Epsten, APC

See Satellite Dishes

Board members should generally not abstain except where they have a conflict of interest. Corporations Code section 7231 calls for directors “to act in the best interest of the corporation…,” not to abstain because they don’t know what to do or to avoid offending one side or another. The Robert’s Rules admonition to abstain except to make or break a tie applies to larger assemblies in which the president’s vote may influence the assembly’s votes, not to a small board or committee. See Robert’s Rules, Newly Revised, 11th Edition, §4, p. 50, Lines 18-23. Typically, presidents and other officers (secretaries, treasurers, etc.) don’t have a vote; board members do, and board members are supposed to act.

SLAPP stands for “Strategic Lawsuit Against Public Participation.” A SLAPP lawsuit is one that is filed against a person or organization to chill their right under the US Constitution to Free Speech and/or Freedom of Petition. An anti-SLAPP Motion is a motion brought under Civil Code §425.16 to dismiss a SLAPP lawsuit.

Common interest developments in California are, at their roots, nonprofit corporations. Many associations may have revenue in the hundreds of thousands and assets in the millions. In order to ensure owners are protected, associations must provide thorough, transparent accounting reports utilizing the accrual method of accounting.

A non-judicial procedure for resolving conflicts. Arbitrations can be binding or non-binding.  Parties to a dispute may mutually agree to submit the case to arbitration rather than a trial. Many contracts and CC&Rs contain mandatory arbitration clauses that require the parties to submit to arbitration. The arbitrator is a neutral third party, typically a retired judge or an attorney, who conducts the arbitration, hears the evidence and makes a decision, in the place of a judge and/or jury. Arbitrations can be less complicated and costly than a trial, but there is no appeal from the decision of an arbitrator unless the agreement specifies the right to an appeal. An arbitration award is entered as a judgment and is enforceable by the courts.

This method of accounting recognizes economic transactions when they occur, regardless of when cash actually changes hands. The goal of this system is the matching principle, wherein revenues are matched to expenses at the time the transaction occurs, as opposed to when the cash receipt or disbursement actually occurs. While slightly more complicated than cash accounting, this method gives a more accurate picture of an association’s fiscal status.

California law provides minimum steps for architectural review procedures. (Civil Code §4765) If an association’s governing documents require association approval before a physical change is made to a separate interest or the common area, the association must provide a fair, reasonable, and expeditious procedure for making its decision. See “Architectural Enforcement Procedures for Community Associations.”

Member meetings may be adjourned to end the meeting or to postpone the meeting if quorum is not obtained. Corporations Code section 7511(d) mandates that no meeting may be adjourned for more than 45 days. The quorum at an adjourned member meeting may be reduced to a lower amount, if the bylaws so provide.

Articles of Incorporation (“Articles”) are the formation document for incorporated corporations and are a part of an association’s governing documents. Articles are filed with the Secretary of State. Articles spell out the name, basic corporate purposes and powers, and character of the corporation (i.e., common interest developments are nonprofit mutual benefit corporations). Articles can be amended in accordance with the requirements in the Articles and the Corporations Code.

see Alternative Dispute Resolution