©¿©¬ Patrick's HOA News
2005-02-07 01:27:25 UTC
Date: February 6, 2005, Los Angeles Times Real Estate section
Column: ASSOCIATIONS
By: By Stephen Glassman and Donie Vanitzian, Special to The Times
Title: FOLLOW THE LAW, NOT 'INDUSTRY STANDARDS'
QUESTION: Our owners and board try very hard to be fair and follow the
law, but it doesn't sit well with one of the self-appointed pooh-bahs.
He is an attorney, and without prompting or request from the board, he
sends out cleverly parsed opinion papers and lectures homeowners by
rehashing his reasons why the letter of the law is not accurate. Then he
proceeds to convince us that only his interpretation is right. All his
rhetoric carries the same verbose excuse why the board should not follow
the law exactly, and that's because he says it's "contrary to common
understanding and practice in the industry." He is confusing us, so we
want to know which is right: common understanding and practice in the
industry or the law?
ANSWER: Unless there is a specific legal exemption, laws apply to
everyone, including homeowner associations and boards, and the laws must
be obeyed.
In each type of development, governing documents set forth rules for
operation of that association. For example, in Civil Code section
1363(d), the law requires that membership or association board meetings
be conducted in accordance with a recognized system of parliamentary
procedure or any parliamentary procedures the association adopts.
Failure to do so is a violation of the law and may subject the board and
its members to potential liability or to having the acts they take
declared void.
As for an industry standard, assuming the reference is to the
common-interest development or homeowner association-related industry,
the statement is nonsense. An extensive search of the law and cases
using the term "common understanding and practice in the industry"
reveals no cases and no statutes using those words or any variations of
them, meaning they are not a part of any California or federal law.
Ignorance of the law is not an excuse for breaking the law. That phrase
is not the legal standard in California.
Most laws pertaining to common-interest developments can be found in the
California Civil Code, Government Code, California Administrative Code,
Business and Professions Code, Evidence Code, Revenue and Taxation Code,
Code of Civil Procedure, Health and Safety Code, Welfare and
Institutions Code, Vehicle Code, Internal Revenue Act, some federal laws
and case law.
There are many entities that may publish all or portions of the laws
pertaining to homeowner associations and residential deed-restricted
properties, but owners must be extremely careful not to mistake personal
or published "interpretations" of those laws as a substitute for the law
itself. This is a tempting, yet potentially costly mistake. The law is
what the legislature and the courts say it is, not what any attorney,
self-proclaimed authority or guidebook publisher says it is.
Statements made by vendors and association attorneys are only opinions
subject to a determination of right or wrong by a judge, jury or
criminal prosecutor. Any advice to disobey the law or act in accordance
with "industry standards" as opposed to the law itself can easily be a
disaster waiting to happen at the expense of the titleholders.
Questions can be sent to P.O. Box 11843, Marina del Rey, CA 90295 or
e-mailed to ***@mindspring.com.
Column: ASSOCIATIONS
By: By Stephen Glassman and Donie Vanitzian, Special to The Times
Title: FOLLOW THE LAW, NOT 'INDUSTRY STANDARDS'
QUESTION: Our owners and board try very hard to be fair and follow the
law, but it doesn't sit well with one of the self-appointed pooh-bahs.
He is an attorney, and without prompting or request from the board, he
sends out cleverly parsed opinion papers and lectures homeowners by
rehashing his reasons why the letter of the law is not accurate. Then he
proceeds to convince us that only his interpretation is right. All his
rhetoric carries the same verbose excuse why the board should not follow
the law exactly, and that's because he says it's "contrary to common
understanding and practice in the industry." He is confusing us, so we
want to know which is right: common understanding and practice in the
industry or the law?
ANSWER: Unless there is a specific legal exemption, laws apply to
everyone, including homeowner associations and boards, and the laws must
be obeyed.
In each type of development, governing documents set forth rules for
operation of that association. For example, in Civil Code section
1363(d), the law requires that membership or association board meetings
be conducted in accordance with a recognized system of parliamentary
procedure or any parliamentary procedures the association adopts.
Failure to do so is a violation of the law and may subject the board and
its members to potential liability or to having the acts they take
declared void.
As for an industry standard, assuming the reference is to the
common-interest development or homeowner association-related industry,
the statement is nonsense. An extensive search of the law and cases
using the term "common understanding and practice in the industry"
reveals no cases and no statutes using those words or any variations of
them, meaning they are not a part of any California or federal law.
Ignorance of the law is not an excuse for breaking the law. That phrase
is not the legal standard in California.
Most laws pertaining to common-interest developments can be found in the
California Civil Code, Government Code, California Administrative Code,
Business and Professions Code, Evidence Code, Revenue and Taxation Code,
Code of Civil Procedure, Health and Safety Code, Welfare and
Institutions Code, Vehicle Code, Internal Revenue Act, some federal laws
and case law.
There are many entities that may publish all or portions of the laws
pertaining to homeowner associations and residential deed-restricted
properties, but owners must be extremely careful not to mistake personal
or published "interpretations" of those laws as a substitute for the law
itself. This is a tempting, yet potentially costly mistake. The law is
what the legislature and the courts say it is, not what any attorney,
self-proclaimed authority or guidebook publisher says it is.
Statements made by vendors and association attorneys are only opinions
subject to a determination of right or wrong by a judge, jury or
criminal prosecutor. Any advice to disobey the law or act in accordance
with "industry standards" as opposed to the law itself can easily be a
disaster waiting to happen at the expense of the titleholders.
Questions can be sent to P.O. Box 11843, Marina del Rey, CA 90295 or
e-mailed to ***@mindspring.com.