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Swimming Pools and the HOA

As the summer heats up, there’s nothing better than having easy access to a swimming pool. And not only does it keep you cool in the summer sun, having one on a condo building’s property can increase property values, attract potential buyers, and bring members of the community together to socialize. But with a pool comes great responsibility -- much of which falls on the HOA’s shoulders. Before your HOA installs a pool or opens an existing pool for the summer, consider a few things.   Maintenance Pools require permits and the HOA or property management company must be sure that those permits are up to date. It’s also the HOA’s responsibility to either perform daily maintenance or contract with a company to clean the pool and adjust chemicals. Lifeguards must also be hired and trained if you choose to have them available.   Setting Rules It’s important to have clear and clearly posted rules for your pool. Some HOAs write their own and others adopt them from town pools. Some rules to consider include requiring sign-in, forbidding glass containers, and requiring adult supervision for kids under a certain age.   Insurance Pools come with risk and must be properly insured. When purchasing a liability policy, your insurance company will ask a lot of questions about your pool -- whether it’s fenced, its posted hours, and whether there’s a lifeguard, among others. Your answers will help the insurance company ensure you’re properly covered. Some HOAs choose to have an umbrella policy for extra peace o......
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Spring Cleaning

Spring Cleaning
There’s nothing like flinging the windows open to let in some fresh air when the warm weather hits. It often inspires the desire to remove dust and grime that hid in the corners during the dark and chilly months of winter. That’s right – it’s spring cleaning time. And while that might mean for your residents that rugs are getting shampooed and spice cabinets are being reorganized, for a condo association it means something much different.   Many condo buildings will put a fresh coat of paint on the walls and hallways in the spring, clean windows in the common areas, clean all that winter salt and grime from the floors, and polish brass. It’s also the perfect time to trim the hedges and plant some colorful flowers in those long-dormant flower beds. Some condo associations use spring’s rebirth as the time to plan out the rest of the year – spring cleaning and maintenance projects to be finished by the fall followed by snow removal plans before spring happily rolls around again.   Spring is the time to repair any damage left behind by winter. Building managers should do a walk around the perimeter to check for cracks in the foundation, walls, sidewalks, or parking lots. Parking spot lines that faded under the snow should be repainted. It’s also a good idea to check on those boilers that worked hard all winter. They should be running efficiently so that they’re not wasting energy in the warmer months and should be in top shape in c......
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HOAs and Video Surveillance

HOAs and Video Surveillance
These days, cameras are everywhere. On the street, in parking lots, in our phones, in businesses, in drones … the list is endless. Chances are if you’re doing something anywhere but inside your own home, you’re being recorded.   Cameras are hailed as deterrent to crime and condemned as invaders of privacy. So should you consider using such a divisive piece of technology for your HOA property? There are several considerations if you’re thinking about it.   Right out of the gate, is it legal for an HOA to use video cameras? As it turns out, yes, it is. The only places they can’t be used are ones where homeowners have a reasonable expectation of privacy, like locker rooms and bathrooms. They also can’t be set up in such a way that they might record any part of a homeowner’s unit. But they can certainly be installed at front gates, near entrances, and in parking garages.  (Pilera recommends you confirm the above information with your state/attorney as it may vary)   So now that we know surveillance cameras are legal for an HOA, are they useful? Well, studies suggest that they’re helpful in reducing property crime like theft and car break-ins. Not only do the cameras serve as a deterrent, they help in identifying the criminals committing these crimes. So yes, as long as they’re regularly maintained, cameras are definitely useful.   Finally, does the HOA need to post signs regarding cameras in use on the property? The answer is no, there’s no law requiring si......
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How an HOA’s Board Works with a Management Company

How an HOA’s Board Works with a Management Company
A condo building has a board of directors that runs the property. Its members are elected and it runs the condo’s homeowners association. The board members have a lot of responsibilities that include collecting and managing HOA fees, handling legal issues, developing and enforcing rules and regulations for the building, maintaining the property, and regularly communicating with community members about finances, regulations, or anything else that needs to be discussed.   That’s a lot! And presumably, board members also have day jobs, because these elected positions typically don’t pay.    This is where a management company comes in. The overworked board members can delegate some of their responsibilities to a management company. In short, the board creates regulations and the management company enforces them. The management company secures insurance for the property, manages finances, communicates with residents, and prepares reports to keep the board aware of everything going on in the property, such as tasks the company has accomplished or detailed financial information.   A management company will never replace a board of directors, but it’s a useful tool for board members who simply are unable – or unwilling – to keep up with all the responsibilities their position entails.     Pilera is a best-of-class, easy-to-use, comprehensive online community management solution for apartments, condos, and associations. Pilera provides the easiest, most comprehensive data management capability available to property managers, leasing agents, boards of directors, and back-office personnel. Quickly and easily access whatever you need, whenever you need it, from wherever you need to be with ......
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Amending Your HOA Documents

Amending Your HOA Documents
In addition to any other documents that an HOA feels are important, there are three that form the foundation for any association: the Articles of Incorporation; the Bylaws; and the Covenants, Conditions & Restrictions.   These three documents are the ones you should give the greatest consideration when the time comes to update and/or amend your HOA documents. Most HOAs have a set time period for updating these items, and with good reason. Things can change quite a bit over a period of 10, 15, or 20 years.   There are plenty of things to look for when making amendments to your HOA documents. First, you should look to eliminate provisions that are obsolete, ones that are no longer enforced or observed. You should keep an eye out for provisions that are in conflict with any newly established bylaws.   It’s possible that when the HOA documents were drafted, they were not particularly well written. They might have been created on a budget, or by a deadline, and could be filled with ambiguity that will only be obvious upon review. They might not be particularly well organized (e.g., they might be missing a table of contents or paragraph headings). And there might just be typos and grammatical mistakes that were never corrected. All of these elements should be improved upon.   Finally, the documents should be updated so that they are reflective of the members’ current living experience, not that of members 15 or 20 years ago. As such, they should inc......
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Serve But Be Insured

InsuranceBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA One of my practice areas is insurance coverage work. I represent people and help businesses work out issues with insurance companies regarding whether a particular lawsuit, loss, or claim is covered by insurance. For many people and businesses, insurance is a must and coverage is a matter of everyday life and business practice. Drive a car, get insurance. Own a home, get homeowners insurance. Run a business, purchase a CGL policy. Get business interruption coverage. A gray area is when we are not quite acting as a person or a business. We are volunteering. We are working selflessly for others. For the common good. Sometimes we are paid. Sometimes we are not. The soccer league, church council, and the HOA cannot get along without us. There are important decisions to be made for the soccer league, for the church, and for the condominium complex. But those decisions have implications! People are affected by them. People are denied permission to do things. The HOA must act if it has information. If the collective “it” of the HOA knows of a dangerous condition, act it must, as we know. But what if only some of the directors are aware of the dangerous conditions? What if that director or directors do nothing? And what if someone gets hurt? He gets sued! And he could, in California, be personally liable for not acting on that knowledge. Yes, personally liable, separate and apart from the HOA ent......
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Insurance and Immunity for HOA

Metal ConcertBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA I like insurance law. Not many people do, but I do. But then again, I like heavy metal and not many people like that either. (Their loss. And my hearing loss. I digress). I like insurance law because it feels good to help policyholders obtain insurance coverage, and I am also rewarded when the insurance contract is upheld to enforce the mutual agreement of the parties -- insurance coverage is denied because there was no agreement to cover a particular loss. I work with both policyholders and insurance companies and I see both sides of the equation. Sometimes the law interjects to help or hinder the implications of the insurance contract in real-world situations, such as when a volunteer HOA director participates in negligent conduct that leads to an injury. In California, the Civil Code has some statutes that protect the volunteer director from the liability scenario we discussed last post. As a refresher, that director participated in conduct that was arguably negligent with respect to known criminal activity and ordered some lights installed in the common area removed. Later, someone got hurt and sued the HOA and that director for removing the lights and leading to a criminal assault. The director was a volunteer but nonetheless was potentially personally liable. Enacted a couple of years after that lawsuit, Civil Code §1365.7 provides some protection for similarly situated directors. That section provides immunity for a volunteer director of a residential HOA, ......
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United We Stand, Separate Interests We Sue?

HOABy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Continuing my theme of misquoted quotes and special rules for HOAs, let's talk about the individual unit owners. The HOA can be sued for issues in the common areas that lead to injuries or damage. What about the person who owns the unit near the common area? Doesn't he also -- as a tenant in common of the condominium project -- own an interest in that common area? Can he be sued as well? Ordinary principals of duty would suggest he could be. Take the prior case example about the unit owner that installs lights as an additional security measure to ward off crime she knows is happening near her unit. What if she knew about that burgeoning crime and did not take action? One factor mitigates attaching liability and it is the one that got the HOA in trouble in that case. We know it, right people? Control. In most cases, the owner of the "separate interest" -- i.e., the adjoining unit -- is not allowed to put anything in the common area. This is true even though the unit owner technically owns a piece of the common area by virtue of her ownership of the individual unit. This unit owner tried to effect a security measure in the common area and was rebuked by the HOA and one of its members. So it seems likely on that basis for the unit owner not to be sued. (There it was, the ......
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Condominiums, Covenants, and Restrictions

Common AreaBy Colin McCarthy, J.D., Robinson & Wood, San Jose, CA Everyone has their own story or has heard the stories. Those living in condominium complexes cannot so much as hang a Christmas decoration outside their unit without the blessing of the HOA or the CCRs. Everything outside the four interior walls is the condo owner's and everything outside is a "common area." The ins and outs of who can do what and who is responsible for what is subject to precise analysis of the CCRs and HOA established rules and regulations for each particular complex. But the general gist is that the HOA will be responsible for maintaining the common areas and the owner for maintaining his unit. What if an injury arises from lack of maintenance of the common area? Or the owner is not given permission to install, maintain, or repair something which, by doing, he thinks will prevent injury. The question thus arises after the inevitable injury: Who is responsible for that injury? In California, under such circumstances, the HOA "is, for all practical purposes, the Project's 'landlord.'"* In one case, a condominium project was beset by a crime wave. There was crime after crime. One condominium owner wanted to install a light near his unit to help prevent crimes from occurring there. The HOA denied him permission, citing the CCRs, which did not allow individual unit owners to install security apparatus. The HOA also argued that it was constrained by budget and majority membership approval of improving the ......
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Your HOA's Parks & Rec Department

By Ken Kmet, Condo Voice, Clearwater, FL Trending now within city and state governments is the notion that operational costs and budgets for 2013 will call for either higher taxes or fewer services. The sluggish economy, along with property values remaining still or down, is not helping avoid tax increases. Tax increases are not popular or politically welcomed, which means local governments nix services as the first option (even though raising taxes may be inevitable). So now you’re probably asking, “What does this have to do with community associations?”   If governments have to cut services, the first to go are usually the non-essential services with large budgets, i.e., the parks and recreation department. In addition to the traditional parks, city and county swimming pools may be closed, as well as ballparks, gymnasiums, tennis courts, and playgrounds. The total cost to operate these services and facilities is not just the cost of paying employees to police, repair, and maintain them. The costs for lighting and security are significant, as is the cost of liability insurance. The trickle-down effect to HOAs, condominiums, townhomes, neighborhoods, and deed-restricted communities will be that their common areas will become, in effect, private parks and recreational areas. Thus the resident, and resident’s family and friends, will use these facilities more. This will increase community associations’ operating budgets for repairs and maintenance, as well as increase the rate of aging, which will in turn force an increase in reserve budgets for their replacement costs. The covenants of most......
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