Question: Can a board member remove records from our association office and house them in her own condominium, based on the claim that as secretary she is a "custodian" with such powers? Can you give a rule of thumb regarding the removal of association materials from the office?
Answer: To put the advice into a rule of thumb: No original homeowner association (HOA) records should ever be taken out of your designated office by anyone for any reason; nor should they be given to a management company for safekeeping, as lost records are still the board's responsibility.
Association documents do not belong to anyone except the association. Although the secretary is considered the custodian of records, that title does not mean that the person holding that office takes actual physical possession of them. The custodian of records ensures that the records remain intact, adds new records, knows the location of the records and makes them available as needed. When the HOA maintains an office, there's no reason for the records to be removed. Not only may it constitute a breach of the secretary's fiduciary duty to the homeowners and the HOA if any records are lost, destroyed or even altered, but it may expose the HOA to liability.
A nonprofit corporation is required by the California Corporations Code to make its records available for inspection by members or, in this case, homeowners, "at any reasonable time, for a purpose reasonably related to such person's interests as a member."
Even if your HOA does not have a designated office, it ought to maintain all its records in one location, under lock and key controlled by the board.
Must Roof Assessment Be Paid in Lump Sum?
Q: We live in a common interest development complex in Inglewood. The board has imposed a special assessment for roof replacements in the amount of $10,000 per residence. I know boards can assess, but they want the full $10,000 in one payment within 30 days. Is this legal? Can we refuse to pay a lump sum and, if we don't comply, what can the association do to us?
A: Properly managed associations have an understanding of their maintenance obligations and how those obligations will be funded. Smaller payments, over longer time periods, well in advance of any need, are often used to replenish or establish reserve funds to pay for these major repairs since the law dictates that reserve funds are to be used only for the purpose for which they were collected. Your association is permitted to specially assess for the maintenance of the common area, and it is required to assess for that purpose if it has to, but by law that may only be the amount required for the repairs. Under the Davis-Stirling Act, maintenance assessments require a vote of the homeowners, not just a vote by the board. A vote of the homeowners is required, according to Section 1366(b) of the Act, when special assessments "in the aggregate exceed 5% of the budgeted gross expenses of the association for that fiscal year" and "without the approval of owners, constituting a quorum, casting a majority of the votes at a meeting ... of the association" that assessment is "invalid." Only after the homeowners have voted would such an assessment be permitted.
Section 1366.1 of the act limits the amount of the assessment to "the amount necessary to defray the costs for which it is levied." The law requires your board to conduct a reasonably competent visual inspection of major common area components, like the roof, that the association is obligated to repair if the current replacement value of the major component is equal to or greater than one-half of the association's gross budget.
Completing these obligations before a vote allows homeowners to determine whether $10,000 is the correct amount to assess. Homeowners have the ability to vote to spread out the assessment over time, and if repairs are an emergency, other conditions may apply, but roof repairs can and should be voted on by all homeowners.
If your board has met all the requirements of the act, they have to give each homeowner notice of not less than 30 nor more than 60 days of the special assessment but are able to demand the assessment in a lump-sum payment. The act permits the board to use its discretion and extend the due date for the assessment but that does not mean they must allow installments.
Be aware the potential exists for the association to foreclose on your home under the act if you do not pay the special assessment, even though the board may not have fully complied with the law. You should contact an attorney to try to determine whether the law has been followed by your board and if not, whether you have a cause of action against them.
Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator. Both live in common interest developments and have served on various association boards. Please send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: CIDCommonSense@aol.com.