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8/14/2019 Accell 2013 Fall Advisor
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Accell Advisor
Save the Date!
Board Member AppreciationNight
October 30, 2013
Accell Property Management
appreciates the time and energy
our volunteer Board members
put toward bettering their
communities. To say Thank
You, we would like to invite
you to our third annual Board
Member Appreciation Night.
Join us on October 30thfor hors
doeuvres, refreshments, expert
advice and prizes.
Fall Landscape PrioritiesOctober is the time to aerate turf areas. At mid-month, fertilize cool
season lawns and reseed.
Clean out v-ditches to prepare for winter rains. Avoid needless water run-
off and remove debris from drainage areas.
Summer has gone, and more moisture is in the air. Adjust the irrigation
schedules to reflect the current changes in the weather. Be water smart!
Remove diseased plant material, and cut back the native landscapes forfire safety. Make sure fuel modification zones have been cut back.
Multiply plant material in the landscape. October is the time to propagate
clumping perennials and bulbs (e.g. agapanthus, day lilies, and iris).
Bait snails in planters to rid them from planter beds.
Fall is the best time to plant trees. Trees establish roots during the winter
and start their life strong in spring with new growth above ground.
Rainy weather can bring new weeds to surface. Remove broadleaf weeds
in turf areas and spray with post emergent.
F A L L 2 0 1 3
The
By Tierra Verde Landscape, Inc.
8/14/2019 Accell 2013 Fall Advisor
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THE ACCELL ADVISOR FALL 2013
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Membership rights with regard to the attendance andparticipation in Board meetings is an important
component of the laws governing homeowners
associations (HOAs). Civil Code Section 1363.05,
known as the Common Interest Development Open
Meeting Act, states that any member of the [HOA]
may attend meetings of the board of directors This
right is central to keeping HOA members apprised of
the issues affecting their community and the ways in
which the Board is discharging its duties under the
HOAs governing documents.
However, one issue that surfaces from time to time
deals with the extent to which a HOA is required to
allow a member to attend a Board meeting with her
attorney, or to allow the members attorney or agent to
attend the Board meeting on the members behalf. This
issue may be complicated further if the owner of a
property (the member under the HOAs governing
documents) is an entity (i.e., a business organization or
family trust).
Fortunately, the recent case of SB Liberty, LLC v. Isla
Verde Association, Inc. (SB Liberty), will help resolve
this issue and will provide valuable guidance for HOAs
moving forward
In SB Liberty, members of the HOA, the Shorts, held
their property in a family trust and eventually in a
wholly owned LLC, SB Liberty LLC, which named the
owners as a the designation managers and officers of the
LLC.
In relation to an ongoing architectural dispute between
the Shorts and the HOA, the Shorts requested that their
attorney attend a scheduled Board meeting on their
behalves. Upon being notified by the Shorts attorney of
his anticipated attendance at the upcoming Board
meeting, the attorney for the HOA informed him that
he was not entitled to attend Board meetings, and that
his attendance at the same would violate certain ethical
rules prohibiting communications with represented
parties without the permission of their counsel. Despite
the HOAs denial, the attorney for the Shorts reiterated
his intent to attend the meeting as the representative
of his clients. On the day of the meeting, the Shorts
attorney showed up as indicated, and refused to leave,
forcing the Board to adjourn the meeting to another
location.
In response to the Boards denial, the Shorts executed a
Specific Power of Attorney granting their attorney the
right to attend board meetings on their behalf. Upon
the Boards continued refusal to allow the Shorts
attorney to attend the Board meetings, the Shorts filed
the lawsuit in question, seeking an injunction against
the HOAs refusal to grant their attorney representative
access to the meeting. The lower court found in favor of
the HOA, and Shorts appealed.
On appeal, the court found again for the HOA, noting
that under Civil Code Section 1363.05, only members
of the HOA are granted the right to attend Board
(Continued on page 4)
By Kai MacDonald, The Tinnelly Law Group
Who is Entitled to Attend Board Meetings on anOwners Behalf?
8/14/2019 Accell 2013 Fall Advisor
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THE ACCELL ADVISOR FALL 2013
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Governor Brown Signs Clean Up Legislation forRevised Davis-Stirling Act
By Robert M. DeNichilo of DeNichilo & Lindsley, LLP for CAI-CLAC
California Governor Jerry Brown recently signedSB 745
into law. The bill is a multi-issue omnibus bill, and as to
community associations primarily acts to clean up
some issues related to the reorganizing of the Davis-
Stirling Common Interest Development Act, which
becomes effective on Jan. 1, 2014. As enacted in 2012,AB
805 reorganized and rewrote the Davis-Stirling Act in a
new part of the California Civil Code. As often happens
with such a significant undertaking, items are
inadvertently omitted, or changes in the law are notincorporated in time to be included in the bill. SB 745
serves to rectify those types of issues.
One of the inadvertent omissions in AB 805 dealt with
how a document could be delivered to an association.
As enacted by AB 805, new Civil Code section 4035
allowed for documents to be delivered to an association
in a wide variety of ways, including email, fax or other
electronic means, or personal delivery if the association
had agreed to such methods of delivery. However, mail
was omitted as an acceptable way to deliver documentsto an association. SB 745 amends section 4035 to also
allow for delivery of documents to an association via
first-class mail, postage prepaid,registered or certifiedmail, express mail, or overnight delivery by an express
service center.
In addition, two bills were enacted in 2012, which
amended three provisions of the former Davis-Stirling
Act (which is still current until the end of 2013). As both
bills were enacted after AB 805, the provisions of those
bills were not included in the new Davis-Stirling Act. SB745 corrects this problem.
One of the issues addressed by this correction is the
requirement to have a person present at a physical
location where members of an association can listen to
the board transact business if a board meeting is held
telephonically. As enacted, AB 805 required that at least
one director be present at such a location. SB 745
amends Civil Code section 4090 to restore the option of
allowing the person required to be present to be a
director or a person designated by the board. This
gives boards some flexibility with respect to telephonic
meetings, and allows for the board to designate
someone, such as the associations manager, to be
present at a physical location for members to listen to
the board meeting rather than requiring that at least
one director be present at the location.
SB 745 also clarifies several of thenew provisions in thenew Davis Stirling Act. New Civil Code section 4205provides guidance as to which of an associations
governing documents controls if there is a conflict
among thedocuments. As enacted in AB 805, there issome ambiguity as to whether section 4205 also defines
whena conflict exists. As that was not the intention of
the legislature when it enacted AB 805, SB 745 amends
the language of section 4205 to avoid any
misunderstanding regarding the purpose and intention
of the statute.
New Civil Code section 4070 is also amended by SB 745to authorize an action that is required to be approved
by a majority of a quorum of the members at a duly held
meeting at which a quorum is present to, instead, be
approved by a majority in a duly held election in which
a quorum is represented, thereby also applying the
statute to elections conducted bywritten ballot.Lastly, SB 745 amends the form for billing disclosures,
and prohibits cancellation fees for requests for
documents, as specified.
http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtmlhttp://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB805&search_keywords=http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB805&search_keywords=http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB805&search_keywords=http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB805&search_keywords=http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml8/14/2019 Accell 2013 Fall Advisor
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meetings. In relevant part, Section 1363.05 states that, any
member of the association may attend meetings of theboard of directors. Utilizing a combined analysis of 1363.05
and the definition of member set forth in the HOAs
governing documents, the court determined that the right
to attend and participate in Board meetings does not extend
to attorneys, designated representatives, or any other party,
other than the owner of the property.
The court then clarified who may attend Board meetings
where an entity, such as SB Liberty, owns property within a
HOA. Per the terms of the Corporations Code, the court
noted that the business affairs of such entities (LLCs) aremanaged by either (1) the members, or (2) the manager set
forth in the articles of organization. As such, the court
concluded that only those individuals are entitled to
represent the interests of the LLC during Board meetings.
As the Shorts attorney was not an authorized manager or
member of SB Liberty, LLC, the court determined that there
was no basis, either under California statute or the HOAs
governing documents, which supported his right to attend
the Board meetings.
THE ACCELL ADVISOR FALL 2013
Continued from page 2
In closing, the court noted that in light of their finding
that only members have a right to attend Boardmeetings, it logically followed that the Board had the
authority to determine how to conduct its meetings and
thus, the power to prevent a non-member from attending
and participating in those meetings.
lthough the courts ruling in SB Liberty provided much
needed clarification with respect to the issue of whom is
entitled to attend Board meeting, it is important to note
that governing documents vary from HOA to HOA, and
may therefore contain
language granting additionalrights or imposing further
limitations. As such, prior to
denying a non-owner, such as
an owners attorney, access to
a meeting, the Board should
erform a thorough review o
the language contained in the
governing documents, and i
necessary, seek the guidance
of the HOAs legal counsel.