Emergency Authorization

LmT (California)
Posts: 237

Posted:

I have yet another dilemma.

Two our pools have been heated during the winter (it's 95F today). The heater went out on one of the heated pools but the other one is OK and is being used. We need to replace one heater and have an estimate of around $5K which will be paid out of the reserve account. We don't have an open meeting until three weeks from now.

We asked our manager how to handle authorizing the purchase and installation of the new heater and this was the response:

"You can vote for approval via email if two other Board members agree, and then ratify the approval at the next board meeting. This is considered an emergency authorization.
I have another property that does it all the time".

Is this good advice? We are in California and I still can't find anything on the D-S website to accurately address this type of situation which seems to crop up frequently for us.

ElleN (Idaho)
Posts: 1,334

Posted:

How many directors are on your board.

-- I agree this qualifies as an emergency.

-- I disagree with how the manager wants to proceed.

-- I especially profane his reasoning that, because another property does things his way, it's the right way.

-- From your other recent thread, I believe you know the right way. If there is any doubt about the right way, one need only read this from D-S.com: Unanimous Written Consent. Email may be used as a method of conducting an emergency meeting, provided all members of the board consent in writing to the meeting. The written consent must be filed with the minutes of the board meeting. (Civ. Code § 4910(b)(2).) Once the board agrees to hold the meeting via email, any votes on emergency items need not be unanimous. A simple majority is sufficient to approve an item of business. (LNSU #1 v. Alta Del Mar Coastal Collection Cmty. Ass'n.)

-- Perhaps the bigger problem is to get the other directors to believe you and not some not-so-educated manager?

LmT (California)
Posts: 237

Posted:

Quote:

Posted By ElleN on 02/25/2025 4:10 PM
How many directors are on your board.

-- I agree this qualifies as an emergency.

-- I disagree with how the manager wants to proceed.

-- I especially profane his reasoning that, because another property does things his way, it's the right way.

-- From your other recent thread, I believe you know the right way. If there is any doubt about the right way, one need only read this from D-S.com: Unanimous Written Consent. Email may be used as a method of conducting an emergency meeting, provided all members of the board consent in writing to the meeting. The written consent must be filed with the minutes of the board meeting. (Civ. Code § 4910(b)(2).) Once the board agrees to hold the meeting via email, any votes on emergency items need not be unanimous. A simple majority is sufficient to approve an item of business. (LNSU #1 v. Alta Del Mar Coastal Collection Cmty. Ass'n.)

-- Perhaps the bigger problem is to get the other directors to believe you and not some not-so-educated manager?

I agree on all of the points you make.

I will wait to see what happens in the next day or so and will not make a fuss about this other than to point out as you have done that this is not the way to handle the problem.

We are in the process of engaging new legal representation on retainer. This would be one of the unlimited six minute phone calls I would encourage making to our lawyer. For the moment I will just keep my own counsel.

KerryL1 (California)
Posts: 14,550

Posted:

D-S.com also defines "emergencies"; Due to slowness, I don't have time to look it up. One unheated pool when a heated other one is available does not fit the definition of "emergency" in CA HOAs..

Simply call a special meeting of the Board-- requires 4-days notice to owners. You simply need a quorum of directors to vote approval.

KerryL1 (California)
Posts: 14,550

Posted:

Oh, I forgot. are you president, LmT?

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/25/2025 7:08 PM
Oh, I forgot. are you president, LmT?

No, I’m not President.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

This heater replacement probably can wait three weeks as to conform to normal HOA business meeting protocol. It's inconvenient but best practice, especially if calling an "emergency meeting" requires 4-days' notice and other public posting requirements under state law.

But, I'm also curious why the HOA board wouldn't allow this as a maintenance repair and allow it to proceed upon recognition of the heater's failure. A heated pool is a standing amenity that's actively used, so I'm not understanding the controversy of debating the issue. No one's going to sue you for repairing the pool to its current state as it's an existing operation.

Like a ruptured pipe, you wouldn't wait four days to call a meeting to debate repairing the leak......state laws are very unique and many HOAs insist on meeting over even routine maintenance and repair.

DeanJ
Posts: 1,786

Posted:

I also wouldn’t consider a pool heater out of service as an emergency, but my HOA is permitted in the declaration and by Ohio law to approve any action via email without a formal meeting.

In one of the HOA pro democracy states, I would wait until the next full meeting to approve. That way everyone desiring to comment has full opportunity to speak at a meeting.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By DeanJ on 02/26/2025 7:54 AM
I also wouldn’t consider a pool heater out of service as an emergency, but my HOA is permitted in the declaration and by Ohio law to approve any action via email without a formal meeting.

In one of the HOA pro democracy states, I would wait until the next full meeting to approve. That way everyone desiring to comment has full opportunity to speak at a meeting.

Thank you for your input. That seems to be the way we are thinking right now.

KerryL1 (California)
Posts: 14,550

Posted:

In Calif., HOAs this is not an "emergency." In CA, unlike some other states, email approval by a Board only are permitted in cases of an emergency.

"www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings Emergency Defined"

 “An '‘emergency’ is defined as "circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice to the membership.” (Civ. Code § 4923; Civ. Code § 4930(d)(1).)

There's nothing about LmT's situation that needs "immediate attention."

So, IN CALIF, two choices: Call a special mtg. of the Board: Requires 4- days posted notice in case owners want to attend &. comment.

2. Wait till the next regular open Board meeting..

I. sense there's something else going on here, LmT. Care to share?

KerryL1 (California)
Posts: 14,550

Posted:

In Calif., HOAs this is not an "emergency." In CA, unlike some other states, email approval by a Board only are permitted in cases of an emergency.

"www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings Emergency Defined"

 “An '‘emergency’ is defined as "circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice to the membership.” (Civ. Code § 4923; Civ. Code § 4930(d)(1).)

There's nothing about LmT's situation that needs "immediate attention."

So, IN CALIF, two choices: Call a special mtg. of the Board: Requires 4- days posted notice in case owners want to attend &. comment.

2. Wait till the next regular open Board meeting..

I. sense there's something else going on here, LmT. Care to share?

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By LmT on 02/26/2025 2:44 PM

Posted By DeanJ on 02/26/2025 7:54 AM
I also wouldn’t consider a pool heater out of service as an emergency, but my HOA is permitted in the declaration and by Ohio law to approve any action via email without a formal meeting.

In one of the HOA pro democracy states, I would wait until the next full meeting to approve. That way everyone desiring to comment has full opportunity to speak at a meeting.

Thank you for your input. That seems to be the way we are thinking right now.

Yea, my comment would why you didn’t get the thing fixed sooner.

ElleN (Idaho)
Posts: 1,334

Posted:

Whether this is an emergency is entirely subjective. For example, the lead time for many parts is so extensive that this may very well qualify as an emergency.

I also think this point by KellyM3 is good:
... I'm also curious why the HOA board wouldn't allow this as a maintenance repair and allow it to proceed upon recognition of the heater's failure. A heated pool is a standing amenity that's actively used, so I'm not understanding the controversy of debating the issue. No one's going to sue you for repairing the pool to its current state as it's an existing operation.

Lastly I am in favor of making the board's life as easy as possible to the extent the law allows. There is plenty of wiggle room here for the board to just 'get 'er done' via a properly done vote by email et cetera.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Another option would be to call a special board meeting or simply wait.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By ElleN on 02/27/2025 6:59 AM
Whether this is an emergency is entirely subjective. For example, the lead time for many parts is so extensive that this may very well qualify as an emergency.

I also think this point by KellyM3 is good:
... I'm also curious why the HOA board wouldn't allow this as a maintenance repair and allow it to proceed upon recognition of the heater's failure. A heated pool is a standing amenity that's actively used, so I'm not understanding the controversy of debating the issue. No one's going to sue you for repairing the pool to its current state as it's an existing operation.

Lastly I am in favor of making the board's life as easy as possible to the extent the law allows. There is plenty of wiggle room here for the board to just 'get 'er done' via a properly done vote by email et cetera.

Go to your local grocery, stop 10 shoppers and tell the, your pool heater quit working and ask if they would consider it an emergency.

KerryL1 (California)
Posts: 14,550

Posted:

A broken heater in one pool when another heated pool IS available AND is being used, is not an emergency in Calif. for 2 reasons:

1. It does not require "immediate attention." Even if no other heated pool were available, it still does not require "immediate attention" for any purpose I can think of. But resident. whines "My doctor says I. must soak in a heated pool every day-see it's wringing." Board

2. As a non-emergency, a board in CA may NOT approve replacement via email., which is reserved only for emergencies.

To Kelly's point, it looks as though the PM, for instance, isn't authorized to make this kind of expenditure.

So, yes, Tim provides clear, succinct accurate advice---for California.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By DeanJ on 02/26/2025 10:04 PM

Posted By LmT on 02/26/2025 2:44 PM

Posted By DeanJ on 02/26/2025 7:54 AM
I also wouldn’t consider a pool heater out of service as an emergency, but my HOA is permitted in the declaration and by Ohio law to approve any action via email without a formal meeting.

In one of the HOA pro democracy states, I would wait until the next full meeting to approve. That way everyone desiring to comment has full opportunity to speak at a meeting.

Thank you for your input. That seems to be the way we are thinking right now.

Yea, my comment would why you didn’t get the thing fixed sooner.

Thank you again. We didn’t fix it because it wasn’t broken. It would not ignite when the technician tried and he deemed it unrepairable. Now it needs to be replaced.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/27/2025 12:04 PM
A broken heater in one pool when another heated pool IS available AND is being used, is not an emergency in Calif. for 2 reasons:

1. It does not require "immediate attention." Even if no other heated pool were available, it still does not require "immediate attention" for any purpose I can think of. But resident. whines "My doctor says I. must soak in a heated pool every day-see it's wringing." Board

2. As a non-emergency, a board in CA may NOT approve replacement via email., which is reserved only for emergencies.

To Kelly's point, it looks as though the PM, for instance, isn't authorized to make this kind of expenditure.

So, yes, Tim provides clear, succinct accurate advice---for California.

I’m just now getting around to reading the replies to my question which was whether our manager’s advice that we can vote by email and ratify at the next open meeting as an ‘emergency authorization’.

Whether fixing the broken heater meets the definition of an emergency isn’t the question.

The question is, Whether the advice we are being given by our manager that there is such a provision for an ‘emergency authorization’ by email.

Clearly from the response there is not.

The dilemma I have is that our board of directors (as has happened in the past) will believe that any action may be taken between meetings by email agreement and email vote.

We are in the process of retaining new legal representation.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By DeanJ on 02/27/2025 10:40 AM

Posted By ElleN on 02/27/2025 6:59 AM
Whether this is an emergency is entirely subjective. For example, the lead time for many parts is so extensive that this may very well qualify as an emergency.

I also think this point by KellyM3 is good:
... I'm also curious why the HOA board wouldn't allow this as a maintenance repair and allow it to proceed upon recognition of the heater's failure. A heated pool is a standing amenity that's actively used, so I'm not understanding the controversy of debating the issue. No one's going to sue you for repairing the pool to its current state as it's an existing operation.

Lastly I am in favor of making the board's life as easy as possible to the extent the law allows. There is plenty of wiggle room here for the board to just 'get 'er done' via a properly done vote by email et cetera.

Go to your local grocery, stop 10 shoppers and tell the, your pool heater quit working and ask if they would consider it an emergency.

My question was not whether the broken heater meets the definition of an emergency. The legality of the advice we are receiving from our manager is the question.

LmT (California)
Posts: 237

Posted:

Quote:

Posted By KerryL1 on 02/26/2025 7:45 PM
In Calif., HOAs this is not an "emergency." In CA, unlike some other states, email approval by a Board only are permitted in cases of an emergency.

"www.davis-stirling.com/HOME/E/Emergency-HOA-Board-Meetings Emergency Defined"

 “An '‘emergency’ is defined as "circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice to the membership.” (Civ. Code § 4923; Civ. Code § 4930(d)(1).)

There's nothing about LmT's situation that needs "immediate attention."

So, IN CALIF, two choices: Call a special mtg. of the Board: Requires 4- days posted notice in case owners want to attend &. comment.

2. Wait till the next regular open Board meeting..

I. sense there's something else going on here, LmT. Care to share?

I guess you could say there is something else going on. We have a board who are very inexperienced but willing to step up and volunteer for duty. They (and I) should be able to turn to our management for help and advice. Lately that has not been the case. We are all weary of doing the legwork ourselves.

I’m the one willing to do the research when some problems arise but the answers are not always easy to find or necessarily clear. That’s why I sometimes come to this forum. I’m always extremely grateful for the advice I receive.

We now are in the process of retaining new legal counsel which we desperately need.

ElleN (Idaho)
Posts: 1,334

Posted:

Point of information: I just joined a certain network of private gym/pool clubs. I showed up at three of their clubs on Monday, seeking a pool heated to the usual fairly high temperature. One pool was non-functioning, due to parts being on order. A second pool was at a very low temperature, due to the heater having been repaired three days before and the pool still nowhere near the normal temperature. No one was swimming in the latter pool. The third pool was a bit cooler than usual (for this club) but swimmable, with people using it. Staff at the latter explained the heater had recently been repaired and this pool was also still coming up to temperature.

KerryL1 (California)
Posts: 14,550

Posted:

To your above, LmT: No. Your mgr. gave you the wrong advice. The reason is the Boar may nit vote on this via email b/c it is not an emergency even though your mgr. describes it as such.

When. we changed legal counsel, a few years our Board interviewed 4 firms and they all offered unlimited 15 minutes phone calls. This is a wonderful service, which would have gotten you an answer to your above question quickly at no cost. Make sure that the contract only permits one director as liaison to the attorney. Well, the firm will probably require that.

Included in our retainer also is attendance at the annual meeting + one other board meeting.