By MICHAEL CHULAK
Question: The condominium above ours has a defective shower pan that leaks into our home. Our management company insists that we must deal directly with the person above us and will offer no assistance. Their position is that the association has no power to act. Are they correct, or should they take action to force the owner with the leaking pan to repair it?
Answer: Your association has the power to act whenever common area property is being damaged by a member of the association. If the defective shower pan is allowing water to wet the internal structure of the building, or common area, it may cause dry rot, electrical problems or other damage. Thus, the association has the power to act.
If your management company and association will not provide you with assistance, you may take legal action yourself. Before filing a suit against your neighbor, your attorney should review your CC&Rs. If a claim can be brought for the enforcement of the CC&Rs, you may be entitled to recovery of legal fees.
Question: The board of directors of our homeowners’ association rarely holds meetings. Our bylaws do not specifically address this issue. How often are boards required to have meetings?
Answer: Normally, the frequency of board meetings is set forth in the association bylaws, or in some instances, in the CC&Rs. If your governing documents are silent concerning the number of board meetings to be held each year, there is still a statutory minimum. The California Corporations Code requires nonprofit mutual benefit corporation boards to meet at least twice each year. Also, in accordance with California Civil Code §1365.5, a board of directors of an association must review its finances at least each quarter year. Consequently, a board must meet at least four times each year.
Whether a board of directors should meet more often than four times each year depends upon the amount of business to be conducted by the association.
Question: Our homeowners’ association is intending to amend its CC&Rs. Will it be necessary to obtain the approval of the California Department of Real Estate to any amendment?
Answer: Possibly. When a proposed amendment to CC&Rs affects the rights to ownership, possession or use of the subdivision interest or common area that is subject to the jurisdiction of the Department of Real Estate, at a time when the subdivider holds at least 25 percent of the voting power — that can vote for the proposed amendment — the amendment constitutes a material change, and the Department of Real Estate must then give its approval prior to any solicitation of the members for a vote on the proposed amendment.
Question: In order to reduce the number of renters within our townhome development, our board of directors is considering a move-in fee of $1,000 each time a person moves into our community. Is there any reason we cannot have such a rule?
Answer: Yes. The California Civil Code provides that “an association shall not impose or collect any assessment, penalty or fee in connection with a transfer of title or any other interest except the association’s actual costs to change its records...”
We interpret this law to mean that while an association may be reimbursed for its actual out-of-pocket costs incurred in connection with the move-in of a new resident — whether an owner or tenant — an association is not entitled to charge an arbitrary fee that is simply intended to discourage the turnover of residents.
Originally published in the Santa Monica Daily Press print edition on February 15, 2006. Read the original PDF.