QUESTION: Our association's annual election meeting took place recently. Prior to the election, I telephoned the management company twice to ask for the names of the board candidates; however, the list of candidates was not available until the night of the meeting.
At that time I asked why the list (six candidates for five positions) was not sent prior to the meeting so that those who were unable to attend could vote by absentee ballot. The answer was that "for this type of election, absentee ballots are illegal in the state of California." The property manager stated that if members wanted to know for whom they were voting, they had to come to the meeting.
It's difficult for me to believe that each member is entitled to vote but is not entitled to know for whom he or she is voting. Please explain.
ANSWER: Most associations distribute proxy forms to all members so that if you are unable to attend the meeting your proxy may be counted for quorum purposes and, if authority is given on the proxy, your vote will be cast by another voting member whom you designate or an officer of the association.
The reason that many associations do not distribute absentee ballots is that any member who is nominated "from the floor" at the meeting would have a disadvantage and would probably not be elected.
Most of the attorneys whom I have consulted do not recommend the use of absentee ballots. I believe that it would have been proper for the manager to have given you the names of those who were on the list of nominees when you requested them. This verbal disclosure would have been helpful to you if you were considering nominating someone or running for the board yourself.
New Board Refuses to Repair Water Pipe
Q: Our condo complex is 17-years-old, and in the past few years a number of homeowners have had a water pipe break that runs under the concrete slab from the water heater to the kitchen sink. This requires breaking up the concrete slab under the kitchen floor so that he piping can be replaced.
In the past, this work has been accepted as a "common area" repair and has been paid for by the association through its insurance company.
Our current board refuses to pay for these repairs. They claim that there has been a change in the law, which now states that a waterline used exclusively by an individual homeowner is not association responsibility any more, even though it runs underneath the concrete slab foundation of my unit.
Are they correct? Has the law changed?
A: Recent legislation has clarified association responsibilities and owner responsibilities so that if the association's declaration (CC&R;'s) contains ambiguous wording or is not specific enough, the California Civil Code takes precedence.
Here is the portion of the California Civil Code, Section 1364 (a) which your board is probably referring to for guidance. The law states:
"Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest."
Note the important initial phrase: Unless otherwise provided in the declaration . . ., which means that you now must read your declaration to find out if the association is responsible for exclusive use common area.
The California Civil Code, Section 1351, provides the following definition:
" 'Exclusive use common area' means a portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the separate interest of interests."
Check with your local library or your county law library to read the entire section since I have only quoted portions of it.
If you need legal advice on the meaning or interpretation of this law, I urge you to seek the advice of an attorney who specializes in common-interest development law. Since I have not had the opportunity to review your association's declaration, I am unable to tell you whether your board is correct in declining to pay for your plumbing repairs.
Management Reluctant to Stop Loud Music
Q: My condo complex is having a problem with a noisy neighbor who blasts music all day long. I have called our security officers and the police. I have asked our manager to enforce our CC&Rs;, which specifically prohibit loud noises. The association has the authority to fine this neighbor, but the management seems to be reluctant to do so. What is my next step?
A: Have you contacted your neighbor yourself? That may be more effective than going through the association. You could invite the neighbor to your unit to hear what you are hearing.
Then, if you haven't contacted your board of directors, that should be your next move. It is the board's responsibility to oversee enforcement of the CC&R;'s. Usually, management carries out the association's enforcement procedures as directed by the board.
As you have learned, calling the security officers or police will only provide peace and quiet for a short time. As soon as the authorities are gone, the volume knob is probably turned up again as you go running for the earplugs.
The association needs to get the attention of the offending neighbor. One way to do this would be to send written notification of the violation, asking the owner to attend a hearing regarding the unacceptable noise levels. The notice of the hearing should also include the amount of the fine that will be levied if the board decides to levy a fine, what will happen if the owner does not attend the hearing and the procedure that will be followed if the owner continues to violate the rights of other owners.
If the offending neighbor is a tenant, then the association should be notifying and disciplining the owner of the unit, in addition to notifying the tenant.
If the association is unwilling to act or if the neighbor is totally uncooperative, you are entitled to bring suit to enforce the CC&Rs; or to simply enforce your right to peace and quiet. Consult an attorney if you are interested in getting a court order to prohibit the resident from playing loud music. I have heard of owners who used a sound engineer to measure the decibels of the music in order to prove that the noise coming into their unit was excessive.