Reader Questions - Minutes, Rule Challenges, and Termite Treatment

Minutes, Rules Challenges

Dear Kelly,

Is it common for a board secretary to have the management company representative take meeting minutes? I do not see anything in our bylaws or other governing documents that addresses this. I think that this may be a conflict of interest.

Recently, in a board meeting, there was small dissent to new parking rules, and by a show of hands, they were overturned, and some older rules were reactivated in their place. I disagree with this procedure.

As I read it, Civil Code 1357.120(a) and (b) should apply; the rules merely mirrored what was already in the CC&Rs. Civil Code 1357.140 was invoked (by a 5% show of hands); however, no special meeting was called; no notice was given as prescribed, and the vote was merely a show of hands at a regular monthly meeting.

I thank you for your time,

L.G., Santa Ana

Dear L. G.,

Management companies often act as recording secretaries at board meetings, if that service is included in their contracts. If the manager is keeps accurate and concise minutes, it allows the secretary to deliberate along with everyone else. They aren’t minutes until the board approves the draft, so the board still has to approve them. Remember, minutes only record actions, not discussion.

As to rule changes, yes, adopting HOA rules is a board function. Members can petition to overturn a rule change, but it must be by vote of a majority of a quorum of the entire membership, not just a majority of the members who show up. The vote to overturn occurs at a membership meeting, not a board meeting.

Members have an important voice in rule changes, because the law (Civil 1357.130(b), next year 4360(b)) requires member comments be received before the board votes on the change. Under Section 1357.140 (next year 4365), 5% of the members can petition in writing for a membership meeting. If a majority of a quorum of the membership votes to overturn the rule change, it is overturned.

However, as you noted, the board is not required to follow this rule adoption procedure if the rule only repeats what is already in the governing documents – but, why say it again?

Thanks,
Kelly

Termite Treatment

Dear Kelly,

Our Board unanimously voted to tent our townhouse complex for termites and we were notified of this in the board minutes. Some are upset that we did not have a say in this matter and the only information provided to us is the name of the termite company and the date of the tenting. Do we have any legal say in this matter?

LM, Burbank

Dear L.M.,

Under Civil Code 1364(b) (in 2014 found at 4780), unless the governing documents say otherwise, condominium associations, stock cooperatives and community apartments are responsible for termite treatment. This means it is a board decision. In 1999, a dispute regarding termite treatment found its way to the California Supreme Court, in Lambden v. La Jolla Shores. The Supreme Court ruled that the board had the discretion, within the Business Judgment Rule, to handle maintenance of the common area. From a public relations standpoint, it is a good idea for boards to give as much advance notice as they can, but Civil Code 1364(d)(2) requires between 15 and 30 days written advance notification.

Thanks for your question,
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®.