Issuu

Whatâ€™s My Line: Community Association Risk Management p.6

Dealing with Short Term Rentals

Clubhouse â€“ Asset or Liability

p.14

Serving Community Associations

Will the Real Community Association Risk Manager Please Stand Up? p. 6

p.20

15 Things to Watch Out For When Repairing Your Paving p.24

E-mail and Communications Between Board Meetings p.30

July / August 2016 echo-ca.org

2016 ECHO educational calendar

2016 ECHO Educational Seminars

San Rafael

If you’ve ever wished that ECHO would hold a seminar closer to your association, chances are that we’ll be nearby during 2016. Don’t miss an opportunity to get the education you need with guidance from some of California’s top HOA attorneys and professionals. Take a look and mark your calendar. We can’t wait to see you there!

October 15 Monterey Educational Seminar (see page 19) Embassy Suites Monterey Bay Seaside, CA

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San Francisco

news from ECHO

News From ECHO July 2016 “Summertime, and the livin’ is easy…” Well, we know that’s not true for dedicated association board members. It’s the time when short term rentals can become a headache. When boards should be thinking about budgeting and caring for the assets of the community, like clubhouses and driveways. And you should consider what exactly your role is in the community, and how you and other board members should—and shouldn’t—communicate. It’s all here for you in this addition of the ECHO Journal. Check the Table of Contents on page 5, and head to the articles we’ve curated for you in this edition. The beginning of this summer kicked-off with our Annual Seminar in Santa Clara. It was a great success and we hope those of you who joined us enjoyed the educational sessions, exhibitor advice, lunch and prizes. For those who missed out, we’ll be back next year. We’ll give you plenty of notice here in the Journal. We would like to recognize the dedicated board members who participated in all four sessions of our HOA University track of educational sessions. You should be well prepared to take on your fiduciary responsibilities. Congratulations to: Jere L. Wilson, Stanly Anderson, Haro Bayandorian, William Carney, Joy Tom, John E. Rickard, Krishna Yalamanchi, John Corgiat, Katherine Mason, Janet Werkman, Timothy Villarica, Jun Wang, Wendy Khoshnevis, Angela Allberry, Eugene Moore, Stephanie Halliday, William Campbell, Nicholas Yannaccone, Larry William Miller, Andrea Ruelas, Marcos Ruelas, Melinda Price, Roger W. Murray, John Stremel, Jeb Bishop, Carey Lai, Charmele L. Magruder, Ronald L. Freier, and Kathy Napoli. We would also like to congratulate the winners of the three $100 Visa Gift Cards from participating in the Passport Program: Janet Agnew, Grant Ching and Laura Andrejk. Finally, we exist because of the selfless service to ECHO and our community of Members by volunteers. This year we are honored to recognize Carra Clampitt as ECHO’s Volunteer of the Year. Please see page 37 for more information about Carra. Enjoy your summer! Best,

Brian Kidney Executive Director July/ August 2016 | ECHO Journal

CONTENTS 6 24 30

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What’s My Line: Will the Real Community Association Risk Manager Please Stand Up? Community Association Risk Management

The Short Term Rental

The ECHO Journal is published bi-monthly by the Educational Community for Homeowners. The views of authors expressed in the articles herein do not necessarily reflect the views of ECHO. We assume no responsibility for the statements and opinions advanced by the contributors to the magazine. It is released with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Most governing documents regulate the minimum length of time a residence may be rented; this is usually no less than 30 days. Yet, with the advent of AirBnB and similar sites, owners have discovered a new income stream through short term rentals of their homes, often at the expense of the entire community.

Acceptance of advertising does not constitute any endorsement or recommendation, expressed or implied, of the advertiser or any goods or services offered. We reserve the right to reject any advertising copy.

Clubhouse — Asset or Liability?

Who is the community association risk manager? The board of directors is the Risk Manager. If the community association is properly formed, it can then manage its risk, which is the “shared common interest of the association members.” It can make enforceable rules; it can enforce those rules; it can enter into contracts; it can obtain a reserve study; it can set forth a policy to fund reserves; and, it can purchase insurance.

The clubhouse in a community should be the crown jewel of the development, a magnet that draws people together to participate in a wide variety of activities for individual enjoyment, recreation and socializing.

15 Things to Watch Out For When Repairing Your Paving There are mysteries buried under your roads and driveways. And even PG&E doesn’t know where every pipe is, so consider the following thoughts to protect your paving project.

E-mail and Communication Between Board Meetings Just because everybody does it, does not make it okay. I am talking about e-mail.

The ECHO membership list is never released to any outside individual or organization. ECHO 1960 The Alameda, Suite 195 San Jose, CA 95126 408-297-3246 Fax: 408-297-3517 www.echo-ca.org info@echo-ca.org Office Hours Monday-Friday 9:00am to 5:00pm BOARD OF DIRECTORS AND OFFICERS President David Hughes Vice President Karl Lofthouse Treasurer Diane Rossi

DEPARTMENTS

2016 ECHO Educational Calendar

News from ECHO

Secretary Carly Melius Directors Jerry L. Bowles John Garvic Adam Haney Stephanie Hayes David Levy

Robert Rosenberg Jeffrey Saarman Brian Seifert Wanden Treanor Steven Weil

Monterey Educational Seminar — October 15

ECHO Professional Directory

ECHO Event Calendar

Director of Marketing & Membership Carly Melius

Nominating Committee Seeks Candidates for ECHO Board of Directors

Director of Communications Tyler Coffin

ECHO Volunteers

ECHO Bookstore

Design and Production Design Site

Advertiser Index

Legislation at a Glimpse

Executive Director Brian Kidney

ECHO Mission Statement Serving Community Associations

July/ August 2016 | ECHO Journal

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Whatâ€™s My Line: Will the Real Community Association Risk Manager Please Stand Up? Community Association Risk Management By Joel W. Meskin, Esq., CIRMS

July/ August 2016 | ECHO Journal

s my father use to say:

â€œWhy is there never time or money to do something right the first time, but there is always time and money to fix it?â€? This old adage seems to apply far too often too many community associations we have seen around the country. At the core, a community association whether it be a condominium, single family homeowners association, cooperative, timeshare or commercial association, the structure is substantially the same.

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A Separate Individual Interest in real property

+ Common Interest shared with others

+ Formation of a legal entity Art. of Incorp. /Condo Statute—Legal Status By-Laws—Association Operating Manual Covenants, Conditions & Restrictions—The Rules

= An Operational Association with Association Members

If the community association is properly formed, it can then manage its risk, which is the “shared common interest of the association members.” It can make enforceable rules; it can enforce those rules; it can enter into contracts; it can obtain a reserve study; it can set forth a policy to fund reserves; and, it can purchase insurance. So, who is the community association risk manager? The board of directors is the Risk Manager. A typical provision of a community association declaration provides:

“Notwithstanding any management agreement entered into by the Association through its Board, the Board shall always retain and be responsible for the enforcement of each and every provision contained within this Declaration and the By-Laws, and shall not assign these responsibilities.”

What is the Community Association Risk? The two assets for which the Risk Manager must protect is the community association are the “lifestyle” of the association as set forth in the governing documents and rules developed by the members of the association over time. The second involves the physical assets of the community association common interest. The physical assets impacts both the property value of the association members real property interest and the lifestyle of the community as people give up certain control of their castle in exchange for the association guarantee that the physical elements will be maintained.

July/ August 2016 | ECHO Journal

Community Association Common Interest Risk Exposures

Wear & Tear

What is the role of the Community Association Risk manager? Many people throw around the term “fiduciary duty” or “duty of good faith and ordinary care” in the exercise of their duties. At the end of the day, the board of directors is judged pursuant to a “business judgment rule” to carry out

Unexpected Perils

= Risk

their duties to manage the association, their duties as the “ultimate” risk manager. In this role, the board has the duty to manage and they are authorized to delegate the details of the management and to retain professionals when the management issue or task at hand is beyond their area of general competence. One issue that boards need to be cognizant of is that many board members are themselves professionals with degrees and licenses such as attorneys, insurance professionals, engineers, accountants,

architects and even community association managers. These “board” members may be the top in their field and may know more than other professionals in the community. However, what the board needs to keep in mind are a couple of important factors. First, these board members are covered in their capacity as a board member and not in their “professional role.” The insurance protecting the board will not provide coverage for their “professional services.” Accordingly, on the slight chance that the board member is wrong in providing professional services, the association will be self insured which is taking on a liability exposure for the association it was elected to protect putting the association and its members’ assets at risk. If the board member who is giving professional advice accepts any compensation, he or she is no longer a volunteer and therefore may not be covered by the association indemnification provision and may also have cancelled any volunteer immunity protection. A second issue which is similar involves the community association manager hired by the association. It is very common and highly recommended for a community association to retain an independent management company to carry out the decisions and policies of the risk management board of directors. However, like the other professionals sitting as association members on the volunteer board, the community manager is covered for its community management services pursuant to a management agreement with the association or at the direction of the association board. However, if they pursue professional services for which they are not licensed, they will not be covered by the D&O policy where they are covered. More importantly, the

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community association manager will not be covered under its own errors and omissions policy, because the other professional services are not within the definition of their community management professional services. The problem here is even bigger, because the community association may have an indemnification requirement under the terms and conditions of the management agreement to defend, indemnify and/or hold harmless the manager when it conducts business at the direction of the board. The theme of most associations is to be as “lean & mean” as possible and try to push as much into the lap of the manager as it possibly can. Although this may seem expedient for all involved, the unintended consequences can be huge and could be a clear breach of the risk management board’s duty. This very often involves grey areas, but as an ultra conservative risk manager, attorney and insurance professional, I always recommend that the association with the fiduciary duty or duty of ordinary care err on the side of caution. If the question arises, the professional should be hired.

The community association risk management team in our opinion looks as follows:

Risk Management Team

As most governing documents provide, the community association board is ultimately responsible for all community association decisions. The role of the

board is to make decisions, make policy, and make rules in order to protect the community association assets and to delegate the necessary tasks or jobs to make those decisions and policies get accomplished. In the normal course, the majority of the activities that are required to be accomplished on a day to day basis are covered in the management agreement and fall within the category of “contractual duties.” As with most contracts, not everything can be anticipated. Accordingly, there are extra-contractual duties delegated to the manager and these should be documented as amendments to the management agreement, especially where most director and officer liability policies may only provide coverage pursuant to a written management agreement. Finally, most management agreements provide for the manager to have authority up to certain monetary limits to enter into contracts with vendors on behalf of the association. The board also needs to retain “professionals” for certain decisions. Again, the key reason for this is because the

July/ August 2016 | ECHO Journal

licensed professionals have their own professional liability coverage. This should be an absolute requirement before engaging a professional. The goal is to hire the best, but even the best make mistakes and they should have their own professional liability to stand behind their work. This is rarely a concern, but it is part of the board risk manager due diligence and it is critical to get this in writing. The final piece of the risk management team is volunteers. I contend that the board only functions as a “body” at a properly noticed board meeting. The board members very rarely have any duties outside of the board meeting other than those directly given to them by the board as a whole during the properly notice board meeting. After the task is delegated to the board member, when he or she leaves the board meeting, he or she is acting as a “volunteer.” The pain and suffering of many board members and their boards is when they forget this concept and entertain issues of association members outside the board meeting and try to resolve those issues for which they really do not have the authority. Most association member issues should be directed to the manager for handling and if it is an issue that is not within its authority, the manager should bring it to the board in the normal course of business. If there is an emergency, the unit owner should call 911. When the board member exits the board meeting, he or she should remove their board hat.

How is the Community Association Risk Management Program Funded? The board risk manager has the two key exposures to protect in addition to the lifestyle issues. The lifestyle issues are protected by enforcement of the governing documents. The other two categories are “Wear & Tear” and “unexpected perils.”

Wear & Tear The keystone to the “Wear & Tear” exposure is the Properly Completed 12 echo-ca.org

Reserve Study. In a perfect world, this was originally done by the Developer, or the “Transition Team” at the time control of the association was turned over to the members of the association. There are some developers who have the mission that they do not want to sell you “a house”, but they want to sell you “all of your houses.” Accordingly, it is in their best interest to have a transition study done. I recommend that they should commission an independent reserve/transition study on behalf of the association. If there are any issues, knowing them as soon as possible is better. The older we get, the clearer it becomes that the sooner we know of an issue, the easier and cheaper it is to fix. The reserve study when done properly is the blueprint of the wear and tear portion of the risk management program. This is also key for the insurance professional so he or she is able to use it to put together the insurance program and to use it as a check and balance against a property walk through, a review of the existing insurance program, its review of the governing documents and the corresponding insurance requirements and its discussions with the Board Risk Manager and in most cases the community manager. Having handled the thousands of director and officer claims that we have over the years, we can often see their genesis from the absence of a properly completed, updated and funded reserves study. In our opinion, it is worth its weight in gold. The reserve study is the key to setting an association’s “budget.” This should present the basis of what is necessary to properly operate the association on a daily basis and the anticipated cost of taking care of “wear & tear.” We can have lengthy debates regarding whether it is better to fund a reserve study as close to 100% as possible or whether we should leave it to the owners at the time things need to be fixed. The key to community association risk management is “certainty” and the ability to avoid as many surprises as possible. The goal, contrary to the belief of many is not to keep assessments as low as possible. Rather, the board risk manager is obligated to protect the assets of the association and place the association’s interests above his or her own interests. We have never seen any governing documents that indicated

that low cost is a goal. Rather, the goal is to protect the assets.

Unexpected Perils Unexpected perils happen! Many perils are insurable and there are some that are not insurable. In addition, some items that are insurable have a heavy price tag. California has a big earthquake exposure. Florida and Texas have a hurricane exposure. In our humble opinion, community associations must obtain this coverage notwithstanding price based on the duty to protect the association interests. In reality, this does not always happen. The duty of the board risk manager is to obtain the best coverage available. As a board risk manager, the board needs to use a community association insurance professional to do the evaluation and to make a proposal. In our opinion, “shopping insurance” does not mean looking for the best policies available (which for many translates to the cheapest), but to shop for the appropriate community association insurance professional. If they are truly a professional in this industry, they will know the best markets available. If you have many insurance brokers going to the market, you may very well get a proposal from various insurance professionals that is not the best, but is the best that that individual insurance professional could get, because another insurance agent you are allowing to “bid” has blocked the first one from a market. If you do not like what the insurance professional has done, if you do not like the service prior and after the insurance is obtained, fire him or her and interview another. Here is what the board risk manager should do.

Select a Community Association Insurance Specialist to Develop the Insurance Portion of the Community Association Risk Management Program

• Shop for the Community Association Insurance Specialist (licensed insurance agent), not the product • How long has the insurance professional been involved with community associations? • How many associations does the professional handle, including ones like yours? • Obtain references to contact neighboring associations handled by the specialist? • Ask what they need to analyze your program (if they do not ask for your governing documents, if they do not ask to review your existing policy, or if they do not ask if you have a reserve study, say thank you and interview your next candidate)

Their authority is to make the decision. If they believe the decision is beyond their level of understanding, they can seek assistance from a community association insurance professional. Once the board sits with the insurance professional, the mystery and complexity of insurance is often overcome. If not, they probably need a different professional. Again, many managers can put insurance professionals to shame with their knowledge and experience, but do they have the errors and omissions coverage to back up their advice? When the board risk manager is obtaining proposals from multiple insurance professionals, if the board chooses to go with that strategy, they should request the proposals without the pricing. Accordingly, the board can go through the multiple proposals, determine which is appropriate to protect the association assets. After they have determined which best protects the community association’s assets, they can then consider the pricing and make the cost benefit analysis as to whether it

is in the best interest of the association to be self insured for certain perils and roll the dice that no claim will happen.

Conclusion The board is the community association risk manager. The board’s duty is to place the interest of the association above its own in order to protect the assets of the association. The board makes the decisions and delegates to its risk management team to effectuate the risk management plan. The community association is a business and the job as a board member should not be accepted lightly or with the idea that you are just rubber stamping the work done by someone else.

Joel Meskin, Esq., CIRMS, CCAL is the V.P. of Community Association Insurance & Risk Management at McGowan Program Administrators

• Ask how many management companies they currently work with • Ask if they have any community association or relevant insurance designations • Ask if they participate in any industry organizations such as ECHO • Ask what roll they will play in the event of a loss • The professional must present to the board in person – end of story! • Ask what the community association insurance specialist will do once the program is put together, i.e. explain the requirements of each policy in the event of a loss, and provide education. The big issue we come across with the board risk manager is that they try to delegate their insurance responsibility. July/ August 2016 | ECHO Journal

The Short

By Victoria Cohen

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Term Rental

ost governing documents regulate the minimum length of time a residence may be rented; this is usually no less than 30 days. Yet, with the advent of

AirBnB and similar sites, owners have discovered a new income stream through short term rentals of their homes, often at the expense of the entire community.

July/ August 2016 | ECHO Journal

GET LEGAL COUNSEL:

f your community is considering permitting or prohibiting short-term rentals, you must consult with the association’s legal counsel before taking any action. The governing documents of each community vary. Association’s legal counsel must advise the Board how to proceed. Do not try to do this alone.

To Permit or Not To Permit Short Term Rentals For some communities, short-term rentals are OK. The owners want to use their dormant property for short term rental and income, the governing documents permit short-term rentals, and the community is in agreement. For other communities, short-term rentals mean noisy parties, damage to common area, and a general unease of having strangers in your community.

Local Regulations Permits and Taxes: Contact the local government agency in your area that regulates or collects taxes on short-term rentals. Municipalities absolutely want payment of the transient occupancy tax, but not all municipalities currently require homeowners to acquire any sort of “permit” to run a short-term rental. This may be changing as more homeowner complaints flood City offices.

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Allowing Short Term Rentals If your governing documents permit short-term rentals, and your community wants short-term rentals, my suggestion is that that the Board, with the assistance of community input, establish a ShortTerm Rental Policy, that includes the following, and whatever else serves the needs of your community. This document must go to legal counsel for review.

Insurance Notify the association’s insurance broker. The community’s insurance rates may go up, and the board may want to pass that cost on to the investor owners. Your insurance agent may suggest, or require, that the investor owners carry additional insurance.

Prohbiting Short Term Rentals

Rental Information Owner provides the following information to management or Board representative:

Rental Information: • Start and End dates. Contact Information: • Name and Phone of person renting unit. Fee •

A reasonable fee may be established by the Board to cover additional costs incurred by rental properties <make it realistic>.

If you live in a community with governing documents that prohibit short-term rentals, and you want to enforce that policy, I suggest the board and community volunteers draft a strong policy reiterating the prohibition of short term rentals, and outline how violations will be handled. Examples of possible rules, and fine schedule, pertaining to short-term rental violations:

Units renting for less than <number> of days are considered in violation of <CC&R number>.

Know Before You Rent:

Rental for less than <> number of days has the following fine schedule:

Short-Term Rental Agreement: • The rental agreement shall include rules, as established by the Board/Community, i.e. noise hours, pool use, out door fires, alcohol in the common area, etc. Again, this is the type of information your attorney helps you determine is applicable, and legal, for your community.

Fines: •

The Short-Term Rental Policy permits the board to assess significant fines against the homeowner for failure to comply with the Short-Term Rental Policy.

Posting home on internet site (or with an agent)

• •

First offense: Warning Second offense: up to $1,000 fine

NOTE: Legal counsel is informed of the repeat violation; legal action may occur.

• •

Third offense: up to $2,000 fine Fourth offense: up to $4,000 fine

Violation of Other Community Rules

Even if proof of short term rental is not substantiated, but other rules violations transpire as a result of the unit owner’s guests:

•

Police called to residence: up to $500 fine; may double with each violation

•

Noise: up to $500 fine; may double with each violation

•

Trash in common area: up to $250 fine; may double with each violation

•

Damage to common area: up to $500 fine and cost of repairs; fine may double each violation

Important Make sure your community supports the board’s recommendation/decision by asking for their input before implementation a short-term rental policy.

Remember After drafting your policy, send the policy to the association’s HOA attorney for review, and probably significant edits. If you have implemented short-term rental policies in your community, you are invited to respond to this posting with your stories.

Victoria Cohen is principal of Victoria Cohen Consulting, Meeting Minutes Matter. She provides HOA meeting minutes & parliamentarian services Victoria can be reached at victoriacohen2020@gmail.com.

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FREE Attendance for ECHO HOA Members!

Monterey Educational Seminar Saturday, October 15, 2016 8:30 AM to 12:30 PM

Yes, reserve _____spaces for the ECHO Monterey Seminar Amount enclosed: $______(attach additional names) Name: Email Address:

Visit echo-ca.org/events for the latest information and online registration. ADDRESS

HOA or Firm: Address: City: State:

SAVE THE DATE!

Zip:

Embassy Suites 1441 Canyon Del Rey Blvd., Seaside, CA 93955

Phone: Visa/Mastercard No. Exp. Date: Signature: Return with payment to: ECHO, 1960 The Alameda, Ste 195, San Jose, CA 95126 Orders will not be processed without payment in full. Fees for cancelled registrations will not be refunded. Phone: 408-297-3246; Fax: 408-297-3517

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PRICE

FREE for Pre-registered ECHO HOA Members $50 â€“ Nonmembers and Walk-ins July 2015 July/ August 2016 | | ECHO ECHOJournal Journal

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CLUBHOUSE â€“

By Mary Anne Sayler

ASSET or LIABILITY?

he clubhouse in a community should be the crown jewel of the development, a magnet that draws people together to participate in a wide variety of activities for individual enjoyment, recreation and socializing.

The clubhouse should also serve as an extension of one’s living room and provide owners and prospective owners with facilities that reflect the quality of life and high standards that have been set for the community. The more owners feel part of the community, the greater the pride and the care that they will take in protecting the property. Many CIDs have a community facility that, in some cases, was designed to serve as a sales office. No thought was given to providing the eventual owners with an attractive, comfortable place to enjoy a variety of activities.

How Do You Join ECHO? Over 1,700 members benefit each year from their membership in ECHO. Find out what they’ve known for years by joining ECHO today. To apply for the membership, sign up online at www.echo-ca.org. For more information about membership and ECHO, call us at 408-297-3246 or visit the ECHO website.

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Even in the cases where some design thought was given to the future use, the recreational needs of the community may have changed. And time takes its toll. The furnishings have been neglected – they are worn and unattractive – and therefore use of the clubhouse is minimal. Many of these clubhouses are used for board meetings only. This not only sets up a “them and us” feeling between the board and the owners, but it is totally contrary to the community atmosphere desirable in a development.

However the situation is far from hopeless! Once the Board of Directors decides the clubhouse needs renovation, several considerations need to be taken into account:

What is the budget for this upgrade? Does the project need to be phased to coincide with replacement reserves?

Compile a list of present uses and determine how these activities could be better served. List potential uses to offer a wider range of activities to the present residents.

Consult with professionals to determine a realistic Master Plan that can be developed at one time or in phases.

The design professional will develop a design concept to include color, finishes and furnishing options that will maximize the flexibility of the space, and will select materials that assure ease of maintenance. Renovating the clubhouse includes making space more flexible, more attractive, and more easily maintained. As an example, flooring accented with area carpets over vinyl or wood would allow for easily changing the function of the room by rolling up the carpet and using the space for anything from art to exercise. Folding tables and stacking chairs also contribute to a flexible space.

A beautifully renovated clubhouse, welcoming and in keeping with the exterior architecture, will add value to each unit. If prospective owners are shown a dark and unattractive clubhouse, it is difficult for them to imagine themselves in the setting, and thus it detracts from the unit that they may be interested in purchasing. As a case in point, the clubhouse at a major condominium was suffering from poor lighting as well as dated and worn furnishings. The spaces were not functioning for the association’s recreation programs. Despite working within a tight budget, the designer retained by the association lightened the area by selecting a bright and light palette of wall color, fabrics and finishes that will withstand long-term wear and, at the same time, appear comfortable and attractive. The redefined space now accommodates board meetings more adequately and permits an increased variety of activities to be enjoyed. Clubhouses are an important amenity to a community. If they have been allowed to deteriorate, they have moved from being an asset, adding value to each unit, to being a liability. Many boards of directors take the view, “No one uses the facilities anyways.” This is understandable when the clubhouse is a depressing, unwelcoming space instead of a cheerful haven. But that’s not the way it has to be or should be. One final consideration is the role of the clubhouse as a profit center. It is a demonstrable fact that the more attractive the clubhouse is, the more homeowners will want to use it, not only for the associationscheduled activities but for their own social gatherings. This is what provides rental income form the space, and adds handsomely to that all-important bottom line! Use this important association amenity to offset some of its operational costs.

If the clubhouse is not an asset then it is a liability! Mary Anne Sayler is the founder and president of Sayler, Inc., San Mateo, CA , a marketing and design consulting firm. Sayler Inc. is a member of ECHO.

July/ August 2016 | ECHO Journal

15 Things to Watch Out For When By Richard Tippett 24 echo-ca.org

Repairing Your Paving July/ August 2016 | ECHO Journal

15 Things to Watch

Out For When Repairing Your Paving

PG&E will not find all of their utilities...

and may no longer have records of where the lines are. Be sure to retain a utility-finding company such as USA to locate and mark all buried pipe and conduit.ty.

The utility finder will not find all of the buried water lines,

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particularly small irrigation lines, because not all will have a tracing wire attached to them. Know where your water shutoff valves are located and have someone standing by to turn off water.

The utility finder will not find all of the smaller conduits carrying electricity to irrigation valves and area lighting.

making the paving contractor responsible for all damage to underground utilities of all kinds. This will ensure that they exert their best efforts to locate all buried water, gas and electrical/control wiring that are in the areas to be worked on.

Shut off all lawn and garden irrigation to the property at least 72 hours before...

Know where your common area lighting and irrigation control panels are located.

the start of paving or sealcoating work. This gives the ground and paving time to dry before work begins.

Be sure to include verbiage in the paving repair contract...

There may be wet areas of soil beneath the paving...

that cannot be properly paved over and that will not be found until the paving is removed. Be sure to specify the type and thickness of new base material that must be used to replace the existing, too-wet-to reuse material.

Advise all residents that they must keep their cars...

either in their garages or out of the complex from early morning until evening so that paving repairs or coating can be done.

In spite of your best efforts to notify everyone, one or more people will not remove their cars from the areas...

What We Can Do For You:

to be repaved or sealcoated. Have your towing company “stand by” on the mornings that work is to be done, so that cars in the way of the work can be removed. Your paving contractor will bill you for any delays caused by cars in the way, or may simply spread the sealcoating around them, leaving a “bare spot.”

In spite of your best efforts, someone will drive through the soft asphalt or...

wet sealcoating or striping and make a mess of the new work. Make provisions for repair of such damage when you negotiate with the selected contractor.

Schedule the work to be done on days... July/ August 2016 | ECHO Journal

when there is no garbage or recycle pickup.

curbs and gutters before repairing your asphalt paving.

Schedule the sealcoating to be done in the...

morning so that the coating has time to cure before residents return in the evening.

In large complexes, schedule the...

work in phases so that, as much as possible, residents can still park within the complex.

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Remove and replace all concrete drainage swales,

Be sure to contact your local building department and...

ask about any permits and any special paving requirements that they have. Many cities do have special requirements.

Consider hiring a civil engineer or construction...

manager to handle all the details of the work, and ensure that everything goes smoothly. Richard Tippett is the Principal at ERTECH, Inc., a construction management company specializing in condominium reconstruction. Established in 1979, they have over 36 yearsâ€™ experience with the maintenance and repair challenges that associations face. www.ertechinc.com

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E-MAIL AND COMMUNICATION BETWEEN BOARD MEETINGS By Tom Fier, Esq.

July/ August 2016 | ECHO Journal

ust because everybody does it, does not make it okay. I am talking about e-mail. It has consumed our society, along with texting. According to studies, the number of e-mails sent and received each day approaches 100 billion. That’s a staggering amount. However much everyone else is doing it, for homeowners association Boards, it is not appropriate, except in emergencies.

The key to the use of e-mail by Boards of Directors is that they cannot take any action on any item of business outside of a properly noticed meeting. Members of the Board must be careful not to violate Civil Code § 4090 which defines a “Board Meeting” as “a congregation, at the same time and place, of a sufficient number of directors to

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establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.”

Civil Code § 4910 prohibits e-mails, except in two situations:

an emergency Board meeting, held with written consent; and

if there is a delegation of authority to a property manager or board member(s) (less than a quorum). This means that the action of the delegee (person with the authority) is not considered an “item of business” and does not have to comply with Davis-Stirling (Civil Code § 4155).

Caution: e-mail strings that involve a quorum or more of the Board violates Davis-Stirling.

Does talking around the pool on a Sunday by Board members constitute a meeting? Technically, yes. Don’t take any action on anything (unless delegated to someone). Informality can lead to violations of Davis-Stirling. What is an item of business? Civil Code § 4155 defines this as any action within the authority of the board, except those actions that the board had validly delegated. Can you hold executive sessions of the board by e-mail? Yes,if it is an emergency; otherwise no.

Recommendation: avoid e-mail strings, they can create, inadvertently, a quorum of the board and invalidate the “action”. While e-mails are prevalent throughout society, this is an example of where the law is behind advances in technology. Just be careful to avoi d inadvertent violations through e-mail strings. Tom Fier is a San Mateo attorney who specializes in Homeowner Association law. He has written numerous articles for ECHO.

ECHO Professional Directory

Need Expert Help? Check Out ECHOâ€™s Directory All of our Professional ECHO Members specialize in services for HOAs. Choose from more than 250 companies in over 50 categories including: 73 MANAGEMENT COMPANIES 30 ATTORNEYS 21 ACCOUNTING FIRMS VISIT THE PROFESSIONAL DIRECTORY ON THE ECHO WEBSITE!

www.echo-ca.org

Accountants/CPAs Animal Control Services Arbitrators & Mediators Architects/Architectural review Asphalt Repair & Paving Assessment Collection Services

Attorneys Banking Services Community Association Consulting Concrete Products & Services Concrete Repair Construction Manage- ment Consultants Consulting Electrical Services Fencing Gates & Doors Financial Services Fire Alarms Fire Sprinklers General Contractors Gutters Insurance Services Janitorial & Cleaning Services

Landscape Design Services Landscape Maintenance Leak Detection Maintenance & Repairs Management Company Services Masonry Other Paint Manufacturer & Consultant Painting Contractors Pest Control Services Plumbing & Boiler Repairs Pool Maintenance & Services Pool Repair & Resurfacing Services

Power Washing & Steam Cleaning Reserve Study Firms Restoration & Remediation Services Retaining Walls Roofing Contractors Roofing Products Security Services & Systems Sprinkler Repair Towing & Parking Services Tree Services Utility Auditors Water Conservation Water Management & Services Waterproofing Window

July/ August 2016 | ECHO Journal

ECHO event calendar

RESOURCE PANEL CALENDAR ECHO Resource Panels meet during lunch on weekdays to enable managers, professionals and board members to hear about important topics presented by experts in the industry, and share experiences and issues. The meetings are open to all ECHO members, and those interested in learning about ECHO, offered in a casual atmosphere where the cost of attendance is the price of your lunch. The sessions last about an hour and a half. Check-in with the ECHO Panel Secretary for details and to register.

Please join us: DATE

PANEL LOGISTICS

PANEL SECRETARY

TOPIC

July 11, 11:45 a.m.

Central Coast Resource Panel Michael’s on Main 2591 S Main St., Soquel

Ann Thomas 800-537-4098 ext.7530

TBD

July 14, 11:45 a.m.

North Bay Resource Panel Contempo Marin Clubhouse 400 Yosemite Dr., San Rafael

Denise Wolford, CCAM 415-458-3537

Before You Paint

July 21, 11:45 a.m.

Wine Country Resource Panel Serv-Pro 377 Blodgett St., Cotati

Pam Marsh 415-686-9342

Pools

Aug. 10, 11:45 a.m.

South Bay Resource Panel Heritage Bank of Commerce Kiosk 150 Almaden Blvd, San Jose

Geri Kennedy 408-398-4227

TBD

Aug. 12, 11:45 a.m.

East Bay Resource Panel Massimo Restaurant 1603 Locust St., Walnut Creek

Cindy Wall, PCAM 925-830-4580

TBD

Sept. 1, 11:45 a.m.

North Bay Resource Panel Contempo Marin Clubhouse 400 Yosemite Dr., San Rafael

Denise Wolford, CCAM 415-458-3537

TBD

Sept. 13, 11:45 a.m.

Central Coast Resource Panel Michael’s on Main 2591 S Main St., Soquel

Ann Thomas 800-537-4098 ext.7530

TBD

Sept. 15, 11:45 a.m.

Wine Country Resource Panel Serv-Pro 377 Blodgett St., Cotati

Pam Marsh 415-686-9342

TBD

REGULARLY SCHEDULED RESOURCE PANEL MEETINGS PANEL

MEETING

LOCATION

Maintenance

First Wednesday, Even Months

ECHO Office, San Jose

North Bay

First Thursday, Odd Months

Contempo Marin Clubhouse, San Rafael

East Bay

Second Friday, Even Months

Massimo Restaurant, Walnut Creek

Accountants

Second Monday, Odd months

Scott’s Seafood Restaurant, Oakland

Central Coast

Second Tuesday, Odd months

Michael’s On Main, Soquel

South Bay

Second Wednesday, Even Months

TBD

Wine Country

Third Thursday, Odd months

Serv-Pro, Cotati

Legal

Quarterly

Varies

34 echo-ca.org

Nominating Committee Seeks Candidates for ECHO Board of Directors

he Nominating Committee for the ECHO Board of Directors is seeking expressions of interest from persons who are interested in serving on the ECHO Board of Directors. Four positions on the board will be up for election at the ECHO Annual Meeting that will be held in November. These positions are for three-year terms. Current directors whose terms expire in 2015 are John Garvic, David Levy, Karl Lofthouse, and Wanden Treanor.

Board members are expected to attend four three-hour board meetings held each year, generally at the ECHO office in San Jose. Each board member also serves on one or more committees that hold regular meetings

throughout the year. In addition board members are expected to attend the Annual Meeting and a two-day board retreat each November. Board members receive no reimbursement for these activities. Nominees must also be members of ECHO, either through their homeowners association or business and have thorough familiarity with the organization and the CID industry. Persons interested in being considered for nomination should obtain and complete a nomination and qualifications form, available by request from the ECHO office. Every potential candidate, including incumbents, must submit a full form. All completed forms must be submitted to the ECHO office no later than August 15, 2016, to be considered by the nominating committee. Those requesting nomination may be requested to interview with the nominating committee. The committee will meet in late August to prepare recommendations for board consideration. July/ August 2016 | ECHO Journal

ECHO honor roll

ECHO HONORS VOLUNTEERS Resource Panel Chairs

Seminar Speakers

Recent Contributing Authors

Accountant Panel Adam Haney, CPA 888-786-6000 x317

East Bay Marion Aaron, Esq. Charlotte Allen William Countner Marc Dunia Stephanie Hayes, Esq. David Hughes David Levy, CPA Alex Noland, Esq. Jordan O’Brien, Esq.

August 2015 Tyler P. Berding, Ph.D., J.D. Chris Sigler, B.S.C.E., C.D.T. Charlotte Allen Julie Adamen Robert Booty

Central Coast Panel John Allanson 831-685-0101 East Bay Panel Cindy Wall, PCAM, CCAM 925-830-4580 Legal Panel Mark Wleklinski, Esq. 925-280-1191 Maintenance Panel Judy O’Shaughnessy 408-839-6926 North Bay Panel Diane Kay, CCAM 415-846-7579 Stephany Charles, CCAM 415-458-3537 South Bay Panel Susan Hoffman, PCAM 510-683-8614 Wine Country Panel Pam Marsh 415-686-9342 Legislative Committee Paul Atkins Jeffrey Barnett, Esq. Sandra Bonato, Esq. Jerry Bowles Oliver Burford Joelyn Carr-Fingerle, CPA Chet Fitzell, CCAM John Garvic, Esq., Chair Roy Helsing Geri Kennedy, CCAM Wanden Treanor, Esq.

36 echo-ca.org

Annual Seminar Julie Adamen John Allanson Tyler Berding, JD, PhD William Countner Rolf Crocker Marc Dunia Lisa Esposito John Garvic, Esq. Sandra Gottlieb, Esq. David Hughes Michael Hughes, Esq. David Levy, CPA Julie Mouser, Esq. Sharon Pratt, Esq. Ann Rankin, Esq. Rob Rosenberg Deon Stein, Esq. Steven Weil, Esq.

September 2015 Charlotte Allen Brenda L. LeClair, CMCA Debra J. Oppenheimer, Esq. Steve Castle, CMCA, PCAM John Schneider October 2015 Karl Lofthouse Susan Green Thomas J. Connelly Adrian Adams, Esq. Julie M. Mouser, Esq. Nov/Dec 2015 Beth A. Grimm, Attorney Karl lofthouse James H. Ernst, CPA, MS-Tax Tim Polk Julie Mouser, Esq. Jan/Feb 2016 Beth A. Grimm, Attorney Matt Haulk, Esq. Larry J. Pothast, PCAM, CCAM David J. Larsen, Esq. Jeffrey A. Barnett, Esq. March/April 2016 Julie Adamen Neal Back, CPA Harvey Radin David Kuivanen, AIA Joel Meskin, Esq., CIRMS, CCAL May/June 2016 Steven S. Weil, Esq. Graham Oliver Wayne Scott Steve Saarman Jordan M. O’Brien

Carra Clampitt, CCAM ECHO 2016 Volunteer of the Year

We are excited to announce that Carra Clampitt is ECHOâ€™s 2016 Volunteer of the Year. Carra has supported ECHOâ€™s mission to serve community associations for 30 years. She is a tireless advocate for independent board education, encouraging her HOA clients to attend ECHO events. She is also a frequent seminar speaker and Journal author. As a manager, Carra is recognized throughout our industry for her experience and leadership.

Carra is now the Northern California Vice President of Eugene Burger Management Corporation. She currently holds credentials including the Certified Community Association Manager (CCAM), Association Management Specialist (AMS), Large Scale Community Management Certificate, Portfolio Management Certificate, and a California Real Estate Salesperson License.

Thank you, Carra!

July/August August 2015 2016 || ECHO ECHO Journal Journal

BOOKSTORE The ECHO Bookstore is your source for publications providing essential information for HOA Board Member service obligations. Order online at echo-ca.org or fill out form on the facing page.

NEW ON TI I D E

Robert’s Rules of Order Member Price: $7.50 Non-Member Price: $12.50 A step-by-step guide to the rules for meetings of your association, the current and official manual adopted by most organizations to govern their meetings. This guide will provide many meeting procedures not covered by the association bylaws or other governing documents.

2016 Condominium Greenbook Member Price: Non-Member Price:

$17.00 $25.00

This companion to the Condominium Bluebook is an in-depth guide to all aspects of association finances, including accounting methods, financial statements, reserves, audits, taxes, investments and much more. Not for the accounting novice, this is a tool for the treasurer or professional looking for specific information about association finances.

Reserve Fund Essentials Member Price: Non-Member Price:

$18.00 $25.00

This book is an easy to read, must-have guide for anyone who wants a clear, thorough explanation of reserve studies and their indispensable role in effective HOA planning. The author gives tips to help board members mold their reserve study into a useful financial tool.

The Condo Owner’s Answer Book Member Price: Non-Member Price:

$15.00 $20.00

An excellent guide to understanding the rights and responsibilities of condo ownership and operation of homeowner associations. The question-and-answer format responds to more than 125 commonly-asked questions in an easy to understand style. A great resource for newcomers and veteran owners.

Construction Defect Claims Member Price: Non-Member Price:

$19.95 $25.00

New buildings can conceal extensive faults. It’s a board’s worst nightmare—rainstorms damage buildings and bring owner complaints. Is legal action necessary? With this new book, you’ll learn about the resolution process for construction problems, and how to handle complex claims.

Home and Condo Defects Member Price: Non-Member Price:

$12.95 $17.95

Construction defect litigation can be confusing, expensive and fraught with legal pitfalls. This eye-opening guide, written by accomplished construction-defect attorneys, is an essential tool for board members who need to understand the legal process.

38 echo-ca.org

Condominium Bluebook 2016 Edition Member Price: $17.00 Non-Member Price: $19.95 This well-known compact guide for operation of common interest developments in California now includes a comprehensive index of the book and a chapter containing more than 200 frequentlyasked questions about associations, along with succinct answers.

ciation o s s A unity Book Comm Statute dition 2014 E

Publications to answer your questions about common interest developments Order Online at www.echo-ca.org

Bookstore Order Form TITLE

Board Member Handbook Member Price: Non-Member Price:

EDUCATIONAL COMMUNITY FOR HOMEOWNERS 1960 THE ALAMEDA, STE 195, SAN JOSE, CA 95126 PHONE: 408-297-3246, FAX: 408-297-3517

QUANTITY AMOUNT

$15.00 $25.00

This publication is the essential guidebook for HOA Board members, dealing with governance, finances, insurance and maintenance issues. Revised and updated in June 2012.

SUBTOTAL CALIFORNIA SALES TAX (Add 8.625%) TOTAL AMOUNT

Yes! Place my order for the items above. Check

Visa

MasterCard

Credit Card Number Exp. Date

Dispute Resolution in Homeowner Associations Member Price: Non-Member Price:

$15.00 $25.00

This publication has been completely revised to reflect new requirements resulting from passage of SB 137.

Signature

Name (please print) Association (or company) Email Address City

State

Zip

Daytime Telephone

July/ August 2016 | ECHO Journal

directory updates

All current listings may be found in our Professionals Directory available online at www.echo-ca.org.

New Members The Bridgeport Company 2303 Camino Ramon Suite 201 San Ramon, CA 94583 Contact: William Bavelas Tel: (925) 824.2888

Frank Bonetti Plumbing, Inc. 20878 Rutledge Road Castro Valley, CA 94546 Contact: Dan Bonetti Tel: (510) 582.0934

Community Associations Managers International Certification Board (CAMICB) 6402 Arlington Blvd., Suite 510 Falls Church, VA 22042 Contact: Sara B. Duginske M.S. Tel: (800) 845.4394

HMI Enterprise, Inc. 320 Turtle Creek Court, Suite B San Jose, CA 95125 Contact: Stan McIntyre Tel: (408) 781.1412

DaVinci Roofscapes 13890 W. 101st Street Lenexa, KS 66215 Contact: Chris Marshall Tel: (913) 599.0766

Principle Association Management, Inc. 39 California Ave. Suite 105 Pleasanton, CA 94566 Contact: Christina McCandless Tel: (888) 747.5548

Become an ECHO Professional Member and receive the benefits of membership. To learn more, visit our membership page at www.echo-ca.org

40 echo-ca.org

advertiser index

about ECHO

Ace Property Management..................23 www.acepm.net

Heritage Bank of Commerce...............26 www.heritagebankofcommerce.com

Applied Reserve Analysis....................22 www.appliedreserveanalysis.com

Hughes Gill Cochrane, P.C....................23 www.hughes-gill.com

Benjamin Moore Paint & Company...18 www.benjaminmoore.com

Levy, Erlanger & Company..................29 www.hoa-cpa.com

Berding Weil..........................Back Cover www.berding-weil.com

Malarkey.................................................7 www.malarkeyroofing.com

Bridgeport Co........................................13 www.bridgeportco.com

Pacific Utility Audit, Inc. .....................27 www.PacificUtilityAudit.com

Community Management Services......8 www.communitymanagement.com

PML Management Corporation..........18 www.pmlmanagement.com

Cornerstone Community Management.........................................10 www.cornerstonemgt.biz

Statcomm..............................................11 www.statcomminc.com

Eugene Burger Management..............28 www.ebmc.com Forster Construction Management.....22 www.forstermanagement.com

Union Bank.............................................9 www.HOAbankers.com White & MacDonald, LLP....................27 www.wm-llp.com

WHAT IS ECHO? Serving Homeowners to Build Strong Community Associations The Educational Community for Homeowners (ECHO) is a nonprofit membership corporation dedicated to assisting California homeowner associations. ECHO provides help to homeowner associations on many fronts: finances, legal issues, insurance, maintenance and management. Members receive help through conferences, trade shows, seminars, online education, a monthly full-color magazine and discounted publications.

Who Should Join ECHO? If your association manages condominiums or a planned development, it can become a member of ECHO and receive all of the benefits designated for homeowner associations.

Benefits of Association Membership • Subscription to bi-monthly magazine • Members-only online education • Updates to the Association Statute Book • Frequent educational seminars • Special prices for CID publications • Legislative advocacy in Sacramento

ECHO Membership Dues Association Membership HOA 2 to 25 units...........................$130 HOA 26 to 50 units.........................$180 HOA 51 to 100 units.......................$275 HOA 101 to 150 units.....................$375 HOA 151 to 200 units.....................$450 HOA 201 or more units..................$575 Professional Membership.................$500 Association Management Membership.......................................$500 Individual Membership.......................$75 Journal Subscription............................$15

How Do You Join ECHO?

Office 1960 The Alameda, Suite 195 San Jose, CA 95126-2308

Over 1,700 members benefit each year from their membership in ECHO. Find out what they’ve known for years by joining ECHO today. To apply for the membership, sign up online at www. echo-ca.org. For more information about membership and ECHO, call us at 408-297-3246 or visit the ECHO website.

August August2014 2013 || ECHO ECHO Journal Journal February July/ 2016 Journal

41 41 41

legislation at a glimpse

Catch up on 2016 Legislative Session! The bills below represent the ECHO Legislative Committee’s review of the 2500 bills introduced in Sacramento this year. The list – and the impact of each bill – will change as authors amend the language in their bills. We anticipate major changes in the months ahead. For the most up-to-date information, visit the HOA Advocacy section at the ECHO website: www.echo-ca.org/hoa-advocacy

Current Legislation Bill Information

Summary

AB 587

Mobilehomes – Nonpayments or Late Payments

Support Status: In Senate Transportation and Housing

For certain applicants who wish to register or transfer registration of a manufactured home or mobilehome prior to December 31, 2018, and meet other requirements, would require the department to waive all outstanding charges assessed by the department prior to the transfer of title of the manufactured home or mobilehome, release any lien imposed with respect to those charges, issue a duplicate or new certificate of title or registration card, and amend the title record.

AB 1720

Homeowner Attorneys at Board Meetings

Oppose Status: In Assembly Housing and Community Development

Current law requires the board to permit any member to attend and speak at any meeting, except for executive session meetings. This bill would require the board to permit a person (including an attorney) who represents a member to attend board meetings, and would require written notice to be given, as specified. ECHO recognizes the potential pitfalls of attorney involvement at board meetings, and we are watching this bill very closely.

AB 1736

Tax Deduction – Homeownership Savings Accounts

Support

This bill would provide that a qualified taxpayer may withdraw amounts from a homeownership savings account to pay for qualified homeownership savings expenses, and would provide that any amount withdrawn from that account that is not used for these expenses would be included as income for that taxpayer.

Author: Chau

Author: Wagner

Author: Steinorth Status: In Assembly Appropriations

AB 1799

Uncontested Elections

Oppose Unless Amended

Current law requires an association to use an inspector of elections and secret ballots (among other requirements) for assessments legally requiring a vote, election and removal of directors, amendments to the governing documents, or the grant of exclusive use of common area. This bill would additionally except from those election requirements an election of directors if the election is uncontested, as defined.

Author: Mayes Status: In Senate Transportation & Housing

AB 1963

Construction Defect Claim Conditions

Watch

Current law specifies conditions to be met before an association may file a complaint for damages against a builder, developer, or general contractor based upon a claim for defects in the design or construction of the common interest development. The law is set to expire on July 1, 2017. This bill would delete the inoperative and repeal dates of the above described requirement.

Author: Calderon Status: In Senate Judiciary

42 echo-ca.org

legislation at a glimpse

Current Legislation (continued) Bill Information

Summary

AB 2362

Pesticide Application & Notice

Watch

This bill would expand upon the 2016 law concerning notice requirements for the application of pesticides in common interest developments. It would require an association to provide notice to an owner or tenant of a separate interest, and under certain circumstances to owners or tenants of adjacent separate interests, if pesticide is to be applied without a licensed pest control operator. The bill would also authorize an owner or occupant to agree to immediate pesticide application. The bill would also permit the notice to be posted, as specified, after the pesticide application if the pest poses an imminent threat to health and safety.

Author: Chu Status: In Senate Judiciary

SB 477

Mobilehomes â€“ Property Tax Postponement

Support

This bill would authorize an owner of a mobilehome , who is a qualified person, to seek postponement of ad valorem taxes under provisions similar to other owners of real property.

Author: Leyva Status: In Assembly Appropriations

SB 944

Housing Omnibus Bill

Support

The Annual Housing Omnibus Bill cleans up errors and makes non-substantive changes in the law. ECHO has proposed several amendments to correct errors and improve clarity within the statute.

Author: Committee on Transportation & Housing Status: In Assembly Judiciary

SB 1431

Service of Summons or Subpoena

Watch

This bill would require an investigator who is employed by an office of a district attorney or a public defender, upon the display of proper identification, to be granted access to a gated community for the sole purpose of performing lawful service of process or service of a subpoena.

Author: Morrell Status: On Senate Floor

What Do You Think? Read more about HOA legislation on our website or visit our Facebook page and join the discussion. On the web: echo-ca.org/hoa-advocacy, On Facebook: facebook.com/echoorg

July/ August 2016 | ECHO Journal