Are you Giving Proper Notice When Using Reserves to Pay for Litigation?

NoticeHappy New Year! As we enter 2014, there have been some significant changes in community association laws in California (Click Here for our 2013 Legislative Update). Not the least of which is the restating of the Davis-Stirling Act. While we have already addressed the most significant changes in the new Davis-Stirling Act (Click Here for our Guide to the New Davis-Stirling Act), now that the revision has taken effect, and we are dealing with the new law on a day-to-day basis, new issues are being discovered which were not anticipated. As these issues pop-up, we will be writing on them to bring them to light, and provide some guidance on how to address these new issues.

Of course we couldn’t get far into the new year without the first of these “unforeseen” issues already coming to our attention. This one courtesy of Cathy Acquazzino of Progressive Community Management. Cathy noticed that under the “old version of the Davis-Stirling Act, when an association used funds from reserves to pay for litigation, the association was required to give notice of that decision to its members in the “next available mailing.” (Old Civil Code section 1365.5(d)). This language set the time period within which the board had to notify its members of the use of reserve funds to pay for litigation.

Under the new Davis-Stirling Act, 1365.5(d) is restated in Civil Code section 5520. One of the changes from the old language in this section is the elimination of the phrase that notice of the board’s decision to use reserve funds to pay for litigation must be given in the “next available mailing.” Instead, section 5520 simply states that the association “shall provide general notice pursuant to Section 4045 of that decision, and of the availability of an accounting of those expenses.”

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2013 Legislative Update for California Community Associations

Photo-Legislative-Update-22013 Proved to be a relatively quiet year for legislation for community associations. However, that does not mean that 2014 does not bring some drastic changes.  

1. AB 805 – Restated Davis-Stirling Act

AB 805 enacted in 2012 reorganized and restated the Davis-Stirling Act and moved it to a new part of the California Civil Code. While there are some changes to the Davis-Stirling act as a result of AB 805, most of the changes are relatively benign as this was designed to be a non-controversial matter. We have already written about the more significant changes coming with the restated Davis-Stirling act, and you can find our detailed article, “Guide to the Davis-Stirling Act Reorganization (AB 805)“, or click here to download a PDF version of that article.

2. SB 745 – Davis-Stirling Restatement Clean-up Legislation

SB 745 is a multi-issue omnibus bill, and as it relates to community associations primarily acts to “clean up” some issues related to the reorganizing of the Davis-Stirling Common Interest Development Act, which becomes effective on Jan. 1, 2014. As enacted in 2012, AB 805 reorganized and rewrote the Davis-Stirling Act in a new part of the California Civil Code. As often happens with such a significant undertaking, items are inadvertently omitted, or changes in the law are not incorporated in time to be included in the bill. SB 745 serves to rectify those types of issues.

Continue reading “2013 Legislative Update for California Community Associations”

A Guide to the Revised Davis-Stirling Act (AB 805)

There will no doubt be some adjustment period to the new revised Davis-Stirling Act. However, the reality that the revision to the Davis-Stirling Act was really simply rewritten rather than changed in any significant way. This should provide comfort to managers and board members anticipating the new law and its implementation coming in January 2014.

I recently spoke to the Inland Empire Chapter of CAI regarding the upcoming changes to California’s Common Interest Development Act, or the Davis-Stirling Act, which takes effect on January 1, 2014. In preparation for that presentation, it became clear that despite the numerous resources available regarding the revised Act, many people are still concerned and wonder how the new law will impact their community association. The good news is that there is no reason to panic. The revisions to the Davis-Stirling Act were designed to be non-controversial. As a result, the substantive changes to the law are relative few in number and small in impact. In addition, there are some advantages to revising the Davis-Stirling Act. The current version of the Act has several “issues.” Sections which are logically related to each other are not located near each other in the Act making locating all the relevant sections difficult and confusing. Also, several sections are excessively long and complicated making them hard to read. The revisions to the Act make several changes which address the current version’s short comings. These include changes which group related provisions in a more logical order, long sections are divided into shorter, easier to read sections, more consistent terminology is used throughout the Act, and governance procedures are standardized. That does not mean there aren’t some disadvantages, however. The most significant of which is that those of us who deal with the Davis-Stirling Act will have to learn all over again what code sections contain various provisions due to the complete renumbering of the Act.

While a board may want to consider amending the governing documents, there is no legal requirement to do so. However, the new law (Civil Code section 4235) allows a board to amend the governing documents to update references to various sections of the Davis-Stirling Act by a board vote, allowing boards to avoid a member vote to amend the CC&Rs in this limited circumstance.

The following highlights the changes to the Act which we find to be the most significant. There are some additional changes which are not addressed in this article because few will ever come across them (such as the change in who can sign an amendment to a condo plan), but the changes you are most likely to encounter are covered.

  1. Notice and Delivery – One of the most significant changes in the Davis-Stirling Act is how an association can give “notice” to its members. New Civil Code section 4045 allows for “general notice” to be given by (1) first class mail; (2) email, facsimile, or other electronic means upon receipt of written consent to receive notice in that fashion; (3) inclusion in a billing statement, newsletter or other document Continue reading “A Guide to the Revised Davis-Stirling Act (AB 805)”

California Department of Real Estate Warns of Dangers of Underfunded Reserve Accounts

One of the most difficult choices a board makes when preparing an association’s annual budget is whether to increase assessments to fund the association’s reserve account, or to keep assessments low and delay funding the reserve account until a later day, if at all. The reasons boards may under fund reserves are varied. It may be as innocent as the reality that association is having difficulty collecting assessments and all the money collected is necessary to meet operating expenses, or it may be a misguided desire by the board to artificially keep assessments low in fear that the members will not support an increase in order to fund the reserve accounts. After all, it can be a so easy to make the choice to keep assessments low. Raising assessments, even if it is necessary to fund reserve accounts, is rarely a popular decision. It is much easier to put off funding the reserve account, keep assessments low and keep the members happy, at least in the short term. However, failing to properly fund reserves is rarely, if ever, a good decision for the board to make. While some boards rely on what is a technically accurate statement that associations in California are not legally required to fund reserve accounts that is a dangerous and often short sided understanding of reserve accounts, and their importance to the financial health of the association. Whatever the cause, failing to fund reserve accounts pursuant to a plan developed in conjunction with the reserve study can place the association’s financial health at risk. So much so, that the California Department of Real Estate recently took the extraordinary step of issuing a consumer warning for underfunded homeowners associations.

Failing to properly fund reserve accounts results in a significantly increased likelihood of large special assessments, possibly in the thousands or tens of thousands of dollars to pay for necessary repairs. In addition, underfunded reserves can lead to lower property values within the association as buyers become wary of properties which are likely to be subject to large special assessments. Lastly, failing to properly fund reserves may make the properties in the community ineligible for federal loans issued by Freddie Mac and Fannie Mae, reducing the market of potential buyers, further reducing property values.

While the DRE consumer warning is not the only reason that boards should take steps to ensure they are properly funding reserve accounts, it highlights the importance of doing so. The risks in failing to fund reserves are too great to be ignored. Boards should heed the DRE warning and use their best efforts to start properly funding that reserve account piggy bank.

New Davis-Stirling Act Signed into Law

AB 805 takes effect on January 1, 2014, and comprehensively reorganizes and recodifies the Davis-Stirling Common Interest Development Act. The bill also revises and recasts provisions regarding notices and their delivery, standardizes terminology, establish guidelines on the relative authority of governing documents, and establish a single procedure for amendment of a common interest declaration. The bill also establishes an express list of conflicts of interest that may disqualify members of a board of directors of an association that manages a common interest development from voting on certain matters.

Governor Brown recently signed AB 805 and AB 806 into law.

AB 805 takes effect on January 1, 2014, and comprehensively reorganizes and recodifies the Davis-Stirling Common Interest Development Act. The bill also revises and recasts provisions regarding notices and their delivery, standardizes terminology, establish guidelines on the relative authority of governing documents, and establish a single procedure for amendment of a common interest declaration. The bill also establishes an express list of conflicts of interest that may disqualify members of a board of directors of an association that manages a common interest development from voting on certain matters. The bill also, among other things, revises provisions related to elections and voting, establish standards for the retention of records, and broadens the requirement that liens recorded by the association in error be released.

AB 806 deletes all of the existing cross-references to the Davis- Stirling Act in other code sections and replaces them with the new code sections created by AB 805.

Stay tuned for more details on what specific new changes the new law brings for community associations. While we are sure the signing of the new bill will raise some questions, there are no earth shattering changes, and managers and boards can rest assured that the changes are manageable. We will be preparing a guide to the new Davis-Stirling Act to help managers and boards understand the new law. Make sure to stay tuned to HOABrief.com, or sign up for our email newsletters to stay current on laws impacting California community associations.