Epsten, APC

Privileged information is data, communications, documents, etc., that are protected from disclosure by law. Communications from your attorney are generally privileged and in litigation, opposing parties can very rarely obtain this information. Topics and materials discussed in executive sessions are also privileged, although to a lesser extent. Keep in mind, privileged information is only protected if it has not been divulged to a non-privileged party.

The law is unclear whether a check that states “payment in full” is considered to be binding. Prior to 2002, acceptance of a check with the words “payment in full” did not constitute an accord and satisfaction under California Civil Code section 1526, if the association protested by striking out or otherwise deleting that notation or accepted the check inadvertently or without knowledge of the notation. However, the California appellate case decided in 2002 Woolridge v. J.F.L. Electric, Inc., 96 Cal.App.4th Supp. 52 (2002) (“”Woolridge””), suggests that if you cash such a check, you will not be able to pursue the owner for any remaining balance. Specifically, Woolridge held that the Uniform Commercial Code Section 3311, which says “payment in full” is binding, applies to negotiable instruments (e.g., checks) and overrides the California Civil Code. Consult with your attorney on a case-by-case basis to determine whether cashing the check is worth the risk involved.

Civil Code section 4525 requires an owner of a separate interest to provide specified documents to a prospective purchaser of that interest. These are often termed “escrow disclosures.” Upon written request, a community association must provide copies of specified documents to the owner of the separate or other owner-authorized recipient within 10 days. (Civil Code §4530) The association’s duty to provide lawfully requested documents pursuant to this section is to the owner of the separate interest, and not to the prospective purchaser.

A parcel map is a division of land into four or fewer parcels for the purpose of selling, leasing or financing those parcels. It is different from a subdivision map, which is required for a division of land into five or more lots for the purpose of selling, leasing or financing those lots. Both a parcel map and a subdivision map are governed by the Subdivision Map Act, which, in addition to setting forth a number of requirements necessary to obtain a parcel map or a subdivision map, lists certain exceptions as well (such as leases for agricultural, mineral, oil or gas purposes or leases or easements for certain solar or wind-powered electrical generation facilities).

Civil Code section 5130 provides that a proxy is a written authorization signed by a member or the authorized representative of the member giving another member or members the power to vote on behalf of that member. In contrast, Corporations Code section 5069 does not require that a proxy must be given to a member; it could be given to anyone. The governing documents of some associations may prohibit the use of proxies, but proxies have been used significantly less since the secret ballot, double envelope system (Civ. Code §5100 et seq.) has been enacted to mail ballots to all members.

Associations generally have the power to regulate parking on their private streets and other common areas. California Vehicle Code section 22658 authorizes associations to tow vehicles parked illegally within the common area, subject to certain restrictions and procedural requirements. Occasionally, the governing documents will grant an association the power to regulate parking on public streets. In such instances, the ability of the association to exercise this power is limited.

Corporations Code section 5070 defines proxy holder as the person or persons to whom a proxy is given. The only mention of proxy holder in the Davis-Stirling Act is in Civil Code section 5130 that specifies the way in which a proxy must be prepared on two pages, one of which can be detached and given to the proxy holder with instructions for how to vote.

Civil Code section 5000(a) requires meetings of an association to be conducted in accordance with a recognized system of parliamentary procedure or other parliamentary procedures the association may adopt. There is no similar requirement for conducting board meetings, but it is probably a good idea. It is also advisable to adopt a system of parliamentary procedure that covers the basics but doesn’t require a professional parliamentarian to understand it. Also see Robert’s Rules of Order.

A Public Report (a.k.a. White Report) is a permit issued to a subdivider by the Bureau of Real Estate pursuant to the Subdivided Lands Law and it is required in connection with a subdivider’s sale of a lot or unit in a subdivision to the public. For the purposes of a Public Report, a subdivider may be a developer, a builder or any other person or entity who acquires five (5) or more lots or units in a subdivision with the intention of selling one or more of those lots or units to the public. A Public Report will contain disclosures for review by a prospective purchaser of a lot or unit in that subdivision including the subdivision’s type, assessments, amenities and whether there are any agreements between the subdivider and the association concerning maintenance or subsidies by the subdivider. A Public Report is valid for five (5) years from the date of its issuance.

Partition is a legal procedure for dividing up property that is jointly owned, such as a common area, so that it can be separately owned or sold. As a general rule condominium common area is not to be partitioned unless there are exceptional circumstances as outlined in Civil Code section 4610, including destruction of the property and the failure to rebuild substantially within three years.