you may
be required to bring the stair into
compliance with current code.
Current code does not allow stairs to
be as steep or narrow as they once
were. Do not be surprised if the new
stair will not fit in the same footprint
of the old stair.
By Smith Architects
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The Anatomy of Stairs(Continued from page 1)
There are only a few material choices when building or replacing
an exterior stair. The Architect can select wood, pre-fabricated
concrete or steel. The materials can either be exposed to theweather or coated with a waterproof coating or deck topping.
Here are some common definitions when dealing with stairs:
Stair Treads
The horizontal surface of the stairs that you step on. These can be
made of pre-cast concrete (made at a factory), steel, wood or
some type of solid (hopefully waterproof) deck coating. The
treads are required to be uniform in depth and have a minimum
depth of 11 inches to meet current code.
Stair RisersThe vertical space or surface at the back of each tread, which
separates one tread from the next tread. Sometimes the riser is
open meaning an object can pass through it. Sometimes the riser
is closed. Closed risers comply with current building codes; open
risers do not comply. The risers are to be consistent in height and
have a current code limit of no less than 4 inches high and no
greater than 7 inches high.
Stair NosingWhere the riser intersects with the tread.
HandrailThe wood or steel tube or rod that ascends with the stairs.
Handrails are required by code on both sides of an exterior stair.
There are very few exceptions to this code requirement. They are
required to be of a specific diameter, shape and distance from the
wall or guardrail. They are required to extend past the top and
bottom of the stair and to terminate in such a manner that a shirt
or sleeve or bracelet will not get caught on the handrail.
(Continued on page 4)
Stair Stringer
This is the structural beam (wood or steel) that runs parallel to
the treads as they ascend. There are times when there is no
visible stringer because it is either embedded in a wall or hidden
with finish materials.
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What Do Directors Need to Know?(Continued from page 1)
to vendors suited directly to your communities needs, it
also provides regular valuable tools and education.
Everything from monthly luncheons dedicated to
relevant topics facing associations, to links to most
recent legislation, to mediation services, to workshops
for new Boards to cover all of the above. A quick search
can provide the answers to many of the questions facing
new directors. Visit the website to find the latest at
www.caionline.org.
While the directors make the final decision, an informed
decision should be based on acquiring the basic
knowledge from qualified professionals: managers,
attorneys, vendors, etc. Taking the time to learn more
from the dedicated professionals serving your
community could you time and headaches.
Finally, new directors should keep in mind the most
important aspect of their job; their neighbors.
The most valuable assets of an Association are its
homeowners. Directors who can utilize their
homeowners while conducting business will find their
duties easier to fulfill. Remember that the primary duty
that directors must fulfill is taking action in the best
interest of the association and its homeowners. The
most that a new director can hope for is an informed andinterested community. When directors engage their
equally volunteer homeowners, they will find extremely
valuable resources. Directors that ignore their
homeowners will find themselves the object of suspicion
and mistrust. Dont forget that the law requires
associations to receive and consider input from the
homeowners; requires financial and informative
disclosures; and requires regular open board meetings to
conduct business. Boards that do not meet these basic
obligations will not only be in conflict with the law, but
Every association will have different needs and duties
that should be laid out in your documents, so it is not
enough to know generally what information is located
where. A director must be familiar with these
documents before he or she can effectively carry out
those duties.
The second major source of information will be
California state law. For homeowners and association,
that means the Civil Code beginning with Section 1350,
otherwise known as the Davis-Stirling Act. This body of
law will enhance, and in some cases substitute, the
directors duties and authority under the governing
documents.
As an example, changes that affect every board and
association would be in Senate Bill 563. One provision
prohibits boards from making decisions by email, unless
in cases of emergencies. Another requires additional
notice for executive sessions. If you are not up on these
changes, the boards authority to act or enforce could be
called into question. The law is updated regularly, so a
good director will find a way to stay on top of the
changes. Sometimes that means making changes to their
governing documents that no longer reflect the law.
Sometimes it means finding someone who can help you
navigate the changes.
In essence, associations are their own communities with
varied needs. To be a successful director, you need to be
able to handle a wide variety of issues with competence.
As volunteers, that means relying on professionals for
input and guidance.
Being a member of a group like Community Associations
Institute (CAI) can be a valuable resource for
information. Not only does membership give you access
http://www.caionline.org/http://www.caionline.org/ -
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The Anatomy of Stairs(Continued from page 2)
Guardrail
The guardrail is designed to prevent falls from stairs of decksgreater than 30 inches above the ground. Current code requires
the guardrail to be no less than 42 inches high (it was 36 inches
before) and designed to prevent a 4-inch diameter sphere from
through it (it was 6 inches before). The current code also
requires the guardrail to be strong enough to resist a 200-pound
load along the top of the rail. We are not sure if this is based on
science or the average weight of a college kid at a kegger party.
Quick Tips for Managing Stairs Stairs with waterproof coating should be inspected annually
to confirm the coating has not been compromised by
furniture moving or misuse. Pre-case concrete should be
checked with every painting (3 to 5 years depending on your
climate) to confirm the treads are tight and the stringers are
structurally sound.
Be diligent in maintaining the paint where the pre-cast
concrete treads touch the stringer and where there are
exposed fasteners (bolts, screws, etc.).
Replacement or repair of treads typically does not require a
building permit. With few exceptions we have found that
repair or replacement of stair stringers requires building
permits.
Prior permit experience with stair replacement or repairs in
one city does not mean that another city will permit the
stairs the same way. Although the building code is a
statewide code, the Building Official is each city is the final
interpreter of the code. What worked in Irvine may not
work in Huntington Beach.
Some stairs are so complicated and integral to the building
structure that they cannot easily be replaced or repaired.
Plan on using temporary stairs when it is a big job that will
last more than a few days and when there is room to
accommodate the temporary stairs. If there is insufficient
room, you may need to look at billeting residents in local
hotels.
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Email Dos and Donts for Community Associations(by Mary M. Howell, Esq., Epsten Grinnell & Howell APC
others how they would vote on this issue, the email to themanager
would violate the Davis-Stirling Act. But, if its simply, put this item
on the agenda or heres how I want you to handle that situation
the email does NOT violate the Act.
Question: Can a director email one or two, but less than all, the
directors about anything that remotely concerns the association?
Answer: It depends on what constitutes a majority of the Board. I
the Board only has three members, such an email would violate the
Act. If there are five directors, emailing one other director would be
appropriate, but emailing two others would constitute a
congregation of the majority of the Board. If there are seven
directors, then one director could safely email two others. Note
however, that if such emails are part of a serial attempt to obtain the
concurrence of all other board members (discussed below), thenumbers dont matter: such a communication is not allowed.
Question: Can one director individually email each of the othe
directors what they think about an issue the director proposes to
bring up?
Answer: As the above, would be permissible UNLESS the email
were part of a serial attempt to obtain a concurrence of the Board
on an issue of association business. Part of the problem is drawing
bright lines of distinction is that the permissibility of such
communications depends on the subjective intent of the parties to
the communication. A director might not start out with that goal in
mind, but over time as responses come in, that director might sift tothe polling mentality condemned in the Stockton Newspaperscase
discussed above. To avoid this, refrain at all time from forwarding
threads about a subject, which contain other directors
observations and thoughts.
Question: Can one director individually email each of the other
directors to discuss what a committee (say, the budget committee)
has said during its deliberations?
Answer: Yes, provided the communication is not a direct or indirec
action leading to a concurrence of the other directors as to the
subject matter of the communication.
Question: Can a director instruct a manager by email to contac
each of the other directors to get their input on a certain issue?
Answer: No. As noted previously, the use of an agent or
intermediary to take a poll or obtain a consensus on anything
pertaining to the association circumvents the Act.
Question: Thats dumb! By this logic, the Board cant even take a
poll on whats a good meeting date, or where to hold the annual
meeting. Can this really be the law?
Answer: Dumb doesnt even begin to cover it. Bottom line is tha
whats is the use of emails, between a majority of the
With the advent of the 2012 amendments to the Davis-Stirling
Common Interest Development Open Meeting Act (the Act) which
restricted the use of emails by board members, unanswered
questions have been flying. The statute does not address many of
these, but the Brown Act (which regulates the meetings of public
agencies, and upon which the Act is modeled) has the virtue of
quite a bit of case and law commentary. It appears to answer many
of the questions regarding Davis-Stirling, so even though the
Brown Act does not, itself, apply to community association board
meetings, the following discussion, based on the Brown Act, will be
helpful.
Question: Can a director email the rest of the Board purely to
discuss a possible action the Board might take in the future? Its
not on the agenda yet, and all that would happen is a discussion ofthe issue, not any action.
Answer: Probably not. A lot depends on the extent to which the
current prohibitions on email meetings are intended to mirror
whats already in the Brown Act. The Davis-Stirling Act now
defines a meeting as a congregation of the majority of the
directors to hear, discuss or deliberate on some action that is
within the boards purview. The language in the Brown Act
defining meeting (Govt. Code 54952.2) is very similar.
By analogy to the Brown Act, such communication would be
prohibited, even if there isnt a vote on the issue. As one court put
it (in connection with the Brown Act), It is clearly the public policy
of this state that the proceedings of public agencies, and the
conduct of the publics business, shall take place at an open
meeting, and that the deliberative process by which decisions
related to the publics business are made shall be conducted in full
view of the public[T]he legislature has considerably broadened
the [Brown Act] by passing amendments intended to bring the
informal deliberative and fact-finding meetings within [the Brown
Acts] scope Wolfe v. City of Fremont (2006) 144 CA4th 533,
541-542.
Question: Can a director email the community association manager
with directions? What if that email goes to all the other directors
too?
Answer: Generally, a director can email the manager with either
directions or questions. And that email can be copied to the other
directors. What is prohibited is using the manager as an
intermediary, to obtain the concurrence of the other directors on a
possible issue of association business, outside of a meeting. Thus,
in Stockton Newspapers v. Redevelopment Agency (1985) 171
CA3d 95 (another Brown Act case), the court condemned the use of
an intermediary (in this case, the attorney for the agency) to take a
pollfor the purpose of obtaining a collective commitment or
promise from the members on an issue to go before the board.
Accordingly, if the direction given by the initial email is go ask the
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(Continued from page 5)
directors (serially or all at once) to develop a collective
concurrence as to action to be taken on an item, which
includes any exchange of facts, or substantive discussions
which advance or clarify a members understanding of an
issue, or facilitate an agreement or compromise amongst
members, or advance the ultimate resolution of an issue.
Ca. Department of Justice, The Brown Act, Open Meetings for
Local Legislative Bodies (2003), page 12. On the good side,
the same document states that the Attorney General does
not think the prohibition against serial meetings would
prevent an executive officer from planning upcoming
meetings by discussing times, dates, and placement of
matters on the agenda. It also appears that an executive
officer may receive spontaneous input from any of the board
members with respect to these other matters so long as a
quorum is not involved. Ibid.
Question: So exactly what can a director legally do in terms
of emails to other directors?
Answer: So far, as is clear today, and by analogy to the
Brown Act:
1. The directors can meet/communicate via email when
there is an emergency, and the individual directors have
consented, in writing (including email), to such an email
meeting. The consents must be filed with the minutes.
Civ. Code Section 1363.05(j)(2)(B).
2. An individual director may communicate (back and
forth) with another director or directors, even about
association business, PROVIDED the total number of
directors involved does not exceed a majority of the
board, and FURTHER PROVIDED that the
communication isnt part of a serial attempt to obtain
board concurrence on an issue, outside of a meeting. 84
Ops. Cal. Atty. Gen. 39 (2001)
A serial meeting is a series of communications, each of
which involves less than a quorum of the legislative
body, but which taken as a whole involves a majority of
the boards members. As one commentator put it,
[o]nce serial communications are found to exist, it must
be determined whether the communications were used
to develop a concurrence as to action to be taken. If the
serial communications were not used to develop a
concurrence as to action to be taken, the serial
communications do not constitute a meeting and the Act
is not applicable Note, however, the Attorney General
goes on to say, conversations which advance or clarify a
members understanding of an issue, or facilitate an
agreement or compromise among members, or advance
the ultimate resolution of an issue, are all examples of
communications which contribute to the development of
a concurrence as to action to be taken by the legislative
body. Accordingly, with response to items that have
been placed on anagenda or that are likely to be placedupon an agenda, membersshould avoid serial
communications of a substantive nature concerning
such items.
Note that the Wolfe case further provides that the Act
can be violated by improper communications which lead
to a consensus, whether intentional or not. When in
doubt, dont.
3. A director can communicate with the manager to give
instructions, and can receive from the manager
information pertaining to association business. Such
information might include committee reports, legal
opinions, copies of correspondence, proposed
minuteseven a meeting between the manager and
director wherein the manager lobbies the individual
directorbut generally such one-to-one
communications are permissible unless and until they
turn into an attempt to find out what other directors
think on the issue in question. Wolfe v. City of Fremont,
supra, at 546-547.
4. A director can receive, and respond to, emails from non-
director homeowners (though the wise director will not
respond unilaterally, but after permissible consultations
with fellow directors and on behalf of the Board as a
whole.)
5. All directors can receive information from other
directors so long as they do not deliberate collectively
with respect to such information, outside of a meeting.
Thus, a director can send an email to all other directors,
even about association business, so long as this action is
one way and not an invitation to open dialog about the
issue. Presumably if a director sent out an email with an
opinion or facts, and said DONT REPLY TO THIS
EMAIL, (and there were no subsequent replies) then
such communication would not violate the Act. Roberts
v. City of Palmdale(1993) 5 Cal.4th 363.
6. The directors can communicate regarding agendas and
date, time and place of proposed meetings.
We hope the legislature clarifies some of these issues, but the
new Davis-Stirling simply recycles this content. If you see
the dilemma, and believe volunteerism will be impaired as a
result of these prohibitions, contact your legislators, and
request some amendments to allow more communication