Epsten, APC

Effective 1/1/2012, a CC&R provision which prohibits or restricts the installation or use of an electric vehicle charging station is void and unenforceable, although the association may impose “reasonable” restrictions (such as those which do not significantly increase the cost of the station or significant decrease its efficiency or specified performance.) If the station is to be placed on common area, including exclusive use common area, the owner must obtain the association’s permission to install it. The association may impose conditions on its approval, as set forth in Civ. Code §4745(f). An association is required to grant permission for an owner to install a charging station, for the owner’s sole use, on the common area, if and only if installation of the station in the owner’s designated parking space is impossible or unreasonably expensive. The association may impose conditions on the installation of the station as set forth in §4745(f).

The Corporations Code generally defines electronic transmissions as communications delivered by fax, email, electronic message boards or other means. Members may give consent to the board to transmit certain types of communications, notices or disclosures to members via electronic communication. Consult with your attorney for further information concerning consent and the types of electronic communications authorized under the law.

Associations have a vast array of documents, communications, correspondences and forms that must be retained. Many associations choose to retain these documents in electronic form to save space and cut down on expense. If the association has chosen to retain its documents in this manner, keep in mind that owners making a document request have the right to review the documents in hardcopy.

Emergency board meetings may be held under limited circumstances. An emergency meeting may be called by the president or by any two members of the board other than the president. It may be held only under circumstances that could not have been reasonably foreseen which require immediate attention and possible board action, and which make it impracticable to provide the notice which would otherwise be required by the Open Meeting Act. (Civ. Code §4923) An emergency meeting may be conducted via electronic transmission if all board members consent, in writing, to do so. Specific procedural requirements must be followed with respect to obtaining and maintaining a record of the required written consents as described in Civil Code section 4910.

Initially, we note there are tax and payroll reporting implications arising from an association’s decision to hire employees as opposed to independent contractors. These are issues that are best addressed by association’s CPA. Additionally, there are insurance and liability implications. If any persons are allegedly injured or property damaged by an employee of the association, there is a greater likelihood the association will be held liable for that injury or damage than if the damage or injury was caused by an independent contractor. Merely having an agreement entitled “Independent Contractor Agreement” is not sufficient to establish ones status as an independent contractor; the authorities will look to several factors in making this determination.

The federal and state statutes and cases that define the rights, duties and obligations of employers and employees to each other. See also Employees. Associations with employees should always have an Employer’s Liability Insurance policy to protect against possible liability arising from the employment relationship.

Association boards have the duty to enforce governing documents. To be enforceable, enforcement must comply with the due process procedures in the governing documents (Civ. Code §5855 and Corp. Code §7341). This includes, minimally, providing at least 10 days’ advance notice to an owner of a hearing to consider whether to impose discipline (governing documents may require a longer notice period). Associations can be held liable for failure to enforce the governing documents.

When obligations and restrictions imposed in deeds and certain other written agreements meet strict statutory requirements, they are said to “run with the land” and bind successors to the original parties. Other deeds and written agreements that do not meet those statutory requirements are nevertheless enforced as “equitable servitudes” under certain circumstances. The CC&Rs of common interest developments are routinely enforced as equitable servitudes, because the Davis-Stirling Common Interest Act provides that the covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable.

The term assigned by the Davis-Stirling Act to those portions of the common area reserved for the use of one or more, but less than all, owners within the community. (Civ. Code §4145) The Act states that unless the CC&Rs otherwise provide, any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusive to that separate interest. Ibid. Unless the governing documents otherwise provide, the homeowner is responsible for the maintenance of the exclusive use common area. (Civ. Code §4775(a))

Executive session meetings of the board (i.e., closed session meetings, not open to the membership) may only be held to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments. Any matter discussed in executive session must be generally noted in the minutes of the next open meeting. (Civ. Code §4935)