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.

AB 2273 Signed into Law. Associations Should Record “Request for Notification” to be Notified of Foreclosure Sales within Association

AB 2273 was signed into law by Governor Jerry Brown. The bill requires foreclosing parties to record a sale within 30 days of the sale. This will benefit associations since it now requires public notice as to who owns the property, and where they may be contacted so that associations can properly invoice all owners for assessments.

AB 2273 has been signed into law by Governor Jerry Brown. The bill requires foreclosing parties to record a sale within 30 days of the sale. This will benefit associations since it now requires public notice as to who owns the property, and where they may be contacted so that associations can properly invoice all owners for assessments.

In addition, AB 2273 shortens the time for foreclosing parties to notify associations that they are the new owners. However, in order to take advantage of this aspect of the new law, associations will have to have recorded a “Request for Notification” prior to the property receiving a notice of default. Where an association has recorded a “Request for Notification,” the foreclosing party must notify the association within 15 days after the date of sale.

All California community associations should contact their legal counsel to make sure that a proper “Request for Notification” has been recorded so that the association can receive the benefits that the new law provides. This will greatly help to ensure that associations receive notice of foreclosure, and the identity of the new owner, as soon as possible so that assessments can be charged to the proper party.

Congratulations to CAI, who sponsored the bill, and worked hard to get it passed for the benefit of all California community associations!

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.

My Guest Post on CAI CLAC Blog regarding Newly Enacted Legislation Affecting Community Associations

I recently submitted a guest post on the CAI California Legislative Action Committee (CLAC) blog regarding AB 1720, and the new requirment it imposes on California gated communities to provide access to licensed private investigators for the limited purpose of effecting service of process. You can read the post and the analysis of the impact of AB 1720 here.

“YAY! I’m on the Board!” or, “OMG, What Did I Get Myself Into?”

Boards serve a necessary function in any corporation, and especially within a homeowners association. It would be impossible for an association to function without one. In an association, the buck ultimately stops with the board. The board is elected by the members of the association to accomplish the tasks required of an association by the governing documents. Volunteer board members are accountable to the association itself, as well as to the owners within the community. While the board can, and should, rely on opinions of experts and information presented by committees, decisions affecting the community are the ultimate responsibility of the board, and the board members will be held accountable for these decisions. While the position is voluntary, board members should take their fiduciary responsibility to the association and its members seriously.

Despite the important role the board plays in the association, board members must keep in mind that they have been elected by the members of the association to conduct the business and affairs of the association. Board members should not become power hungry or otherwise harass owners. Likewise, owners must respect the authority of the board to conduct the association’s business and enforce its documents.

Board members must remember that the owners must be kept informed of the board’s activities and make sure that proper communication with the other owners is maintained. In deciding what to communicate to members, board members should consider what they would like to know and how they would like to be treated as a non-board member owner, and strive to act in that manner as a board member.

Fiduciary Duty & Business Judgment Rule  

In addition to the duties set forth in the CC&Rs, Bylaws and Articles of Incorporation, board members have additional duties imposed by law. While all of the duties and obligations of a board member cannot reasonably be set forth in a short article, we will highlight some of the most important duties and obligations a new board member must understand: that of their fiduciary duty to the association and its members, the business judgment rule, and the duty to keep communications with the association’s attorney confidential.

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