By Donie Vanitzian
c)2001-2014 D.VANITZIAN. All rights reserved. The Associations and Common Interest Living articles and columns may not be reprinted or retransmitted in any form without the express written consent of the copyright holders. The authors take no position regarding any documents or accompaniments that may be enclosed with, attached to, or alongside said article reprints or distribution. Los Angeles Times, Real Estate Section, "Associations," March 23, 2014 titled Board has duty to ensure homeowners association notices are delivered by Donie Vanitzian, Special to The Times
QUESTION: Our association board allows the manager to control all the homeowners association notices that owners are supposed to get. The manager picks and chooses who will receive notice of meetings, elections and other important issues. Sometimes she puts these vital notices in a locked glass case, way at the other end of our huge complex, takes a picture of them as proof the notices were put up, then orders the security guards to remove those same notices from the case after the snapshot. As a result, owners do not receive proper notice of anything that goes on around here. How can owners get notices?
ANSWER: Posting a notice, then immediately removing it violates notice requirements and good judgment. The board, not management, and certainly not security personnel, manages the association. The board is vested with the duty of supervising management and ensuring that all notices reach their intended recipients, titleholders and residents. As a result, owners must address problems regarding delivery of notices with the board and ensure that the board is held accountable.
California's common interest development act addresses how "general delivery" or "general notice" should be delivered to residents and owners. Those methods include:
•By first-class mail, fax or electronically.
•By inclusion in a billing statement or newsletter.
•By posting the document in a prominent location that is accessible to all owners, if the location has been designated for the posting of general notices by the association in its annual policy statement (the drafting of which is covered in Civil Code section 5310).
•By inclusion in television programming, if the association broadcasts such programming.
More details about delivery methods can be found in Civil Code section 4045 and section 4040, at http://www.leginfo.ca.gov.
Even with all those potential delivery requirements, it is still possible for owners to miss vital notices.
Here, it appears the manager may have devised a method to circumvent the laws and as a result has seriously disenfranchised owners of their rights. If feasible, and in fairness, the board could devise an additional method of notice that consists of hand delivery to all owner-occupied property and mail to non-resident owners. This is why it is so important for all titleholders to inform boards of more than one address for both notice and delivery purposes.
To be effective, according to Civil Code section 5260, any of the following requests shall be delivered in writing to the association pursuant to Civil Code section 4035:
•A request to change the owner's information in the association membership list.
•A request to add or remove a second address for delivery of individual notices to the owner, pursuant to Civil Code section 4040(b).
•A request for individual delivery of general notices to the owner, pursuant to Civil Code section 4045(b), or a request to cancel a prior request for individual delivery of general notices.
•A request to opt out of the membership list pursuant to Civil Code section 5220, or a request to cancel a prior request to opt out of the membership list.
•A request to receive a full copy of a specified annual budget report or annual policy statement pursuant to Civil Code section 5320.
•A request to receive all reports in full, pursuant to Civil Code section 5320(b), or a request to cancel a prior request to receive all reports in full.
Reminder: Under Evidence Code section 11, the word "shall" means "mandatory."
The manager's fraudulent and deceptive methods of "delivery" should be brought to the owners' and board's attention in writing and at an open meeting, along with demands that the board take appropriate action. Titleholders must ensure they have provided the association with accurate information for delivery of notices, documents and invoices and have requested in writing to receive individual delivery of all notices — including those posted in a glass case or bulletin board.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.