BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1720


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          Date of Hearing:  April 27, 2016


               ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT


                                  David Chiu, Chair


          AB 1720  
          (Wagner) - As Introduced April 4, 2016


          SUBJECT:  Common interest developments:  meetings


          SUMMARY:  Requires a homeowners association (HOA) in a common  
          interest development (CID) to permit a person that represents a  
          member to attend board meetings.  Specifically, this bill:  


          1)Requires a HOA to permit a person who represents a member to  
            attend any board meeting that the member is permitted to  
            attend, regardless of whether the member attends. 


          2)Requires the member to give the board at least forty-eight  
            hours advance written notice that a person representing the  
            member will attend the board meeting.


          3)Makes other technical amendments.


          EXISTING LAW:  


          1)Provides that a HOA member may attend board meetings, except  
            when the board adjourns to, or meets solely in, executive  








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            session. 


          2)Requires a HOA board of directors to permit any member to  
            speak at any meeting of the association or the board, except  
            for meetings of the board of directors held in executive  
            session. 


          3)Requires a HOA to provide a fair, reasonable, and expeditions  
            internal dispute resolution (IDR) procedure that at a minimum  
            must include the following procedures:


             a)   May be invoked by either party to the dispute 


             b)   A request to invoke IDR must be in writing;


             c)   Requires a HOA to participate if a member requests IDR;


             d)   Allows a member to elect not to participate if IDR is  
               invoked by the HOA;


             e)   If a member participates but the dispute is resolved  
               other than by the agreement of the member then the member  
               has the right to appeal to the board of directors;


             f)   A written resolution or agreement that is signed by both  
               parties of a dispute and is not in conflict with the law or  
               governing documents binds the HOA and is judicially  
               enforceable; and


             g)   Allows a member or the HOA to be assisted by an attorney  








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               or another person in explain their position at their own  
               costs. 


          1)Defines "alternative dispute resolution" (ADR) to mean  
            mediation, arbitration, conciliation, or other nonjudicial  
            procedure that involves a neutral third party in the decision  
            making process.   ADR may be binding or nonbinding with the  
            voluntary consent of either party. 


          2)Requires a HOA or a member, prior to finalizing an enforcement  
            action in the superior court to endeavor to submit their  
            dispute to ADR.


          3)Provides that either  a HOA or a member may initiate ADR by  
            serving the other party with a Request for Resolution that  
            must include the following:


             a)   A brief description of the dispute between the parties;


             b)   A request for ADR;


             c)   A notice that the party receiving the  Request for  
               Resolution is required to respond within 30 days of receipt  
               or the request will be deemed rejected; and 


             d)   If the party to whom the request is served is member a  
               copy of the article.


          1)Requires service of the Request for Resolution to be made by  
            personal delivery, first-class mail, express mail, facsimile  
            transmission, or other means reasonably calculated to provide  








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            a party to whom the request is served actual notice of the  
            request. 


          2)Provides that a HOA or member has 30 days to respond to a  
            request for ADR and if the party served with the Request for  
            Resolution does not accept the request within that period that  
            the request is deemed rejected.  


          3)Provides that if both a HOA and member agree to ADR, the ADR  
            must be completed within 90 days after the party that  
            initiated receives acceptance from the other party unless both  
            parties agree to an extension.   


          FISCAL EFFECT:  None.


          COMMENTS:  


          There are over 50,000 CIDs in the state that range in size from  
          three to 27,000 units.  CIDs make up over 4.9 million housing  
          units which represents approximately one quarter of the state's  
          housing stock.  CIDs include condominiums, community apartment  
          projects, housing cooperatives, and planned unit developments.   
          CIDs are governed by the Davis-Stirling Act as well as the  
          governing documents of the association including bylaws,  
          declaration, and operating rules. 


          Conflicts arise between members of an HOA and the board of  
          directors regarding interpretation of the governing documents  
          and operating rules. In 2004, AB 1836 (Harmon) (2004) Chapter  
          754, required that HOAs provide the members an IDR process at no  
          cost.  Either the member or the HOA can request IDR, however the  
          HOA cannot compel the member to participate. Any agreement that  
          is reached in IDR that is not in conflict with the law or the  








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          governing documents is judicially enforceable.  If an HOA does  
          not provide an IDR procedure then the bill created a statutory  
          "meet and confer" process that HOAs must follow. The bill was  
          sponsored by the California Law Revision Commission to give HOAs  
          a standard, informal process to try to resolve disputes before  
          they become serious.  In addition to IDR, a HOA or a member may  
          request ADR to resolve a dispute. Before filing an enforcement  
          action, a HOA and a member are required to request ADR in  
          writing. ADR must be completed within 90 days of either party's  
          request and the results can be binding or nonbinding.  





          In 2014, AB 1738 (Chau) Chapter 411, Statutes of 2014 revised  
          the IDR process to allow a HOA or a member to bring an attorney  
          or another person to participate in informal dispute resolution  
          (IDR) at their own cost.  The bill also made it clear that an  
          agreement reached as part of an IDR must be in writing.  The  
          sponsor of AB 1738 is sponsoring this measure to require a HOA  
          to allow any person representing a member to attend a board  
          meeting regardless of whether the member is in attendance. A  
          member would be required to provide the board of director's  
          forty-eight hours written notice that a person representing a  
          member will attend the board meeting. 





          In addition to the meet and confer process, IDR, and ADR, a  
          member of an HOA can pursue a claim against a HOA in small  
          claims or civil court         













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           Arguments in support  : According to the sponsor of this bill, "AB  
          1720 would reaffirm in the law that a member of a common  
          interest development (homeowner) may be accompanied by legal  
          counsel at any meeting of the homeowners' association (HOA)  
          board the member is permitted to attend, and may also designate  
          counsel to speak on the member's behalf, whether or not the  
          member is present at the meeting. It also provides that where  
          possible, the member shall give the board at least 48 hours  
          advance written notice that his or her attorney will attend the  
          board meeting. For years, case law strongly inferred that,  
          because HOA boards are quasi-public entities akin to local  
          governmental bodies, homeowners appearing before the boards had  
          a right to be represented by counsel and the member's own  
          expense (See Cohen v. Kite Hill Community Association (1983)142  
          Cal. App. 3d 642; Damon v. Ocean Hills Journalism Club (2000)85  
          Cal. App.4th 468; and Cabrera v. Alam (2011)197 Cal. App.  
          4th1077).  This changed in 2013, however, with the decision in  
          SB Liberty, LLC v. Isla Verde Association, Inc. (2013) 217  
          Cal.App.4th 272, which held that the statutory provision  
          permitting members of an HOA to attend open board meetings  
          applied to the owners only, and that a community association may  
          bar attorneys representing those homeowners from attending any  
          and all meetings - even when the association is represented by  
          its own attorney.  The decision in SB Liberty denies homeowners  
          in need - who may be elderly, ill, disabled, unsophisticated or  
          otherwise unable to fully defend their interests - to have the  
          benefit of counsel at a time when critical decisions affecting  
          their legal rights are being made. AB 1720 will correct this  
          injustice, ensuring that homeowners are not denied the presence  
          of or representation by counsel at what could be a very  
          intimidating and critical time." 





           Arguments in opposition  : According to the California Association  
          of Community Managers, "in addition to the IDR process, there  
          are other mechanisms that serve to ensure homeowners have the  








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          ability to obtain counsel prior to board decisions.  For  
          instance, for significant assessments increases, laws are in  
          place that requires member approval through a secret ballot  
          process. For changes to Rules and Regulations, there must be a  
          30-day comment period, adoption at an open meeting and notice of  
          adoption and implementation.  In all of these scenarios, a  
          member already has the ability to have an attorney or other  
          person review proposals and provide input to the Board within  
          the already established Open Meeting Act for Common Interest  
          Developments.  AB 1790 would almost certainly force HOA boards  
          to have attorneys present at all HOA meetings. This would  
          dramatically increase HOA budget costs and, as a result, would  
          likely force HOA's to increase member assessments to make up for  
          these unanticipated increased costs. The bill is of particular  
          concern to small-to-mid size HOAs who typically cannot affordab  
          to have attorneys present at all meetings.  All the HOA members  
          would, in the end bare the weight of increases costs that result  
          from individual members' desires to have his or her attorney  
          present."





           Staff comments:  


          Existing law provides several different avenues for resolving  
          disputes between a member and a HOA including: a meet and confer  
          process, IDR, and ADR, and the courts.  Under this bill, anyone  
          that a member selected could attend a board meeting on their  
          behalf, including their attorney.  The IDR process was amended  
          last year to allow an attorney or any other person to attend on  
          behalf of either a member of the HOA. The committee may wish to  
          consider if disputes between an HOA and member would better be  
          handled through the existing dispute resolution options. 


           Double referred:  If AB 1720 passes this committee, the bill will  








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          be referred to the Committee on Judiciary.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Conference of California Bar Associations (Sponsor)


          Center for California Homeowner Association Law  




          Opposition


          California Association of Community Managers


          Community Associations Institute


          Larry Stirling 


          Iger Wankel & Bonkowski, LLP


          Lake Forest II Master Homeowners Association


          Sun City Roseville Community Association, Inc.









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          Management Professionals, Inc.


          Packard Management Group


          Individuals (565)







          Analysis Prepared by:Lisa Engel, H. & C.D. / (916) 319-2085