HOA Law Blog

By Sandra L. Gottlieb, Esq., Senior Partner and Mark Petrie, Marketing Coordinator at SwedelsonGottlieb

On August 12, 2015, Governor Brown signed AB 596, which adds the following two new required disclosures to the Annual Budget Report for California condominium associations (this does not include planned developments or other common interest developments).

(10) When the common interest development is a condominium project, a statement describing the status of the common interest development as a Federal Housing Administration (FHA)-approved condominium project pursuant to FHA guidelines, including whether the common interest development is an FHA-approved condominium project. The statement shall be in at least 10-point font on a separate piece of paper and in the following form:

“Certification by the Federal Housing Administration may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the Federal Housing Administration.”

(11) When the common interest development is a condominium project, a statement describing the status of the common interest development as a federal Department of Veterans Affairs (VA)-approved condominium project pursuant to VA guidelines, including whether the common interest development is a VA-approved condominium project. The statement shall be in at least 10-point font on a separate piece of paper and in the following form:

“Certification by the federal Department of Veterans Affairs may provide benefits to members of an association, including an improvement in an owner’s ability to refinance a mortgage or obtain secondary financing and an increase in the pool of potential buyers of the separate interest.

This common interest development [is/is not (circle one)] a condominium project. The association of this common interest development [is/is not (circle one)] certified by the federal Department of Veterans Affairs.”
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Yes, it’s true, California now requires associations with 25 or more separate interests that have a “public pool” must follow new (2015) daily and monthly testing requirements for the pool water. (Associations with less than 25 separate interests still have to test at least two times per week and at intervals no greater than four days apart.) There are no exceptions for homeowners associations; rather, the statute includes homeowners associations in the definition of “public pools”. Although associations of all sizes should ensure compliance with the entirety of the Pool Maintenance and Operation requirements of the California Code of Regulations, the big ticket obligations are as follows:

1. New parameters for water characteristics 2. Strict monitoring of public pool facilities (daily if 25 or more separate interests) and requirements for written records 3. Enforcement of specific safety and first aid equipment 4. Requirements that newly constructed public pool enclosures have at least one keyless exit and self-closing latches 5. Imposition of health restrictions for employees or pool users.

As mentioned above, associations with 25 or more separate interests are now obligated, on a daily basis, to test pool and spa/jacuzzi water and to keep a log of the testing daily. Testing can be done automatically if local enforcing authorities allow for same; otherwise, the manual test results must be maintained onsite as part of the association’s written records for at least a two-year period.

By Sandra L. Gottlieb, Partner at SwedelsonGottlieb, California Community Association Attorneys

A regular question posed by the board members of our community association clients is, “Can or should Board meetings and/or meetings of members be recorded by audiotape or videotape?” While some members may advocate taping meetings in order to promote transparency, taping of association Board meetings and meetings of members is illegal, unless each and every attendee, including the Board members, approves of the recording, in advance. Regardless, it is our opinion that the Board should not allow taping of any association meetings.

California Penal Code, Section 632, states that it is a crime to record a conversation that would be expected to be confined to the parties present without the consent of those present. This statute makes exceptions to public gatherings that one would expect to be overheard, including any legislative, judicial or executive proceedings open to the public. But homeowners associations, unlike many other quasi-governmental agencies, are not required to have meetings open to the public. In fact, meetings are generally open only to members of the association. Thus, the statute supports the argument that there is an expectation of privacy among those in attendance at those meetings. Although minutes of meetings are to be made available, upon request, to homeowners within thirty (30) days after a meeting of the Board, thereby leading some to believe that the discussions are also intended to be made available to those attending the meeting, that is not the case. Minutes are only supposed to include brief descriptions of items of business, motions and resolutions, not discussion. Therefore, a recording of any meeting would include discussions, as well as back and forth banter and comments, not just resolutions. Further, free speech is inhibited if people know that their every word would be on the record. If a member insists on recording after being told to stop such recording so that the Board can conduct the business of the association, the Board should adjourn the meeting.