Reader Questions - Committee Meetings, Rental Restrictions

Hello Mr. Richardson,

Our HOA board is composed of 5 members, and is updating the CC&Rs and bylaws. The board created a committee composed of 3 board members who have met numerous times, and no owners were notified of these meetings. I called on the board to point out that these meetings were in violation of the “open meeting act” because there were 3 board members (a board majority) at these meetings. The board replied: “The Davis-Stirling website states that the ‘Brown Act’ does not apply to community associations. Community associations are regulated by the ‘Open Meeting Act’ found in Civil Code 4900. Additionally, the Davis-Stirling website states that under the Open Meeting Act there is no law requiring that committees hold open meetings or post agendas. The Open Meeting Act applies only to meetings of the board.” Is this right?

Looking forward to your answer.

C.W., Goleta

Dear C.W.,

First, there is no official Davis-Stirling Act web site. There are various law firm web sites, including one which appropriated the name of the statute, but none of these, including www.hoahomefront.com, are official. The ONLY official law web site is www.leginfo.legislature.ca.gov.

Second, the Brown Act has nothing to do with HOAs – that is a law regarding public entities, and HOAs are private. The Open Meeting Act applies to homeowner associations.

Third, the Open Meeting Act can apply to committee meetings, if a majority of the board attends the meeting. Per Civil Code 4090(a): a “board meeting” is “a congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.” A committee meeting, if it includes the attendance of a quorum (in your case 3) of the board, becomes a “board meeting” and must fully comply with the Open Meeting Act.

Many associations (and even some managers) have not caught up with the expanded definition of “board meeting,” which is somewhat recent (2011’s SB 563 became law in 2012).

Your HOA should not have a quorum of the board in any committee, not only because it becomes a “board meeting” but also because you want committees to have mostly non-director volunteers. Committees are one of the best training grounds for future directors.

Thanks,
Kelly

Dear Kelly,

Our HOA has drafted new CC&Rs. There is a section that states that in order for an owner to be able to rent his/her unit, they have to have lived in the unit for two years. Is this legal?

B.E., San Pedro

Dear B.E.,

Waiting times for an owner to rent are permissible in CC&Rs. Many associations prefer a waiting period of one year after taking ownership, to discourage non-resident (aka investor) buyers.

The question is whether the waiting period applies to all owners, or only future owners. Associations can limit or even ban rentals, but Civil Code 4740 makes rental bans apply only to owners acquiring ownership after the ban is placed in effect. Civil Code 4740 applies to an amendments prohibiting the rental or leasing of a residence. I don’t think a waiting period is a “prohibition” under the statute, but the courts have not addressed this question.

Thanks,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.