Adrian J. Adams, Esq. - Think Tank Contributor for the Foundation For Community Research

Adrian Adams, Esq. - Think Tank Contributor for the Foundation For Community Research from Adrian J. Adams, ESQ on Vimeo.


Think Tank is a place for industry leaders to come together in order to identify and discuss developing trends throughout the community association world that warrant substantial research. Think Tank members are really investing in the future of our research, once we have those initial reports back we'll be able to approach those external funders for the remaining projects.

Adrian J. Adams, Esq.: "The monies that we raise jumpstart additional research because the Foundation for Community Association Research is really the only foundation that is doing any serious work in studying community associations and the changing roles within those communities"

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Draining the Pool to Save Water

Source: Adrian J. Adams Esq. 

QUESTION: 
Since we are in a severe drought and our members barely use the pool, are we obligated to keep it open? It seems like a waste of water and money and we would like to drain it. Does the board have the authority to close the pool?

ANSWER: If they have good reason, boards can close and drain a pool. Often it’s done when a pool needs to be replastered. The closure is short-term and the pool refilled with water. Your scenario is different since the closure would be long-term. Doing so could damage your pool.

In-Ground Pools. In-ground fiberglass and concrete pools are built to withstand the pressure of dirt against them when drained. Even so, ground pressure on fiberglass pools can cause side walls and floors to bulge and split. If ground water is high enough, hydrostatic pressure can cause an empty concrete pool to act like a ship and float several inches. This will break the coping/bond beam and damage the surrounding decks and pipes. Insurance does not cover such damage.

UV Damage. Pools built on solid concrete foundations or in a concrete vault are immune to hydrostatic pressure. However, they are not immune to solar damage. Direct sunlight will dry out plaster, causing spider cracks and tiles to pop off. When the pool is eventually refilled, water will seep into the cracks causing the plaster to blister and crumble. This is also not covered by insurance.

Safety Issues. The possibility of someone taking a swan dive into an empty pool should keep boards up at night. Associations that drain their pools should make sure they lock their gates and post warning signs. Even so, drunks have been known to climb fences for midnight swims. Finding a body at the bottom of an empty pool has a way of driving down property values. Plus there is the problem of cleaning up the mess.

RECOMMENDATION: Before an association drains its pool to save money, the board should talk to a pool construction expert, their insurance broker, and legal counsel.

Thank you to Les Jillson of Design Build Associates Construction Management for his valuable insights on this issue.

Changing Director Qualifications

Source: Adrian J. Adams Esq. 

QUESTION: Our bylaws have only one qualification for serving on the board–that directors be members. By a rule change, the board added a new requirement that a director’s primary residence must be in the development. The change eliminates 40% of the membership from holding office. Some believe the president took this action because of disagreements with individuals who do not live in the complex who may run against her. Doesn’t a change like this need a vote of the membership?

ANSWER: Because of a recent court decision, it appears that boards can unilaterally add new director qualifications without input by the membership.

Friars Village. Friars Village HOA had only one qualification for serving on the board, the nominee had to be a member of the association. The board adopted a rule that no one could serve on the board with another director related by blood or marriage. It’s a good requirement but it was done without membership approval. A homeowner sued in small claims to invalidate the rule since it was inconsistent with the bylaws. The board moved the dispute to superior court and the case ultimately ended up in the court of appeals.

Reasonableness Requirement. The court of appeals concluded that boards have the authority to adopt additional director qualifications without the need to amend the bylaws, provided the qualifications are “reasonably related to the performance of the Board and will serve to protect its overall mission — protecting the best interests of the Association.” (Friars Village Association v. Hansing.) I’m not comfortable with the court’s decision but it’s now the law.

Residency Rationale. Is the residency requirement adopted by your board reasonable? Probably. The argument in favor of residency is that board members who live in your development will have a stake in the community and will be more inclined to act in the best interests of the membership.

RECOMMENDATION: Despite the arguments for a board-imposed residency requirement, a judge could easily decide that disqualifying 40% of the membership from serving on the board is not reasonable. Therefore, the safer course of action is to seek membership support for new director qualifications and then amend the bylaws. Doing so reduces the risk of a legal challenge and an adverse ruling.

Small Associations

Source: Adrian J. Adams Esq. 

QUESTION: I am a board member for an 8-unit association. Perhaps you can help me with some questions: (1) Do smaller associations have fewer disputes or legal problems? (2) Is governance different from that of a large association?

ANSWER: There are distinct differences between large and small associations. When it comes to disputes, large associations have more of them but small associations experience greater suffering when conflicts erupt.

Critical Mass. Whenever you put people together, you have potential for conflict. The more people, the more conflict. You have more nut-cases in a 500-unit association than a 50-unit, and a 50-unit has more than a 5-unit. The other factor is density–the tighter people are packed together, the greater the friction. If you put 500 people into single-family homes with 20-foot setbacks, there are very few neighbor-to-neighbor disputes. If you stack people on top of each other with nothing more than a wall or ceiling separating them, you suddenly have a lot of squabbling over pets, parking, noise and water leaks. It’s like uranium, if you pack enough of it into a confined space, you get an explosion.

Resources Help. Because small associations are small, they have fewer people. With fewer people, there is less chance of a crazy living in the development. The disadvantage of a small association is its lack of resources. If an 8-unit gets a Ted Bundy in their midst, they have no way of stopping him. He can terrorize his neighbors and cripple the association’s budget. Large associations have the benefit of healthy budgets that allow them to hire legal counsel and professional management to address disruptive homeowners. The intimacy of a tiny association is wonderful when it works and a nightmare when it doesn’t.

Governance. It’s been my experience that governance of small associations is more casual and more consensus driven. If there are only a handful of families, they get together, discuss a matter and make a decision. The opposite occurs with large associations. The larger the community, the more formal meetings become with directors setting policy and others handling the details, e.g., professional management is employed, legal counsel hired and consultants retained. See factors to consider when Buying a Condo.

Drones

Source: Adrian J. Adams Esq. 

QUESTION: Our neighbor’s teenage so
n has been flying a drone over houses in the neighborhood, including our swimming pool. This is an invasion of my privacy. Can the board do something to stop him?

ANSWER: Privately operated drones are increasingly in the news because of the noise they make, the danger they pose to commercial air traffic, and invasion of privacy issues (many carry high definition cameras). Last week, the National Park Service banned drones in Yosemite. Visitors were using them to photograph the park and climbers on Half Dome. Noise, safety and privacy issues were factors in the Park’s decision.

Restricting Drones. The same concerns raised in the Yosemite ban can be the basis for prohibiting drones in community associations. Restrictions can be implemented through amending CC&Rs or through a rule change. Adopting a rule is much easier than amending the CC&Rs since it can be done by the board after a 30-day notice period. However, a CC&R amendment is easier to enforce if an HOA needs to go to court.

City and County. Any ban adopted by an association would apply only to members, residents and guests. If drones are being flown through the development by people outside the association, the board’s options are limited. The HOA would need to go to the city or county to seek a ban.

RECOMMENDATION: I recommend that boards start with a simple rule change. At some point when they update their CC&Rs, they can include the restriction. If your association needs assistance, contact us.