Washer and Dryer Installed in Common Area

Can a Board member legally install a washer and dryer where the water heater was previously located? This water heater is common area that supplies hot water to other units. He made the water heater closet which was owned by the Association his washer and dryer room that he could access inside his dining area. Moreover, installed a washer and dryer that is not allowed per our rules and regulations.

He then relocated the water heater to his patio that he has exclusive use to and built a closet around it. If I read the Davis Stirling Act correctly, he cannot alter any areas of common area unless he gets approval of the majority of the membership.

They won’t let me have a washer and dryer in my 1 bedroom, but approved this for a Board member several years ago. Oh, just to make note this board member still serves on the Board. Go figure….

https://www.davis-stirling.com/HOME/G/Granting-Exclusive-Use

Here’s some legal jargon that I don’t understand fully.

Exceptions to Membership Approval. There are limited exceptions to the above requirement. Unless the governing documents provide otherwise, the board may grant exclusive to a portion of the common area without membership approval for reasons described in Civil Code § 4600(b).

To accommodate a disability.

To assign a parking space, storage unit, or other amenity, that is designated in the declaration for assignment, but is not assigned by the declaration to a specific separate interest.

Sounds corrupt ask then threaten legal action

In order for an owner to granted exclusive right to common area, a majority of owners through secret balloting must approve.

The reason a majority of HOA's in California would cite Civil Code versus their own governing docs is they are old, very old. For instance, if Bylaws haven't been updated since 2012 and they are self-managed, they think that Action Without a Meeting, except in an emergency, still applies. It doesn't. Another for instance, CCRs not amended after 2014, state that a majority of members must approve a special assessment, when the new law lowered the requirement to a majority of quorum, and quorum being 20%, thereby cutting the requirement in half.

AND, if there is a conflict, what takes precedence? Thought so

Edward

How old are your governing docs?

Hi Max, they are very old. 1979 and the board had an updated rules and regulations book that they updated a number of years ago. This is where they will use the grandfather clause.

The Board made up these Rules and Regulations below.

Architectural Changes
While condominium living provides shared benefits that many single-structure residents cannot afford, community living requires uniformity and consistency to maintain property values. If considering an architectural variance, please comply with the following procedures and guidelines. The Board of Directors prior to installation must approve all exterior and/or interior alterations or improvements. Failure to comply may be cause for FINE and removal and/or replacement at the homeowner’s expense.

General Procedure for Requesting an Architectural Change:

Contact the Management Company and request an ARCHITECTURAL VARIANCE REQUEST APPLICATION.

Complete the application. All applications must be accompanied by a letter of request, including the homeowner’s name, address, and telephone number. Additionally, the name, address, phone number, workers compensation, general liability coverage and license number of the contractor must be included. Be sure to include a detailed description of the improvement and/or alteration and the following:
Dimensions and materials to be used;
Building plans;
Exterior elevations, surface and sections, structural designs and exterior details;
General exterior color schemes.

Submit the application and supporting materials to Board via the Management Company. Each owner and/or his authorized agent who submits to the Board plans for approval, agrees, by such submissions, that no action or suit of any kind to recover any damages resulting from approval or failure to approve, will be commenced against the Association, Board Members, Management Company or any designated representative thereof.

Obtain APPROVAL or DENIAL from the Board of Directors.

If APPROVED, a City of Orange building permit is required for most modifications. Approval by the Board does not constitute approval by the City of Orange, nor does approval by the City of Orange constitute approval by the Board.

Begin construction according to your submitted plans. All approved structural changes must be made only by a licensed and insured California Contractor. Homeowner assumes all liability and holds harmless the Association for any Personal Injury or Death resulting from negligence or faulty construction.

Upon completion submit the FINAL INSPECTION report to the Board. Failure to provide notification of FINAL INSPECTION from the City of Orange within 30 days of completion will result in a $100.00 fine assessment per day until such notification is received by the LVMHOA.

Homeowners are responsible for maintaining all approved alterations or improvements. This includes painting, termite & pest control, damage to the original structure, removal, restoration, etc. Failure to maintain approved alterations or improvements may result in their removal and restoration to original condition at homeowner’s expense.

Unauthorized common area or interior maintenance contracted by homeowners or residents will not be paid for by the Association but will be billed directly to the homeowner.

Sorry Kerry,

State statue take precedence:

Civil Code § 4600. Grant of Exclusive Use.

(a) Unless the governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board may grant exclusive use of any portion of the common area to a member.

The OP's CC&Rs are not about granting exclusive use, Max. They are about making alterations, modifications, etc. They're basically typical ARC guidelines. Edward has not said the board granted the director "exclusive use" of the water heater common area room.

Edward, please understand that I'm entirely sympathetic to your dilemma. I hope you & others can somehow prevail in the upcoming election though it does not appear to be legal.

Along with my other questions to help me better understand your situation, how many directors are there? How many seats are up for election? What size is your HOA?

Hi Kerry,

5 directors that have been running nearly 100 years combined. We have 10 members running including the current incumbents. Just over 200 units in the HOA

If this board is corrupt as you say, you already know the next steps - go out and strongly encourage EVERYONE to participate in this election. In fact, I'd be suggesting they attend the meeting and cast votes in person because too many crazy things happen with proxies. This is one time people have to make the time to participate - otherwise this foolishness will continue and you'll be posting about something else the board did.

Much like the current voter suppression laws being proposed (and unfortunately passed) everywhere, but that's when you have to buckle down and go around it, over it, or through it to get to where you want to go. That doesn't mean it'll be easy - people who want to hang on to power will do everything possible. Five people can't hold onto power unless they get help - in your case, it would appear the property manager's working with them because he or she wants to hang on to the account (remember the manager works at the board's direction).

However, five people can't dominate the remaining 195 owners (I assume your community is one vote per unit) unless the HOMEOWNERS allow it. You'd be surprised at how so many people are clueless as to how their communities are really run - and frankly, a lot of people like it that way (as long as my fees don't go up and I don't get a violation letter, I don't give a fast you-know-what what the board does).

If you're certain the election will be a complete sham, you don't have to wait for it - time to call a special meeting. Check your documents to see what's required, gather together like-minded neighbors (because there's strength in numbers) and perhaps throw some money in the pot to consult an attorney about all of this, so you can come up with a specific plan. It may very well end with a lawsuit or threat of one, but usually, it's best to get the homeowners together to throw the bums out - more long lasting and a lot cheaper.

You have a number of issues that need to be addresses, so start by considering what's bugging you the most, work on that, and then you can focus on everything else. If the annual meeting is coming up, focus on getthg the homeowners to attend in person (you already see the proxies might be misused or not counted at all). It's one thing to blow off two or three people - let's see if they're ballsy enough to do it in from of 50 - 100. Good luck!

Based on the Edward's info, the director did not move the water heater to his exclusive use common area, Max, he moved it into his dining room, i.e., his separate interest. He violated their CC&Rs Section 3 by altering & modifying his separate use dining room to accept the water heater's need to be vented & plumbed.

He also violated CC&R Section 3 above by installing his personal washer & dryer IN the common area water heater room. He altered and modified that common area. Edward says nothing about the granting of the common area room as exclusive use common area to the director.

Edward says there might have been board permission to do this. But, Edward, have you seen such a document???

Edward, please answer these questions:

Have all owners received their secret ballots and double envelopes by now for the Aug. 1 election?

For owners who mail them in, do they send them to the inspectors of election company? You do know these mail-in ballots count towards quorum, right?

If ballots are mailed to the election company's address, campaign like crazy to get Owners to mail in ballots. Or to give YOU & your supporters their proxys. I think you can trust the inspectors since whoever wins--the new board-- will probably hire them. Btw, the inspectors have no verbal role in the annual meeting except to do their job and announce the results of the election. Owners do not get to question them.

Per Davis-Stirling, the counting of ballots must be in a place where owners can observe it if they wish. Your election company is violating statute if their inspectors do not insist that owners be able to observe the tabulations. Owners may not speak with them while the ballots are being tabulated.

I'm concerned that Edward did not know his HOA has the required Election Rules. Per Davis-stirling, they must be easily available for Owners to read. It's crucial that you read them, Edward.

Finally how many openings are there on the board of five?

Edward

Do you know if the owner received permission from the BOD to make those alterations? If not, concentrate on this.

Hello Max,

Yes, unethical and misconduct with the use of proxies and a vote that was not provided to all members of the Association.
This discussion was about a washer and dryer installation installed by a board member in a common area owned by the Association, but the past annual meetings are haunting me and going back to older posts. Haha

So if you all can explain this to me that would be great. We can go back and forth citing bylaws and the Davis Stirling Act but when it all comes down to it, was it a fair and reasonable in the eyes of the HOA Gods and court?

Per Davis Stirling:

Distribution of Proxies. Any form of proxy distributed to 10 or more members of a corporation with 100 or more members must afford an opportunity on the proxy to specify a choice between approval and disapproval of each matter to be acted upon at the meeting for which the proxy is solicited. (Corp. Code § 7514(a).)

Per HOA Leader in a 2013 post:

https://www.hoaleader.com/public/No-Quorum-for-Meeting-to-Elect-a-Board-Give-Up-And-Can-the-Prior-Board-Carry-On.cfm

An HOAleader.com reader asks, "The CC&Rs say 51% for a quorum. If no quorum, quorum requirements drop to 25% for the adjourned annual meeting. My question is if a first adjourned meeting has to be called because the 25% quorum requirements were not met, and the second adjourned meeting also fails to meet the 25% quorum, what then? Does the sitting board just continue into the next term? When does the board declare failure to meet quorum requirements and end the torture?"

Here we explain whether a board has to keep torturing itself to get a quorum. We also discuss what powers board members have when their terms have expired but they can't get a quorum to elect new members.

Board Can't Give Up

Our experts are of two opinions on our reader's primary question. If the board can't get a quorum for an annual meeting and, therefore, can't have an election for new HOA board members, can the board simply give up and go on about its business with the existing board members?

"If a board is holding an election without a quorum, it's an invalid election, and then any action the board takes is subject to challenge," says David W. Kaman, a Columbus, Ohio, lawyer who specializes in advising community associations at Kaman & Cusimano LLC, which has offices in Columbus and Cleveland.

"In most of the documents I read, it says the board is elected until their successors are elected," explains Kaman. "So assume we're supposed to have our annual meeting on March 15, and we're required to have a majority of our 100 owners present. If we get only a third of the members to attend and adjourn the meeting until the end of April, my belief is the current board remains in power until its successors are elected. Any action they take until that scheduled April meeting isn't subject to challenge.

"However, if the board doesn't try again for a meeting and election within 30–45 days, I think now they're trying to perpetuate themselves, and that's a problem," adds Kaman. "Boards have to keep trying to get a quorum. As long as they do that, they have all the power of the board. It's when they stop trying that they run into trouble."

Post by Kelly Richardson. A well known HOA attorney for representing HOA’s and his posts in the papers

Another post by Davis Stirling

https://www.davis-stirling.com/HOME/H/HOA-Election-Proxies:

No Prior Notice? How can the other sixty members whose ballots established quorum vote on the color change since they were not present to hear the motion? I don't believe the matter can be raised at the meeting without prior notice to the membership:
Whenever members are required or permitted to take any action at a meeting, a written notice of the meeting shall be given...to each member... and (1) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted, or (2) in the case of the regular meeting, those matters which the board, at the time the notice is given, intends to present for action by the members, but, except as provided in subdivision (b) of Section 7512, any proper matter may be presented at the meeting for the action. (Corp. Code §7511(a).)
Moreover, I don't believe approval is a majority of nine (those physically present) but rather a majority of those present in person and by ballot, i.e., a majority of sixty-nine members (60 by ballot and 9 in person). Assuming that approval can be accomplished by those physically present at the meeting, allowing five members to change the color scheme of the entire development would create an uproar. Members would be properly outraged since there was no prior notice of the vote.

(1) From Max

1. It doesn’t matter where the director relocated the common area water heater from a common area room, if Edward describes this correctly. The director opened up a wall, and further physically modified both areas by installing, venting & plumbing the common area water heater, and adding a drain line, for a washer & dryer in the common area closet, which clearly violates Edward’s CC&Rs Sect. 3. The question is what can Edward do about these violations? (Unless the director got written approval, which Edward can’t seem to produce)

2. As I wrote, owners must be able to witness the tabulations. From Davis-stirling.com: “Membership Meetings & Elections….The meeting at which ballots are to be counted and tabulated must be conducted by video conference; and (2) The camera must be placed in a location such that members can witness the inspector of elections counting and tabulating the votes. (Civ. Code § 5450(d))"

3. The question is why hasn’t Edward referred to the Election Rules? He thought there weren’t any.

4. Agree. For Edward’s info: No proxy forms need to be mailed with ballots.

To Edward: How many seats are available to be filled? Does the HOA attorney participate at the annual meeting? As a members meeting, members (Owners) are the ones who make motions, etc. the PM has no authority.

Edward MUST work with others to campaign door to door to get owners to mail in their secret ballots. The Davis-stirling Act now allows flyers about Assn. business under doors even if your Rules or CC&Rs forbid it.

Edward's further questions about proxies & and adjournment are beyond my experience, but I'm sure Max can help.

Hello John,

Laws appear to more stricter in CA than OH IMO.

Then answer this per Davis Stirling:

How can 17 members decide not to adjourn the meeting to another date/time making a decision for 212 members who did not have that same right to vote on this matter during an annual meeting?

Regardless if he got BOD approval it’s common area owned by the Association not by the Board IMO. The bylaws and the Davis Stirling Act are pretty clear that he can’t just take something away owned by the Association and make it his own personal use for a washer and dryer room. This is where legal counsel would get involved. Since we are not attorney’s, I’m just seeing how others in this forum would respond.

Hello Max all viewers,

Last question on annual meetings/elections: What input can you offer to this civil code?

Civil Code § 5103. Election by Acclamation; Term Limits.

Notwithstanding the secret balloting requirement in Section 5100, or any contrary provision in the governing documents, when, as of the deadline for submitting nominations provided for in subdivision (a) of Section 5115, the number of qualified candidates is not more than the number of vacancies to be elected, as determined by the inspector or inspectors of the elections, the association may, but is not required to, consider the qualified candidates elected by acclamation if all of the following conditions have been met:

(a) The association has held a regular election for the directors in the last three years. The three-year time period shall be calculated from the date ballots were due in the last full election to the start of voting for the proposed election.

https://hoalaw.tinnellylaw.com/amp/ab-502-signed-board-elections-acclamation-california-hoas/

You really are a piece of work!

I have no issue with Election by Acclamation. I will tell you most HOA's will not follow the guidelines set for in §5103.Too much work, especially for those HOA's that are self-managed. There are almost 60,000 HOA's in California and conservatively 30,000 are self managed. We started a new company and looking to tap into that market. I done my research on the self managed HOA's and Edward, your issues with your HOA pale in comparison.

Say, Edward, I keep nagging about Election Rules. Have you read yours yet? Did your HOA follow the below Law?

Civ. 5105 (g) "(B) A copy of the election operating rules. Delivery of the election operating rules may be accomplished by either of the following methods:

(i) Posting the election operating rules to an internet website and including the corresponding internet website address on the ballot together with the phrase, in at least 12-point font: “The rules governing this election may be found here:”

(ii) Individual delivery."