The ABCs of HOA committees, including executive vs. advisory committees and meeting and minute requirements.

Whether your community is large or small, the responsibilities of the board of directors are tremendous. From collections to maintenance, homeowner complaints, and architectural review, even boards of associations with professional management can find themselves overwhelmed. The formation of committees can be an effective way to lighten the board’s load, and engage the membership – so long as the board understands the legal limits on what committees can and can’t do, and how they operate.

Formation of Committees

In general, the board is responsible for appointing committee members, who serve at the pleasure of the board – meaning the board has the discretion to appoint or remove committee members. Sometimes the scope of a committee’s authority is outlined in the governing documents, such as with an architectural committee. However, in most cases, it will be necessary for the board to define the purpose of the committee, the scope of the committee’s authority, and the number of members, through a resolution, motion or committee charter.

Executive Committees and Advisory Committees

There are two main categories of committees, generally referred to as “Executive Committees” (sometimes referred to as “Committees of the Board”) and “Advisory Committees.”

Executive Committees are comprised solely of directors and can make decisions on behalf of the board, subject to certain limited exceptions (Corp.Code §7212(a)). Executive Committees can be particularly useful in situations that require confidentiality and/or decision-making between regular board meetings, such as monthly financial reviews; approval of large expenditures; and litigation updates with association counsel.

Advisory Committees include non-director members and do not have the authority of the board (Corp. Code §7212(b)). Therefore, we generally recommend that committees which include non-directors act in an advisory capacity only. These Advisory Committees can do research and investigation, and make recommendations, but should leave the ultimate decision-making to the Board. This makes sense for a variety of reasons, including that non-directors might not be covered by the directors and officers insurance policy, are not fiduciaries, and were not elected by the membership. Advisory Committees can be useful in situations that are labor-intensive (e.g., newsletter committees) or uncontroversial (e.g., social committees). However, if the CC&Rs require the formation of a committee that requires non-directors to make decisions (e.g., an architectural committee), then the Board must allow the committee to make such decisions.

Meetings & Minutes

If a majority of the board serves on the committee and is present at the committee meeting, then the committee meeting is a board meeting (Civil Code §4090) and must be treated as such, including for example, notice of the meeting, agenda, homeowners’ forum, and minutes. However, if a majority of the board does not serve on the committee, then the committee meetings can be very flexible and do not require these formalities, with one notable exception: any committee with decision-making power is required to take meeting minutes (Civil Code §5210(a)(2)).

The Buck Stops Here

Lastly, and perhaps most importantly, regardless of the type of committee, the Board is ultimately responsible for all committee decisions and actions (Corp. Code §7210). Boards cannot avoid responsibility by delegating tasks to committees, but they can use committees to reduce their workload and stress. Let us know if your association has questions about managing committees effectively.

Community association pools are considered “public pools” for purposes of the California Building Code’s pool signage requirements. “No Lifeguard,” capacity, and “No Diving” signs are among those required to be posted.

Pool rules, while not required, are strongly recommended. Adopting rules provides associations with a way to promote safety and proper conduct around the pool area. Examples of issues that can be addressed in pool rules include:

• Pool hours
• Reservation policies
• Supervision
• Alcohol restrictions
• Smoking and vaping restrictions
• Incontinence
• Hair coverings
• Running and horseplay
• Guest policies
• Music
• And more…

Pool rules are an area where boards must exercise caution. Despite being well-intentioned, pool rules often include language that may be considered discriminatory. Potential problem areas include, anything related to children, adult-only swim hours/lanes/pools, swim diapers, unsupervised teens, restrictions based on illnesses, animals, and more.

Your HGCT legal counsel can review or draft your pool rules to ensure the rules not only protect the residents’ safety but also protect the association from potential fair housing claims.

Contact us with questions or to discuss your association’s needs.

Pool Signage Requirements in Community Associations

It’s time to dive into pool signage! California considers community association pools to be “public pools” for the purpose of the California Building Code’s (“CBC”) pool signage requirements. As your community prepares for pool season, take a moment ensure your pool signs are up to date with current law. Unless specified otherwise, the following signs must be posted in a location visible to all pool users, with letters or numbers that are clearly legible and no less than 4 inches in height.

No Lifeguard

A sign that reads “NO LIFEGUARD ON DUTY” must be posted when there is no lifeguard service provided. In addition, effective January 1, 2020, the sign must also state in letters at least one (1) inch high: “Children should not use pool without a parent or adult guardian in attendance.”

ALERT

Make sure that your community pool does not have the following outdated sign:

“Children under the age of 14 shall not use pool without a parent or guardian in attendance.”

A U.S. District Court in California held that this prohibition discriminates against families with children. The CBC guidelines have been updated, eliminating the specific age reference and adopting less prohibitive language.

Ironically, this recent change in the law was intended to address potential discrimination against families with children. While this latest iteration of the law is less discriminatory than prior versions, the use of the word “children” is still problematic. In general, to steer clear of fair housing challenges, community associations should avoid use of the word children, and instead adopt behavior-focused restrictions. Nonetheless, the CBC is clear; associations must post the sign with the specific language used in the statute, including use of the word children.While such language is obligatory for pool signs, we urge community association boards to avoid using the word children in the pool rules or elsewhere in the governing documents.

Capacity Sign

A sign must indicate the maximum number of pool users permitted for each pool. If you aren’t sure, consult with licensed, insured pool experts to determine the legal maximum for your specific pool.

No Diving

Signs must be posted in conspicuous places and state, “NO DIVING” at pools with a maximum water depth of six (6) feet or less.

Artificial Respiration and CPR Sign

This sign must include an illustrated diagram with text at least ¼ inch high of artificial respiration and cardiopulmonary resuscitation procedures.

Emergency Sign

This sign must include the emergency phone number 911 not less than four (4) inches high, the number of the nearest emergency services, and the name and street address of the pool facility with numbers and text not less than one (1) inch high.

No Use After Dark

For pools constructed when lighting was not required, a sign must be posted at each pool entrance on the outside of the gate(s) stating, “NO USE OF POOL ALLOWED AFTER DARK.”

Keep Closed

A sign must be posted on the exterior side of gates and doors leading into the pool enclosure area stating, “KEEP GATE CLOSED” or “KEEP DOOR CLOSED.”

Diarrhea

A sign must be posted at the entrance of the pool in letters at least one (1) inch high that clearly states persons with currently active diarrhea and persons who have had diarrhea within the previous 14 days shall not enter the pool water.

Gaseous Oxidizer

If your pool uses automatic gaseous chlorine chemical feeders, contact your association’s legal counsel for additional signage requirements.

Spa Signs

CBC Section 3120B.7 requires the following:

A warning sign for spa pools shall be posted stating, “CAUTION” and shall include the following language in letters at least 1 inch high:

Elderly persons, pregnant women, infants and those with health conditions requiring medical care should consult with a physician before entering the spa.

Children should not use spa without adult supervision.

Hot water immersion while under the influence of alcohol, narcotics, drugs or medicines may lead to serious consequences and is not recommended.

Do not use alone.

Long exposure may result in hyperthermia, nausea, dizziness or fainting.

Community associations must also post capacity signs at their spas, as well as a sign by the spa emergency shut-off switch, stating, in letters at least one-inch high, “EMERGENCY SHUT-OFF SWITCH.”

Tip: Again, for spas, as with pools, make sure that your community does not contain outdated signs referencing children under the age of 14.

The CBC sign requirements are explicit and this is not an area where the board has discretion. By complying with signage requirements, community associations can create a safer environment for all who enjoy the common area amenities.

Does your association need pool rules? Learn more here. 

As we look back on 2023, we are struck by the number of associations that have faced unexpected expenses – skyrocketing insurance premiums, unanticipated repair costs resulting from record rainfalls, increased labor costs, and more. Financial strain has forced many boards to consider the prospect of levying a special assessment, many for the first time in the history of their communities.

Boards can levy special assessments up to 5% of the budgeted gross expenses for the current fiscal year without a vote of the membership; however, in general, special assessments greater than 5% of the budgeted gross expenses require membership approval. For those communities facing special assessment membership votes, here are some tips and strategies to keep in mind to maximize the chances of membership approval.

Comply with Election Laws.  Special assessment votes are subject to the same secret ballot procedure used in director elections (but with fewer pre-election requirements) and also require boards to appoint an inspector of elections. Boards should make sure that their election rules are current (circa 2020). Appoint the inspector of elections early to avoid scheduling problems down the road. Consult with legal counsel early in the process to review statutory timing requirements, approval requirements, and more.

Don’t Underbudget.  The one thing that members dislike more than being asked to approve a special assessment is being asked to approve multiple special assessments. Boards should plan carefully to avoid having to go back to the members to ask for more money because the first special assessment was insufficient. In the case of a construction project, we recommend that boards obtain bids for the required work, add any costs that might be excluded from the proposed contract price, including, for example, permit fees and construction manager fees.  In addition, be sure to add any applicable extra management fees, inspector of elections fees, mailing fees, and legal fees, and consider adding a contingency fee to cover unforeseen costs.

Installment Plans.  Depending on the amount of the special assessment, the urgency of the expenses, and applicable payment schedules, boards might wish to consult with legal counsel to see if the association can offer members the option of paying the special assessment in installments and how to offset the increased risk of nonpayment, in the event that members move away before payment is made in full. For very large expenses, some boards might consider seeking a bank loan, which is typically secured by a special assessment. The advantage of a bank loan is that it gives the association the money it needs right away, while allowing the members to pay the special assessment in installments over an extended period of time (the term of the loan).  Boards should check with legal counsel to see if the governing documents require membership approval of bank loans.

Hold a Town Hall Meeting.  While not required, town hall meetings can be a critical step on the road to special assessment approval. Note that a town hall meeting is neither a board meeting nor a membership meeting. No business is conducted at the town hall meeting.  Rather, the town hall meeting is a presentation by the board and the experts who can explain the need for the special assessment and an opportunity for the members to ask questions. Depending on the reason for the special assessment, the experts who present at the town hall meeting might include an architect, a banker, and an insurance professional. In addition, one of the directors or the community manager should be prepared to discuss the budget for calculating the special assessment. Ideally, the association’s legal counsel should also be present to address legal questions.

Role of Legal Counsel.  Special assessment votes are something that most communities only have to deal with once in a while. Moreover, they are controversial by nature and subject to numerous legal requirements.  Your association’s legal counsel can be an effective partner in helping the board and the management team strategize from start to finish for an effective special assessment vote and avoid the many pitfalls on the way, whether it is compliance with balloting requirements, election timelines, approval requirements, or understanding the risks associated with installment plans. Legal counsel can also be instrumental in reviewing and negotiating construction contracts and loan documents.

Lastly, remember, that the best way to avoid special assessments is to plan carefully for the fiscal year ahead.  For condominium associations that means planning now to comply with the statutory deadline of January 1, 2025 for the inspection of balconies and other exterior elevated elements.  Click here for more information on compliance with Civil Code Section 5551.