Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #36 • January 2010
Who Do You Trust?
The Essential Ingredient in Effective Management of Community Associations
By Tyler P. Berding, Esq.
When there is war inside a community association, there are usually several sides—the owners, the board of directors, management, and sometimes, lawyers. Each brings their unique perspective to the dispute, and each may distrust the views, or worse, the motives of the other. That they should all be working together to manage a project that is inherently unmanageable is beside the point—when there is a lack of trust cooperation goes by the boards and issues that should be open to easy solutions instead become a battleground. Why are we wasting good ink to discuss disputes that are often inconsequential in the scheme of things? Because lack of trust can paralyze a community association just when economics require unprecedented cooperation.
Examples? Board members who are convinced (by themselves or others) that they must follow the dictates of a statute may pursue enforcement measures that are too rigid for the situation. Owners who lack an understanding of the history of an association, its economic condition, or the legal authority under which it operates may believe that rules can be ignored. Attorneys who lack sensitivity to the emotional side of a dispute among board members may try to resolve the issue with formality when flexibility and consideration of human nature is required. Owners with short-term interests may reject the needs of longer-term residents. Managers who lack the confidence to confront wayward board behavior with strong leadership may fear losing favor and perhaps the account.
There are hundreds of other sources of friction within a community association, but all of the foregoing have one thing in common—a breakdown in trust among the principal players. This can happen in various ways: a clash of egos; lack of education or experience; a history of conflicts among individuals or between individuals and the board of directors; personal "vendettas;" and outsized expectations. In each case, the conflict often has its roots, not in the practical reality of the issues at hand, but rather in the unwillingness of one party to trust the motives of another. "Why" someone has taken a particular position often becomes more important than what is actually at stake. A suspicion of motives can distract the search for truth. So how do we instill trust? Let's look at each of the principal players.
1. The Board of Directors. The board of directors of a typical community association is composed of volunteers. They have a big responsibility and it is no wonder that responsibility weighs heavily on them. Most of the directors we know are conscientious, self-sacrificing individuals who sincerely want "to do the right thing." Many have business training that equips them with experience and knowledge vital to their management role. But associations are not exactly like businesses. There is a big political factor at play as well. Owners make demands, fail to obey the rules, or are simply apathetic. Any or all of this can frustrate a well-meaning board. Sometimes it may be more convenient to simply hide behind the rules rather than try to deal with human nature. The advice of managers or attorneys will typically be to follow the statute or the governing documents because that's the most logical (and lawful) thing to do. But the right path may not always be to just follow the rules. The right path may also require a human touch, flexibility, and a willingness to explore creative solutions that create relationships. And develop trust.
Berding|Weil Q&A of the Day
A landslide occurs on association common area where it adjoins an uphill neighboring property. What caused it and who is responsible for repairing it?
Determining the legal liability for a landslide or other earth movement can be tricky. The storms we are presently experiencing will increase the number of landslides in California, so it's important to understand the mechanics of a slide as well as the law governing liability. Landslides can occur naturally or in man-made slopes.
Natural landslides occur all over California and usually start moving as a consequence of a rainstorm when water penetrates the hillside and causes the under surfaces of the slide (the slip plane) to lose friction and move. If the water is flowing downhill from the neighbor's property the neighbor may be responsible if he fails to control the drainage. On the other hand, if the slide is primarily on the association's property, the association has a responsibility to maintain it and if it moves and takes some of the neighbor's property down with it, the association could be liable.
A slide in a man-made, cut or fill slope may be caused by over-steepening of the cut slope, a lack of compaction of the fill, poor drainage--or some combination of all three. The developer of the property, the soil engineer, and the grading contractor may share responsibility if the problem is found within ten years of the grading work. Determining the cause, designing a repair, and assigning responsibility for slides in both natural and man-made terrain will require the services of a geotechnical engineer.

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