CLUBHOUSE RENTAL AGREEMENT...

Started by NoelleC3 • 13 replies • 1974 views

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NoelleC3
Posts: 43

Posted:

Our board of directors recently adopted a new rental agreement for private use of the clubhouse. ( parties etc. )

It clearly states NO Alcohol is to be served or allowed in the clubhouse. If found to have such, the 300 dollar deposit will be retained...

is this sounding just bonkers?
We never have had an issue with drunken parties in the past, and I have lived here 9 years.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Many places limit what type of activity can be done in places they rent. If the person doesn't like the policy they can look elsewhere. It's the rule your Board adopted. To change it, you should run a petition through the neighborhood and/or get elected to the board.

GlenL (Ohio)
Posts: 5,491

Posted:

As Tim stated under California law if the rule was properly enacted you have 30 days to gather enough votes to veto it. This rule was enacted as I recall due to your complaints and I would hazard a guess that the BOD is trying to protect the HOA from litigation where someone leaves the clubhouse drunk and injures someone.

This is from davis-stirling.com:

Adopting and Changing Rules
"Operating Rules" are defined by California's Davis-Stirling Act as any regulation adopted by the board of directors of a condominium or homeowners association that applies to the management and operation of the association or the conduct of its business and affairs. Civil Code §1357.100. This includes pets, parking, use of the common areas, member discipline, architectural standards, election procedures, any schedule of monetary penalties, etc. Civil Code §1357.120(a).

Excluded are decisions relating to common area maintenance, a specific matter (as opposed to a general policy), assessment amounts, a nondiscretionary rule change required by law, or a rule that repeats existing law or the association's bylaws, CC&Rs or articles of incorporation. Civil Code §1357.120(b).

Enforceability. As provided for in Civil Code §1357.110, an operating rule is enforceable if:

* in writing,
* within the board's authority,
* consistent with governing law and the associations governing documents,
* adopted in good faith, and
* reasonable

Notice of Proposed Change. At least 30 days before a vote on adopting or amending an operating rule or change in fine schedule, the board must mail a copy of the proposed change to the members, along with an explanation of their purpose and effect. Civil Code §1357.130(a).

Adoption in Open Meeting. After the 30-day period, the board may adopt the rules at a duly noticed open meeting of the board, taking into consideration of any comments made by association members. Civil Code §1357.130(b).

Notice of Adoption. Within 15 days of voting on the rules, the board must notify the membership of the results of the vote. Civil Code §1357.130(c).

Membership Veto. The membership has a limited right to veto new rules and rule changes.

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NoelleC3
Posts: 43

Posted:

Glen,

You have been most helpful..
NO rules or changes in the rental agreement was sent to our membership to view, nor was it discussed in open session, nor was it ever on our posted agenda's.

Saying that, the only thing that prompted me to find out about new "renta" agreement was I asked to rent the room for a holiday party. These changes were done in "executive" session according to our manager with whom I asked about the 4 paged headache... he said "t was just done".

I plan on making the new rental agreement avaialble to our membership via hard copies.. and give them to review themselves. I feel we have some rights vis DSA that may of been violated. Or at least not observed.

NoelleC3
Posts: 43

Posted:

his rule was enacted as I recall due to your complaints and I would hazard a guess that the BOD is trying to protect the HOA from litigation where someone leaves the clubhouse drunk and injures someone.

THere were never any complaints about alcohol use, drunk and disorderly or problems known to anyone.

MarleneP (New Jersey)
Posts: 7

Posted:

Assuming the BOD is concerned about liability, did they first check with their insurance company to see if there was a way to address the concern without establishing a rule prohibiting alcohol? We rent our clubhouse to residents and do not prohibit alcohol, however, the renter must show proof of at least $500,000 liability coverage on their homeowner's insurance policy, which is tranferrable to the clubhouse if they are renting it for a private party according to our insurance company. Boards generally shouldn't make rules if there is a way to address the concern without a rule.

If my board prohibited alcohol, we would see a reduction in rental applications.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By NoelleC3 on 11/03/2010 4:53 AM
his rule was enacted as I recall due to your complaints and I would hazard a guess that the BOD is trying to protect the HOA from litigation where someone leaves the clubhouse drunk and injures someone.

THere were never any complaints about alcohol use, drunk and disorderly or problems known to anyone.

I meant your ongoing battle over who gets the clubhouse for free, which you have posted here numerous times. As to the new rule; if what you posted is accurate on how the rule came about the BOD has problems on several levels. The rule should have been on the monthly agenda and should not have been done in ES.

Executive Session
Purpose. Executive sessions are provided for by statute so that boards can address issues which involve privileged information or matters of a private nature. Civil Code §1363.05(b). As a result, homeowners do not have a right to attend executive sessions of the board. Boards may go into executive session for the following matters:

1. Legal Issues. Current and potential litigation matters may be discussed in executive session. This preserves attorney-client privilege, litigation strategy and settlement strategies. The association's attorney does not need to be present either in person or by phone for the board to meet in executive session to discuss legal issues.

2. Formation of Contracts. So as to avoid unfair bidding practices, the board may meet in executive session to review bids and vote on contract proposals (termination of contracts is also a consideration).
3. Disciplinary Hearings. Boards should meet in executive session for all disciplinary hearings. The accused member is entitled to attend the executive session.

4. Personnel Issues. Personnel matters include, but are not limited to, hiring, firing, disciplinary matters and performance reviews.

5. Payment of Assessments. Board may meet with members in executive session to discuss requests by such members for payment plans for delinquent assessments.

Who May Attend Executive Session? Directors, managers, recording secretaries, association attorneys, members subject to disciplinary action as well as witnesses called by either side (but only for that portion of meeting involving that person), and others invited by the board (such as vendors bidding on a project) may attend executive sessions.

Read more: Executive Sessions http://www.davis-stirling.com/MainIndex/ExecutiveSessions/tabid/1769/Default.aspx#ixzz14Ees72t8
from Davis-Stirling.com by Adams Kessler PLC

Studies show that 5 out of 4 people have problems with fractions

NoelleC3
Posts: 43

Posted:

Now, the agreement that says NO alcohol was emailed to our management and board members. Our president mentioned that "alcohol" could be used, but the board simple will not police the situation. I really think the contract and rules need to be reworked. WHat she says is "the interpretation " of it , is NOT what it says. ANd it clearly reads that they can and will keep any deposits on those those who infract the rules.

I need the membership involved at this point. Not just lonely me. It's time to bring this out for others to read and to understand just what they are signing.

NoelleC3
Posts: 43

Posted:

Contractual agreements are not Rules is also what I was told... by our President with her early morning mail.

NoelleC3
Posts: 43

Posted:

GLEN!! I wanted to post this to you as I felt it was worthy of a good laugh.

I had to a family member of mine who is a family practice lawyer. As we were talking the actual contract and agreement was sticking out of my purse. I happened to see it and pulled it out for a quick review by my family member. Grant it, she is not an HOA atty, but she really wanted to see what i given as an agreement.

It took a few seconds to skim over the 4 paged agreement.

1.) It's has serveral conflicting rules!! 2.) Simple every day language mixed and cut into a legal agreement that appears cut and pasted and simple words added to "make more appropriate" for our HOA use. 3.)

I was told to bring this back to the management company and ask if I got a rough draft! It was poorly written, not consistent, worst of all... conflicted itself. I brought it in, and it was "the approved" copy by our HOA BOD.

I suggested as I was told, not to sign such a poorly written elementary document. I circled all the mispellings, confliciting rules and told them to clean it up and then present it to the homeowners... it was an approved draft that should of never of been ok'd.

NoelleC3
Posts: 43

Posted:

MaryA1 (Arizona)
Posts: 388

Posted:

Noelle,

FYI, copied below are the applicable D-S statutes pertaining to board adopted rules. You are not required to sign the rule and if the members do not vote to veto it you will be obligated to abide by it should you decide to rent the clubhouse. On the other hand, if you do not like the clubhouse agreement and would not feel comfortable signing it, then you are free not to rent the clubhouse.

--------------------------------------------------------------------------------
Civil Code §1357.110. Validity and Enforceability of Operating Rules.

An operating rule is valid and enforceable only if all of the following requirements are satisfied:

(a) The rule is in writing.

(b) The rule is within the authority of the board of directors of the association conferred by law or by the declaration, articles of incorporation or association, or bylaws of the association.

(c) The rule is not inconsistent with governing law and the declaration, articles of incorporation or association, and bylaws of the association.

(d) The rule is adopted, amended, or repealed in good faith and in substantial compliance with the requirements of this article.

(e) The rule is reasonable.

Civil Code §1357.130. Notice of Proposed Rule Change.

(a) The board of directors shall provide written notice of a proposed rule change to the members at least 30 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. Notice is not required under this subdivision if the board of directors determines that an immediate rule change is necessary to address an imminent threat to public health or safety or imminent risk of substantial economic loss to the association.

(b) A decision on a proposed rule change shall be made at a meeting of the board of directors, after consideration of any comments made by association members.

(c) As soon as possible after making a rule change, but not more than 15 days after making the rule change, the board of directors shall deliver notice of the rule change to every association member. If the rule change was an emergency rule change made under subdivision (d), the notice shall include the text of the rule change, a description of the purpose and effect of the rule change, and the date that the rule change expires.

(d) If the board of directors determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change; and no notice is required, as specified in subdivision (a). An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. A rule change made under this subdivision may not be readopted under this subdivision.

(e) A notice required by this section is subject to Section 1350.7.

Civil Code §1357.140. Member Veto of Rule Changes.

(a) Members of an association owning 5 percent or more of the separate interests may call a special meeting of the members to reverse a rule change.

(b) A special meeting of the members may be called by delivering a written request to the president or secretary of the board of directors, after which the board shall deliver notice of the meeting to the association's members and hold the meeting in conformity with Section 7511 of the Corporations Code. The written request may not be delivered more than 30 days after the members of the association are notified of the rule change. Members are deemed to have been notified of a rule change on delivery of notice of the rule change, or on enforcement of the resulting rule, whichever is sooner. For the purposes of Section 8330 of the Corporations Code, collection of signatures to call a special meeting under this section is a purpose reasonably related to the interests of the members of the association. A member request to copy or inspect the membership list solely for that purpose may not be denied on the grounds that the purpose is not reasonably related to the member's interests as a member.

(c) The rule change may be reversed by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum), or if the declaration or bylaws require a greater proportion, by the affirmative vote or written ballot of the proportion required. In lieu of calling the meeting described in this section, the board may distribute a written ballot to every member of the association in conformity with the requirements of Section 7513 of the Corporations Code.

(d) Unless otherwise provided in the declaration or bylaws, for the purposes of this section, a member may cast one vote per separate interest owned.

(e) A meeting called under this section is governed by Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title 1 of, and Sections 7612 and 7613 of, the Corporations Code.

(f) A rule change reversed under this section may not be readopted for one year after the date of the meeting reversing the rule change. Nothing in this section precludes the board of directors from adopting a different rule on the same subject as the rule change that has been reversed.

(g) As soon as possible after the close of voting, but not more than 15 days after the close of voting, the board of directors shall provide notice of the results of a member vote held pursuant to this section to every association member. Delivery of notice under this subdivision is subject to Section 1350.7.

(h) This section does not apply to an emergency rule change made under subdivision (d) of Section 1357.130.

NoelleC3
Posts: 43

Posted:

Quote:

Posted By MaryA1 on 11/06/2010 2:10 PM
Noelle,

FYI, copied below are the applicable D-S statutes pertaining to board adopted rules. You are not required to sign the rule and if the members do not vote to veto it you will be obligated to abide by it should you decide to rent the clubhouse. On the other hand, if you do not like the clubhouse agreement and would not feel comfortable signing it, then you are free not to rent the clubhouse.

--------------------------------------------------------------------------------
Civil Code §1357.110. Validity and Enforceability of Operating Rules.

An operating rule is valid and enforceable only if all of the following requirements are satisfied:

(a) The rule is in writing.

(b) The rule is within the authority of the board of directors of the association conferred by law or by the declaration, articles of incorporation or association, or bylaws of the association.

(c) The rule is not inconsistent with governing law and the declaration, articles of incorporation or association, and bylaws of the association.

(d) The rule is adopted, amended, or repealed in good faith and in substantial compliance with the requirements of this article.

(e) The rule is reasonable.

Civil Code §1357.130. Notice of Proposed Rule Change.

(a) The board of directors shall provide written notice of a proposed rule change to the members at least 30 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. Notice is not required under this subdivision if the board of directors determines that an immediate rule change is necessary to address an imminent threat to public health or safety or imminent risk of substantial economic loss to the association.

(b) A decision on a proposed rule change shall be made at a meeting of the board of directors, after consideration of any comments made by association members.

(c) As soon as possible after making a rule change, but not more than 15 days after making the rule change, the board of directors shall deliver notice of the rule change to every association member. If the rule change was an emergency rule change made under subdivision (d), the notice shall include the text of the rule change, a description of the purpose and effect of the rule change, and the date that the rule change expires.

(d) If the board of directors determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change; and no notice is required, as specified in subdivision (a). An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. A rule change made under this subdivision may not be readopted under this subdivision.

(e) A notice required by this section is subject to Section 1350.7.

Civil Code §1357.140. Member Veto of Rule Changes.

(a) Members of an association owning 5 percent or more of the separate interests may call a special meeting of the members to reverse a rule change.

(b) A special meeting of the members may be called by delivering a written request to the president or secretary of the board of directors, after which the board shall deliver notice of the meeting to the association's members and hold the meeting in conformity with Section 7511 of the Corporations Code. The written request may not be delivered more than 30 days after the members of the association are notified of the rule change. Members are deemed to have been notified of a rule change on delivery of notice of the rule change, or on enforcement of the resulting rule, whichever is sooner. For the purposes of Section 8330 of the Corporations Code, collection of signatures to call a special meeting under this section is a purpose reasonably related to the interests of the members of the association. A member request to copy or inspect the membership list solely for that purpose may not be denied on the grounds that the purpose is not reasonably related to the member's interests as a member.

(c) The rule change may be reversed by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum), or if the declaration or bylaws require a greater proportion, by the affirmative vote or written ballot of the proportion required. In lieu of calling the meeting described in this section, the board may distribute a written ballot to every member of the association in conformity with the requirements of Section 7513 of the Corporations Code.

(d) Unless otherwise provided in the declaration or bylaws, for the purposes of this section, a member may cast one vote per separate interest owned.

(e) A meeting called under this section is governed by Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title 1 of, and Sections 7612 and 7613 of, the Corporations Code.

(f) A rule change reversed under this section may not be readopted for one year after the date of the meeting reversing the rule change. Nothing in this section precludes the board of directors from adopting a different rule on the same subject as the rule change that has been reversed.

(g) As soon as possible after the close of voting, but not more than 15 days after the close of voting, the board of directors shall provide notice of the results of a member vote held pursuant to this section to every association member. Delivery of notice under this subdivision is subject to Section 1350.7.

(h) This section does not apply to an emergency rule change made under subdivision (d) of Section 1357.130.

The President of the HOA stated that the rental agreement did not need to be voted on as it is a contract.. not rules.. I don't know if that really can be argued. or can it?

MaryA1 (Arizona)
Posts: 388

Posted:

Noelle,

Sounds like it falls into "I say "po-tay-tow", you say "po-tah-tow"!! However, did the board pass a rule stating the "Clubhouse Rental Contract" would be used for all clubhouse rentals, which, IMO, they should have done? If they did, then, IMO, the rental contract would a part of the rule and it should be voted on by the members. If they didn't, then there is no basis for using this rental contract.

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