January 2022 (Residential Communities Only)

THANK YOU!  On behalf of all of us at Community Legal Advisors Inc., thank you for trusting our firm with your community association’s legal needs.  This year, our summary is longer than ever before because our legislature passed so many new laws.

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Please enjoy the following overview and thoughtfully consider whether any of these new provisions affect your association adversely. Give us a (free) telephone call and we will do our very best to help you.

PART I

NEW LEGISLATION

AB 502 (Davies) – Election by Acclamation.Election by acclamation occurs where there are the same or fewer number of candidates than open seats on the board. Using acclamation, the board may declare the candidates who did run to be board members – without sending the ballot mailings, reconvening the meeting multiple times for lack of quorum, or even holding the election itself. Under AB 502, election by acclamation can occur if: (a) the association does not use delegate voting; (b) the association has held a regular election within the last 3 years;  (c) the association has provided individual notice* of the election and procedures for nominating candidates at least 90** days before the deadline for submitting nominations; (d) the association has distributed a “Reminder Notice”* between 7 and 30 days before the deadline for submitting candidate nominations; and (e) the association board votes for acclamation at an open meeting.  

Notice* Language. Each of the above notices must be sent by individual delivery (which might be via e-mail per SB 392 below). The notices must (a) identify the number of board positions to be filled; (b) identify the nomination deadline; (c) identify how nominations are to be made; (d) include a statement that: “If, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may, after voting to do so, seat the qualified candidates by acclamation without balloting.” Additionally, the Reminder Notice must identify the names of all the qualified candidates as of the date of its sending.

Qualification Notice. The new law also requires an association provide candidates, within 7 days of receipt of their application for candidacy, a responsive written or electronic communication acknowledging the nomination and indicating whether they are qualified or not. The problem is that an association must also provide 10 days’ notice for a qualification hearing – and candidates are qualified until there has been a hearing establishing otherwise. So, if you think a candidate is not qualified, indicate that they are qualified “pending” or “subject to” the coming hearing. Draft acclamation notices are attached as EXHIBIT A.

Action Item! In order to meet these new acclamation requirements, you must start early! An association must begin sending their election notices better than 6 months before the actual date (Election + 30 = send ballots; +30 = send Intro to Candidates; +30 = deadline for Candidate Registration; +30 (but as little as 7) = new reminder/request for candidates, +60 (but overall, 90*) = Initial Request for Candidates = +/- 180 days of notice, not including mailing time. Add time for mail houses and don’t forget to arrange the independent Inspector of Election!

AB 611 (Silva) – Safe at Home. Existing law requires every association to create a membership list, and to distribute the list under certain circumstances.  Associations are also authorized to withhold or redact information in specified instances, including when the release of the information is reasonably likely to compromise the privacy of an individual member of the association.  Under AB 611, victims of domestic abuse, sexual assault and other specified persons may apply for participation in an address confidentiality program, called “Safe at Home”, which provides a substitute address at a local government office. AB 611 adds new Civil Code Section 5216 requiring an association, upon request of a member who is an active participant in the Safe at Home program, to: (1) use the provided Safe at Home designated substitute offsite address for all communications to such member; and (2) redact any information that would reveal the name, community property address or email address of the Safe at Home participant to members of the association.

ACTION ITEM! Upon request of a member who is an active participant in the Safe at Home program, you need to purge the participant’s personal information from membership lists, mailbox bank listings, resident directories, electronic keypads, unit property numbers, and internet web portal accounts. Substitute the address designated by the Secretary of State.

AB 1101 (Irwin) – Expanded Investments, Financial Controls and Insurance. Existing law requires managers, at the written request of the Board, to deposit funds into a California bank, savings association, or credit union which is insured by the federal government (ex: FDIC).  AB 1101 expands possible depositories to include the National Credit Union Administration Insurance Fund (NCUAIF) or a guaranty corporation meeting specified requirements.  Existing law required written board approval for transfers of greater than $10,000 or 5% of an association’s total deposits.  AB 1101 revises that criteria. Now, all (reserves or operating) transfers over $5,000 or 5% of the estimated budgeted income for associations with 50 separate interests or less, or the lesser of $10,000 or 5% of the estimated budged income for associations with 51 or more separate interests, require written Board approval. Finally, while old law required fidelity bond coverage for directors, officers and employees (including dishonesty and computer fraud), AB 1101 allows the use of insurance for such purposes. It also clarifies that associations (and not management companies) carry the insurance, and adds crime insurance, employee dishonesty coverage, computer fraud, funds transfer fraud and fidelity coverage to the required insurances.

Action Item! Document the Board’s approval to pay these larger expenses. Do this by making an annual board resolution at the start of each year for (1) any bill for an approved budget item (like landscape maintenance, irrigation, and insurance); (2) any bill for a contract or expenditure approved during a meeting; and (3) any unapproved bill paid for the previous fiscal year.  Budget for and work with experienced HOA insurance experts to cover the enhanced panoply of covered perils and parties identified by our caring Legislature. A draft Fund Control Resolution is attached as EXHIBIT B.

AB 1466 – (McCarty) Discriminatory Restrictions. Associations are already required to attach a cover page to CC&Rs and amendments to CC&Rs with specific language advising that any restriction that discriminates on specified characteristics is void. AB 1466 will require any title company, escrow company, or association, who delivers copies of CC&Rs to revise that cover page and to also provide a Restrictive Covenant Modification Form (“RCM Form”) with procedural information for requesting removal/redaction of violating provisions from your County Recorder’s office. County Recorders must then establish an RCM program to redact/remove the unlawful restrictions from CC&Rs (and other recorded documents).

Action Item! Provisions in an association’s recorded CC&Rs that discriminate on the basis of race, color, religion, sex, and other specified characteristics are legally void – but that doesn’t stop them from being highly offensive when encountered within a document.In the end, discriminatory language is incredibly rare, but if you have it, contact our office and we’ll help you use the RCM Form at no charge to remove it!  A sample Cover Page and RCM Form are attached (as EXHIBIT C) for future use when distributing copies of the CC&Rs.

AB 1584 (Housing Omnibus Bill) – CC&R Amendments for Rental Restrictions – Last year, a new law precluded HOA’s from adopting or enforcing CC&R provisions restricting rentals to less than 25%, but allowed amendments imposing minimum lease periods of 30 days. Legislating an amendment requirement, without taking into account that members actually have to vote for to amend, didn’t work. This new law requires the board (without approval of the members) to amend CC&Rs containing a prohibited restrictive covenant no later than July 1, 2022.

Failure to Act. There are two downsides we see to failing to act. (a) The (now invalid) existing provisions provide zero protection against short term rentals. (b) The association “shall be liable to the applicant or other party for actual damages, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000).”

Action Item! Associations now have until July 1, 2022, to unilaterally amend their CC&Rs (without membership vote) in order to comply with the rental provisions in last year’s AB 3182.  The board must provide general notice of the amendment at least 28 days before approving the amendment. The decision on the amendment must be made at a board meeting, after consideration of any comments made by association members. Check with legal counsel before adopting or amending rental provisions as they may not be binding on owners who purchased before the amendment or who live within a Coastal Zone.  Imposing new rental restriction in your CC&Rs however will generally require membership approval.  Please contact us to discuss

SB 9 (Atkins) – Lot Splitting.Many associations are comprised of single-family residences. SB 9 requires the local municipality to approve owner-requested lot splits of single-family parcels, making each lot into two if the lot size meets certain minimum standards.  When combined with last year’s Accessory Dwelling Unit (“ADU”) and Junior Accessory Dwelling Unit (“JADU”) laws, this allows for the creation of up to six, eight or even ten units on what was once a single-family parcel.  It was originally thought, based on written assurances from the author, that this bill would not apply to associations.  However, such assurances never quite made it into the language of the new law, leading attorneys to differ and the courts to ultimately determine whether SB 9 lot splitting can occur within associations.  

Action Item! When confronted with an architectural application involving a lot split, ADU or JADU, contact your lawyer. The law in this area is moving so quickly that, by the time you receive an application, we may have new case-law defining whether AB 9 applies to common interest subdivisions, and providing direction on how assessments will be reallocated when there is a subdivision of a lot, how view rights and setback requirements historically reserved in CC&Rs will operate, and how height requirements will be enforced.

SB 10 (Wiener) – Housing Density.  In addition to SB 9 above, SB 10 authorizes a city or county to pass an ordinance to zone any parcel for up to 10 units of residential density, at a height to be specified, if the parcel is located in a “transit-rich area” or an “urban infill” as those terms are defined.  At one point, SB 10 contained language that voided any provision in an association’s CC&Rs or other governing documents that would have the effect of prohibiting or unreasonably restricting the use or density authorized by an ordinance adopted pursuant to SB 10.

Action Item! As adopted, SB 10 does not contain the prohibition on CC&Rs density restrictions, meaning that associations can block this sort of density where their CC&Rs preclude same.

SB 60 (Glazer) – Fines for Short Term Rentals. Recognizing that city or county fines for violations of short-term rental ordinances were so insignificant ($100, $200, $500) as to pose no real limitation on behavior, the Legislature increased fines to $1,000, $3,000 and $5,000 (10X!) for first, second and third offenses.

Action Item! Since association fines must be “reasonable” to be enforced, we can now justify higher dollar fines for those who substantively violate an association’s short term rental rules/policy because the legislature did the same thing.

SB 391 (Min) – Emergency Powers and Procedures; Teleconference Meetings.  Existing law requires a board meeting held by teleconference methods to identify a physical location where members of the association may gather and attend. During the Covid-19 lockdowns, emergency orders made in person gatherings illegal or severely restricted and videoconference meetings were utilized to conduct board and membership meetings with great success.  New Civil Code Section 5450 establishes an emergency power and procedure to use teleconferencing (Zoom, etc.) for both board and member meetings without any physical locationif gathering in person is unsafe or impossible. The association must be in an area affected by one or more of the following conditions: (a) a federal state of disaster or emergency is declared; (b) a state of emergency proclaimed by the Governor; or (c) a local emergency proclaimed by a local governing body.  In a qualifying state of emergency, the association may conduct its meetings by teleconference without any physical location if ALL of the following conditions are met: 

(1)        Notice of the first meeting conducted telephonically for a particular disaster or emergency is delivered to members by individual delivery.  Note:  The requirement to mail a hardcopy to a member’s onsite address may be waived if, during such disaster or emergency, mail cannot be delivered, in which case the association may deliver notice of the first meeting by electronic delivery to email addresses provided by the association members, if certain requirements are met.

(2)        Notice for each meeting includes (in addition to other required content): (i) clear technical instructions on how to participate; (ii) the telephone number and email address of a person who will be providing technical assistance with attending teleconference meeting, both before and during the meeting;  (iii) a reminder that a member may request individual delivery of meeting notices, with instructions on how to do so; (iv) directors and members have the same ability to participate in the meeting that would exist if meeting in person; (v) director votes must be conducted by roll call; and (vi) the option of participating by telephone is available to all entitled to participate.

(3)        Finally, if ballots are scheduled to be counted and tabulated at the meeting, the meeting must be conducted by video conference with the camera placed where members can witness the inspector of elections tabulating the votes.

Action Item!  If the Board determines that the existing Federal and State declarations of State of Emergency make gathering in person is unsafe or impossible, then it can notice and hold meetings without any physical location. The association’s next notice should be provided by individual delivery, which includes mailing to the members or emailing to those members who have consented to receiving notices by email.  Subsequent/reminder notices may be posted.  

SB 392 (Archuleta) – Document delivery. Current law requires associations to deliver certain notices and documents by “individual delivery” – meaning by mail or overnight delivery, or by email, fax or other electronic means if the member has consented in writing or by email to electronic delivery.  After January 1, 2023, associations are required to deliver notices and documents in accordance to the preferred delivery method specified by the member, or, if the member has not provided a preferred delivery method, by traditional mail to the address last shown in the association’s records.

Associations are already required to solicit on an annual basis the member’s address or addresses for delivery. The notice now must provide the option of receiving notices at a mailing address, a valid email address, or to both (while disclosing that the member does not need to provide an email address to the association). If the association maintains a website for communicating with its members, the website may be designated in the annual policy statement as the location for posting general notices to the members. A member’s personal information is prohibited from being shared with third parties without the consent of the member unless required by law.

Action Item!  Review your address solicitation notices and bring them current with the new law. Create a process to track members’ preferences for documents delivery by mail, by email, by both, or whether the member has a secondary delivery address or a designated representative. If an association has a website, designate it as the location of posting of general notices. A draft Annual Request for Member Contact Information Form is attached as EXHIBIT D.

SB 432 (Wieckowski) – Elections – SB 323 Clean-Up.  When it was adopted in 2020, SB 323 (the elections law overhaul) created many ambiguities. SB 432 fixes a number of these issues including (i) adding term limits as a possible election qualification and (ii) expanding the time to conduct director recall elections (because the timelines required by Corporations Code Section 7511 conflicted with those imposed by SB 323.)  Other amendments include (iii) clarifying that association election materials remain available for audit for one-year after the election. 

Action Item! The disconnect between SB 323 timelines and Corporations Code Section 7511 for noticing special meetings of members is now resolved by extending the timeframe for conducting the meeting from 90 to 150 days. And, an association may again utilize an existing term limit qualification from its Bylaws, or pass a new one in its election rules. Keep in contact with your Inspector of Elections so you can locate ballots should an inspection arise.

SB 908 (2020) (Wieckowski)-Debt Collectors Licensing Act (“DCLA”) – Signed into law in 2020, SB 908 took effect on January 1, 2022. This poorly worded statute purports to require licensing by a wide swath of those involved with the collection of delinquent assessments. The primary argument that our industry should not be bound by this statute is that we are not “debt collectors” under the traditional definition which first requires the extension of credit. Community Association Institutes’ California Legislative Action Committee (CLAC) sent a letter to the California Department of Financial Protection and Innovation requesting clarification that the DCLA does not apply to homeowners’ associations. While communications continue, the deadline to apply for licensing has come and gone, leaving open the question of how many are “unlicensed.”

Action Item! While many management companies want to know “am I a debt collector?”.  The answer is presently debatable. Absent a ruling that the new law does not apply to our industry as a whole, we believe that associations and their individual managers are likely not debt collectors under California law. Management companies with assessment collections departments, assessment collection firms and lawyers will probably be classified as debt collectors under this Act.  Management companies and managers are still considered debt collectors under the Federal Fair Debt Collection Practices Act (“FDCPA”).  

SB 1383 (2016) Organic Waste Bill -Signed into law September 2016, SB 1383 took effect on January 1, 2022.  The bill requires any person or business to separately recycle all their “organic food waste.” Organic food waste must now be collected every week and taken to a facility to compost it into reusable products.

Action Item! There’s an FAQ page on the Cal Recycle website which can be found at: https://www.calrecycle.ca.gov/Organics/slcp/faq/ which requires jurisdictions (not associations) to provide collection services.  The responsibility for informing residential customers falls on the city, county and hauler.

PART II

NEW CASE LAW

Issakhani v Shadow Glen, 2021, 63 Cal.App.5^th 917 – Offsite Parking

On the night of June 10, 2014, Anaeis Issakhani was struck by a car while jaywalking across a five lane road to visit a friend living in the Shadow Glen Homeowners Association condominium complex. At the time of construction in 1979, the city had required the developer to install 34 guest parking spaces. At the time of the accident there were only 6 visitor spaces available. Issakhani argued that the lack of spaces reserved for visitors created a foreseeable risk that visitors would park across the five-lane street and potentially be hit by cars.

While the Court found that it foreseeable that someone who parked offsite might be injured while crossing the street, the risk was too attenuated from Shadow Glen’s actions to support a finding that Shadow Glen owed a duty of care. The Court also found that it was not in the interests of public policy and imposed an unduly burdensome duty to require landowners to provide enough parking spaces for people who might visit their properties.  Such a duty would require some landowners to bulldoze buildings and take other actions that would likely be prohibitively expensive to provide spaces for all visitors.  Alternatively, requiring Shadow Glen to reserve more spaces for visitors would simply shift who was required to park offsite from guests to tenants.  The Court also determined that the purpose of the city ordinance was to preserve residential character and not to prevent offsite accidents. 

CASELAW TAKE-AWAY!  A land owner’s common law duty of care does not encompass a duty to provide on-site parking for invitees in order to protect them from off-site incidences.  There’s many a meeting where a member argues that a community’s parking restrictions expose his (typically female) guest to personal injury when she parks out on the street late at night. Feel free to remind him that he could park on the street, saving his garage or reserved space for his guest.

Brown v. Montage at Mission Hills, 2021 68 Cal.App.5th 124 – Rental Restrictions

Civil Code Section 4740(a) states:

An owner of a separate interest in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of any of the separate interests in that common interest development to a renter, lessee, or tenant unless that governing document, or amendment thereto, was effective prior to the date the owner acquired title to their separate interest. (emphasis added)

Nancie Brown bought within the Montage at Mission Hills in 2002.  At the time, Montage’s governing documents did not prohibit short term rentals (“STR”) nor require minimum rental periods at all.  Brown used the unit as a STR from 2002 to 2017. In 2018, Montage amended its CC&Rs to prohibit STRs (less than 30 days).  Brown sued. Montage argued that its STR rule was a partial “restriction” falling short of a complete prohibition.  Although the trial court sided with Montage, on appeal the Court found Montage’s amendment is a “prohibition” because it prohibited her from renting her unit for periods less than 30 days.

CASELAW TAKE-AWAY!  This case does not overrule Villa De Las Palmas Homeowners Association v. Terifaj – there is no “grandfathering” when the community amends its general use restrictions. This case also does not affect AB 1584 above, and you should take advantage of the 6 month window provided by the legislature for the Board to unilaterally reduce existing minimum lease periods to 30 days. However, this case does hold that if you are implementing new lease restrictions, those will not be enforceable against those who bought prior to the restriction being enacted. There will be disparate property rights – people who bought at different times will have different applicable rental rules.

Mezger v Bick, 2021 Cal. App. LEXIS 550 – Cathy Griffin Nest Security

Comedian Kathy Griffin and her boyfriend Randy Ralph Bick, Jr. moved next door to Sandra and Jeffrey Mezger in July 2016.  Noise complaints and police calls ensued. The police informed the Mezgers that Griffin had recorded them.  Griffin claimed she had installed three security cameras and microphones for protection due to stalking and death threats she received and that the cameras were entirely on her property.  The microphones captured voices 60 feet away.  Griffin further alleged that the cameras were positioned to maximize her safety and were not intended to “spy” on the Mezgers, although one camera apparently captured a portion of Mezger’s backyard.  Griffin sometimes also used her iPhone to record loud party noises from the Mezger’s yard.

Portions of recordings were published in the Huffington Post and Griffin reportedly used some of the recordings during her acts.  Mezgers sued Griffin claiming violation of their rights to privacy. The Appellate Court found that Griffin had established legitimate safety concerns due to her public exposure (her prior suggestion that the former president be “beheaded”), past death threats and stalking incidents, and that the capture of video images of and sounds from the Mezger’s backyard were incidental to their interest in securing a second-story bedroom.  The Court also found that the conversations captured were spoken at elevated volumes for which the Mezgers could not reasonably be expected to remain private in an outdoor residential setting with neighbors nearby.

CASELAW TAKE-AWAY! Anyone can install a regular or doorbell camera on their house.  However, to avoid breach of privacy concerns, have owners point video cameras into their own yards and entries. Cameras should not point into neighboring property, but inadvertent minor coverage thereof is acceptable. Neighbors passing by or talking loud enough to be heard waive their right to privacy.

Kracke v City of Santa Barbara, 2021 DJDAR 4377 – STR BAN

Prior to 2015, the City of Santa Barbara encouraged short term vacation use of property.  Then, the City began regulating STRs as “hotels” – effectively banning STRs.  The City did not first seek permission of the California Coastal Commission (the “CCC”).  Kracke, who manages STRs, sued. Both the trial and appeals court held that a City within the coastal zone could not unilaterally pass a new STR rule without first obtaining approval from the CCC.

The Coastal Act provides tremendous power to the CCC to find that even minor changes in use of a property within the coastal zone is a “development,” requiring their approval. Arguing that the loss of STRs creates unavailability of low-cost housing and tourist facilities and is an impediment to coastal access, the Court of Appeal relied on last year’s Greenfield v. Mandalay Shores’ case which voided an association ban of STRs along the Oxnard coastline.   

CASELAW TAKE-AWAY! Like cities, HOA’s within the coastal zone must now obtain permission of the CCC to ban STRs.Here, the City of Santa Barbara, like Oxnard’s Mandalay Shores, had a prior history of allowing STR’s. We believe it is this change of use, rather than the STR rule itself, which constitutes “development” at the CCC – meaning that we are betting that a court will soon find that if a community is located within the Coastal Zone, but has never allowed STRs because of a (now illegal) six month or one year minimum lease rule, revising its rental restriction per AB 1584 (above) to 30 days does not require CCC approval.  

Champir, LLC v Fairbanks Ranch Association, 2021 DJDAR7206 [June 22, 2021]

California Civil Code §5975(c) states that in “an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” The question in Champir is who won?

Champir sued the Association to stop its plan to install a traffic signal in a location immediately outside Champir’s house. Champir alleged that the Association breached its CC&Rs when it chose to install the traffic signal without a vote of the members (capital improvement in excess of 5% of the Association’s annual budget). Owners had already approved a traffic signal, but at a different gate than the one outside Champir’s home.

Champir was granted a TRO stopping the construction. During the pendency of the TRO, the Association held another vote and received approval of the membership to install the signal behind the Champir home. The Association then moved to dissolve the preliminary injunction and Champir dismissed the remaining causes of action. Both parties sought an award of attorney fees and costs as the “prevailing party”.  The Court determined Champir was the prevailing party because they achieved their litigation objective, which was to have the Association hold a vote of the members to approve the traffic signal installation.

CASELAW TAKE-AWAY!  Many or most lawsuits brought by HOA’s arise from a preliminary breach of the CC&Rs – such as the failure to obtain architectural approval for improvements to the exterior of the residence. Through the pendency of such cases, owners often obtain architectural approval or revise their improvements to be consistent with architectural regulations. This case makes it clear that even when the underlying violation is remedied, an association should be still be the prevailing party because the remedy would not have occurred but for the association’s legal action.

Dickson v. Century Park East – Are You A Debt Collector?

Dickson failed to pay a special assessment and the association filed suit. Dickson alleged that association’s legal counsel violated California’s Rosenthal and Federal Fair Debt Collection Practices Acts (FDCPA). In ruling in favor of the association and its legal counsel, the court determined the special assessment was not a “consumer credit transaction” and that the Association and its legal counsel could not be “debt collectors” under the Rosenthal Act. The court reasoned that assessments do not involve a loan or credit to members of the association nor involve the acquisition of a product or service by a homeowner for family or household use.

With regard to the alleged violations of the FDCPA, the court noted that the definitions of “consumer” and “debt” in the FDCPA are different than the definitions under the Rosenthal Act and do apply and that association assessments are a debt for purposes of the FDCPA, but had questions about whether legal counsel had practiced debt collection by engaging in non-judicial foreclosure.

CASELAW TAKE-AWAY!  This case gives you some insight to the confusion created by the confluence of Federal Law, State Law and 2020s’ SB 908, the Debt Collectors Licensing Act (“DCLA” discussed in the New Legislation above).  Each of these series of laws applies differently, depending upon their specific definitions and the factual background of the means by which the association pursues collections. Management companies, debt collectors and law firms all navigate constantly changing standards and subject themselves and their associations to liability each time they act to collect debt from a non-responsive homeowner.

WHEW, THAT’S IT. You did it! THANK YOU! We hope you enjoyed this overview and considered how each of the changes may affect your community.  If you believe that one of the new provisions could affect your community association adversely, just give us a free telephone call and we will do our very best to help you. To stay current with issues affecting community associations, please go to our website and subscribe to our Newsletter.

EXHIBIT A.

Draft Acclamation Notices, Request for Candidates

(To be sent via individual notice at least 90 days prior to deadline for nomination)

NOTICE OF NUMBER, PROCEDURE AND DEADLINE

FOR SUBMITTING NOMINATION OF CANDIDATES

FOR ELECTION OF BOARD OF DIRECTORS

(Civil Code Sec. 5103 and 5115a)

To All Members of ________________Association:

The Association will soon have its election of the Board of Directors. The Board of Directors is made up of volunteer owners who make important decisions for the community. If you are a Member who meets the qualifications stated in the Election Rules (a copy of which is attached) and you wish to be a candidate for election to the Board of Directors, please note the following:

1. Number. The number of Director positions to be filled at the upcoming election is ______.

1. Deadline. The deadline for submitting nominations for candidates for the Board is 4:00 p.m. on ___________________, 202_.

1. How to Submit Nominations. You may nominate yourself by notifying the management company in writing by mail or email by the above deadline:

Mgmt Co Name: _________________________________

Manager Name: __________________________________

Mailing Address: _________________________________

                             __________________________________

Email: ________________________________________

Phone Number if questions: _______________________

1. Statement re: Election by Acclamation. If at the close of the time period for making nominations there are the same number or fewer candidates as there are board positions to be filled, then the Board of Directors may, after voting to do so, seat the qualified candidates by acclamation without balloting.

Thank you for your interest and participation in the Association’s election of Directors.

Sincerely,

Your Board of Directors

EXHIBIT A.

Draft Acclamation Notices, Reminder Notice

(To be given by individual notice between 7 and 30 days prior to deadline for nomination)

NOTE: This Reminder Notice is not required if, as of the date of this notice, the number of qualified candidates exceeds the number of positions to be filled.

REMINDER NOTICE RE: NOMINATION OF CANDIDATES

FOR ELECTION OF BOARD OF DIRECTORS

(Civil Code Sec. 5103 and 5115a)

To All Members of ________________Association:

This a reminder notice as to the number of director positions to be filled at the upcoming election of the Board of Directors, and the procedure and deadline for nominations, as required by California law:

1. Number. The number of Director positions to be filled at the upcoming election is ______.

1. Deadline. The deadline for submitting nominations of candidates for the Board is 4:00 p.m. on ___________________, 2022.

1. How to Submit Nominations. You may nominate yourself by notifying the management company in writing by mail or email by the above deadline:

Mgmt Co. Name: _________________________________

Manager Name: __________________________________

Mailing Address: _________________________________

                           __________________________________

Email: _____________________________________

Phone Number if questions: ____________________

1.  Preliminary List of Candidates as of date of this notice:
2. Name: __________________
3. Name: __________________
4. Name: __________________

• Statement re: Election by Acclamation. If at the close of the time period for making nominations there are the same number or fewer candidates as there are board positions to be filled, then the Board of Directors may, after voting to do so, seat the qualified candidates by acclamation without balloting.

Thank you for your interest and participation in the Association’s election of Directors.

Sincerely,

Your Board of Directors

EXHIBIT A.

Draft Acclamation Notices, Confirmation of Nomination

(To be sent to each nominee within 7 business days of receipt of nomination)

CONFIRMATION OF RECEIPT OF NOMINATION

AND NOTICE OF RESPONSE

(Owner Name)

(Owner Address)

Dear ________________________:

This letter shall confirm that the Association has received your nomination as a candidate for the election of the Director positions to be filled and wishes to inform you of the following pursuant to Civil Code Section 5103:

___ You are qualified to become a candidate as stated under California law and the Association’s Election Rules. Your name will therefore be included on the candidate list and the ballot.

___ You are presently subject to disqualification based on the following reasons: _______________________________________________.  The Association will not disqualify you until you have been provided the opportunity to participate in Internal Dispute Resolution pursuant to Civil Code Section 5900 et seq. The Association has scheduled an IDR session at which time you and at least one director will have the chance to meet and confer as to this issue:

Date: _____________, 202__ (greater than 10 days from the date of sending)

Time:______________

Location: (in person or by videoconference as follows):

Please confirm whether or not you intend to attend the IDR session, or whether you wish to withdraw your nomination at this time, by emailing: _______________________.

Sincerely,

Your Board of Directors

EXHIBIT B.

Draft Fund Control Resolution

NAME OF ASSOCIATION

FUND CONTROL RESOLUTION

WHEREAS, the Association is a non-profit mutual benefit corporation subject to California’s Davis-Stirling Act and more specifically Sections 5380, 5502, and 5806 of the Civil Code.

WHEREAS, the Association has ____ separate interests.

WHEREAS, all (reserves or operating) transfers over $5,000 or 5% of the estimated budgeted income for associations with 50 separate interests or less, or the lesser of $10,000 or 5% of the estimated budged income for associations with 51 or more separate interests, require written Board approval.

BE IT KNOWN, by this resolution, the Board of Directors makes written approval for its managing agent to transfer funds as necessary to pay (1) any bill for an approved budget item (ex. landscape maintenance, irrigation, and insurance); (2) any bill for a contract or expenditure approved during a board meeting; and (3) any unapproved bill paid for the previous fiscal year. 

Signed

________________________________        _______________

President                                                         Date

________________________________       _______________

Secretary                                                        Date

EXHIBIT C

Sample Cover Page and RCM Form

“If this document contains any restriction based on age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, veteran or military status, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code by submitting a “Restrictive Covenant Modification” form, together with a copy of the attached document with the unlawful provision redacted to the county recorder’s office. The “Restrictive Covenant Modification” form can be obtained from the county recorder’s office and may be available on its internet website. The form may also be available from the party that provided you with this document. Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.”

EXHIBIT C

Sample Cover Page and RCM Form

Title: Restrictive Covenant Modification

Background: Section 12956.2 (a) (1) was amended to authorize a person who holds or is acquiring an ownership interest of record in property that the person believes is the subject of an unlawfully restrictive covenant in violation of subdivision (I) of Section 12955, may record a document titled Restrictive Covenant Modification. The modification document shall include a complete copy of the original document containing the unlawfully restrictive language with the unlawfully restrictive covenant language redacted.

Purpose: Provide a process and procedure to assist property owners in the removal of unlawfully restrictive covenants from these recorded documents, pursuant to Government Code 12956.2.

Policy: The Clerk-Recorder will assist property owners with the expeditious removal of the unlawfully restrictive covenants, upon County Counsel determination that such language contains an unlawful restriction based upon age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, veteran or military status, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry. The Restrictive Covenant Modification and Restrictive Covenant Modification Procedure shall be provided to the public, upon request and at no charge.

Procedure: 1. The removal process requires the property owner to submit a completed, signed and acknowledged Restrictive Covenant Modification form to our office, along with a copy of the original document with the unlawful restrictive covenant highlighted, and a copy of the original document with the unlawful restrictive covenant redacted. 2. Before recording the Restrictive Covenant Modification, the Examiner must submit the documents referenced in section 1 to his/her Supervisor for review, who will then submit the documents to County Counsel for its determination as to whether the document contains an unlawful restrictive covenant. 3. County Counsel will inform the submitting Supervisor of its determination, within a reasonable period of time not to exceed three months from the date the request for recordation is made, unless extraordinary circumstance apply. 4. The County Recorder shall refuse to record the modification document if County Counsel finds that the original document does not contain an unlawful restrictive covenant. If County Counsel agrees that the original document does contain an unlawful restriction, he/she will sign the Restrictive Covenant Modification (electronic signature by County Counsel is acceptable), and the document will be recorded, along with the copy of the original document with the unlawful restrictive covenant redacted. 5. Recording charges will be waived, pursuant to Section 27361, and is SB2 exempt. 6. The modification document shall be indexed as a Restrictive Covenant Modification and in the same manner as the original document being modified. It shall contain a recording reference to the original document in the form of a book and page or instrument number, and date of the recording. The effective date of the document would be the same as the original document. The index shall be made available to the public and will include “Restrictive Covenant Modification” in the title in the online index.

RECORDING REQUESTED BY:

WHEN RECORDED MAIL TO:

NAME

MAILING ADDRESS

CITY, STATE and ZIP CODE

SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE

RESTRICTIVE COVENANT MODIFICATION

(Racial or Otherwise Unlawfully Restrictive Covenant Modification)

The following referenced document contains a restriction based on age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, veteran or military status, genetic information, national origin, source of income as defined in Section 12955 of the Government Code, or ancestry, that violates state and federal fair housing law and is void.

Pursuant to Section 12956.2 of the Government Code, this document is being recorded solely for the purpose of redacting and eliminating that restrictive covenant as shown on page(s) ___________ of the document recorded on _______________ (date) in book ______ and page_______, or as instrument number ___________________ of the official records of the County of Orange, State of California. Attached hereto is a true, correct and complete copy of the document referenced above, with the unlawfully restrictive covenant redacted.

This modification document shall be indexed in the same manner as the original document being modified, pursuant to subdivision (d) of Section 12956 of the Government Code.

The effective date of the terms and conditions of this modification document shall be the same as the effective date of the original document.

Signature of Submitting Party:____________________________ Date: __________________ Printed Name: _____________________________ _______

____ County Counsel, pursuant to paragraph (1) of subdivision (b) of Section 12956.2 of the Government Code, hereby states that it has determined that the original document referenced above contains an unlawful restriction and this modification may be recorded.

Or

_____County Counsel, pursuant to paragraph (1) of subdivision (b) of Section 12956.2 of the Government Code, finds that the original document does not contain an unlawful restriction, or the modification document contains modifications not authorized, and this modification may not be recorded.

Approved: County Counsel

Signed:__________________________________________ Date: _____________________ By:__________________________________, Deputy County Counsel Effective 01/22
EXHIBIT D

Draft Annual Request for Member Contact Information Form

IMPORTANT: PLEASE COMPLETE AND RETURN TO:

__________ Management, _______, ______, CA _______

1. PREFERRED ADDRESS(ES)

California law requires the Association to request and collect certain information from its members on an annual basis. If this form is not returned, the last address provided in writing by you, or if none, the property address, shall be deemed to be your preferred address for  Association notices and communications:

Name of Homeowner(s): ________________________________________________________

Property Address: _____________________________________________________________

My Property is (check one):  ( ) owner-occupied, ( ) rented out, ( ) vacant, ( ) undeveloped land.

I consent to notices and communications being sent to me as follows (check all that apply):

___  The Property address above.

___  E-mail address (See Section II, below)

___  The following alternate/secondary address if any: _________________________________

                                                                               _________________________________                                                                                                                                                                                                                                                                                                     

_________________________________

___ my legal representative, person or holder of a Power of Attorney, whom you may contact upon my extended absence at the following (Name, address and/or email address): ___________________________________________________________________________.

   II. CONSENT TO RECEIVE DOCUMENTS AND NOTICES VIA EMAIL

By provision of my e-mail address, I acknowledge and agree to the following:

(1) I am an owner of the above Property; (2) I prefer email delivery of all community association documents and notices as allowed by California law; (3) I have the right to request notices/records be sent in a non-electronic form; (4) I am obligated to notify the Association of a current/updated email address if this one becomes inactive/invalid; (5) I may withdraw my consent for email delivery at any time by notifying management in writing; (6) Accepting documents and notices is optional; (7) I am not obligated to provide an e-mail address to the association.

My email address is (please write clearly) __________________________________________

   III. RIGHT TO OPT OUT OF MEMBERSHIP LIST

California law now allows a member’s property address, mailing address, and email address (if any) to be disclosed to other members upon those members’ request for a copy of the membership list. You have the right to opt-out of your information being disclosed on the membership list: (check one)

___ Yes I wish to opt out of having this information disclosed on the membership list.

___ No, I do not wish to opt out, meaning this information will be disclosed on the membership list and provided to Members at their request.

Dated: ________________   

Signature of Homeowner: __________________________________________

Finally, please note that the Association designates its website located at _________________, as its location for providing General Notice to the Membership per Civil Code.