Homeowner Association Blog

QUESTION: Is there a legal ruling regarding burial of pet remains in the common areas of an association?

ANSWER: Wow. That’s a new one! I suppose a pet could be buried in the common areas if 67% of the membership approved an exclusive easement per Civil Code §1363.07. But I see potential problems. Does the owner receive the spot in perpetuity or only for as long as he/she resides in the development? Who maintains the grave site (and the vandalism that inevitably occurs)? If the grave is permanent, there should be a recorded covenant with the owner so all future owners of the unit are obligated to maintain the site. If the pet is dug up and goes with the owner when the owner moves (or dies), then a written agreement will suffice.

Pet Cemetery. What happens when everyone wants to bury their pets in the common area? Will the pet cemetery affect property values? I keep thinking of Stephen King’s novel.

Some associations require those who use their common exercise facilities to sign a “hold harmless” agreement or “waiver of liability.” Such agreements were recently held to be valid and enforceable in a landlord-tenant case.

In Lewis Operating Corp. v. Superior Court, a tenant suffered personal injuries while using a treadmill in a common area exercise facility/health club amenity in the apartment complex. The tenant filed a lawsuit, which the landlord argued was without merit because the tenant had signed an agreement to waive all negligence claims arising from the tenant’s use of the health club facilities. The court agreed with the landlord and upheld the waiver:

We conclude that where a landlord chooses to enhance its offering by providing an on-site health club or exercise facility . . . there is no reason why the landlord may not protect itself by requiring the tenant, as a condition of use of the amenity, to execute the same waiver or release of liability that could lawfully be required by the operator of a separate, stand-alone health club or exercise facility.

Gary Kessler, Esq. Adams Kessler PLC

RECOMMENDATION: Although this case arose within the landlord-tenant context, courts often utilize similar standards when deciding analogous cases involving homeowner associations. Accordingly, boards may wish to consult with legal counsel about whether something similar would be appropriate for their association. To read the case in its entirety, see Lewis Operating Corp. v. Superior Court.

QUESTION: I have yet to find a set of governing documents where the office of president is defined as the “board president.” All governing documents state that the association has a “president” and the board has a “chair(man).” While the association president’s duties frequently include serving as chair(man) at board meetings, the “board” & the officers, including president, are two different entities. Why do professionals keep referring to the “association president” as the “board president”???

ANSWER: You’re right, most refer to the office as “board president.” Even worse, almost no one has the courtesy anymore to address the person as “Madam President” or “Mr. President” and rise when they enter the room. It is quite distressing. The same problem occurs with assessments. Most refer to them as “dues” while purists insist on “assessments.” I’ve seen members come to blows over the issue.

More Controversy. Then there is the controversy over CC&Rs. Some look with disdain on those who call their governing documents “CC&Rs” instead of the more formal “Declaration” (as in Declaration of Covenants, Conditions and Restrictions). And, there is the contentious “homeowners” versus the archaic “titleholders” dispute. And who could forget the hullabaloo over “homeowner associations” verses “homeowners associations”? Is it singular or plural? It makes me want to pick up a sign and join the Occupy Movement.

QUESTION: I am the spouse of an owner. Am I allowed to attend board meetings?

ANSWER: Unless your governing documents state otherwise, only owners (thus, “members”) have a legal right to attend board meetings.Civ. Code §1363.05. Having said that, I have never seen a board adopt a rule excluding spouses from board meetings. A misbehaving spouse can be excluded for disruptive behavior and that is entirely proper. However, a blanket rule banning all non-owner spouses would be a bit much.

OUTVOTED

QUESTION: I live in a 4-unit building. We are all on the board but when it comes to voting the majority always wins. It seems the other three always out-vote me and I have to comply with what they want.

ANSWER: I don’t know how to say this, but that’s how democracies work. Have you thought about voting with your feet?

QUESTION: According to the Davis-Stirling Act, three inspectors are appointed in handling and tabulating election ballots. We have already appointed three inspectors at our last board meeting. The members can mail their ballots to the management company (main inspector) or hand deliver to our association mailbox where it will be collected by our operations manager. Does this make the operations manager an inspector?

ANSWER: Actually, the statute calls for either one or three Inspectors.Civ. Code §1363.03(c)(1). Having ballots delivered to the manager does not make him/her an Inspector. The Davis-Stirling Act allows Inspectors of Election to specify locations where ballots (in sealed envelopes) may be mailed or hand-delivered. Civ. Code §1363.03(e)(2). At the designated meeting date and time, the envelopes are then opened in front of everyone and counted by the Inspector. Civ. Code §1363.03(f).

NO NEWSLETTER

There will be no newsletter next week. I will be out of town on business.

Adrian J. Adams, Esq.