by Melissa Bauman Ward, Esq.
In our previous article in this series, E-Delivery of Budget Packages, Sandra Bonato described last year's amendments to the Davis-Stirling Act which allow community associations to deliver key documents to members electronically. Here we offer some practical and legal guidelines for an E-delivery program.
Is E-Delivery Right for You?
Before calling your association attorney to create an e-delivery policy, ask yourself if e-delivery is right for you. To use e-delivery, managers must keep accurate electronic records with a computer system capable of handling e-delivery requirements. The ability to scan1 sensitive documents such as budgets and other financial materials is required.
Similarly, if a majority of your members are not computer literate, distrust electronic delivery, or simply prefer to receive a hard copy, then the time and expense of setting up electronic delivery for just those members who can utilize it may not be worth it. But if the membership currently doesn't support electronic delivery, educate them. It's efficient and it's fast.
If you're ready to take the plunge, congratulations! Read on for more particulars to get you started.
Start with a Policy
Even though the Davis-Stirling Act authorizes electronic delivery of certain listed documents, your association Board of Directors should obtain and adopt a specific e-delivery policy. Your association counsel can insure that your policy meets the requirements of the statute. A written policy also insures that present and future board members have a template to follow. The policy should clearly lay out the association's legal responsibilities for communication, disclosures, and education of owners and residents.
Approve the policy and then decide on the details.
Choosing Your Preferred Method of E-Delivery
There are two basic ways in which to transmit documents electronically: (1) E-mail to members, or (2) a secure website.
If the Association's website is password-protected then creating a document depository is an easy choice. An additional benefit is that the website becomes a library of important documents which members can access at their convenience.
If a secure website isn't available or your members simply prefer getting their documents directly, then e-mail will work. Just remember, the documents need to be in read-only format to protect their integrity.
By Steven S. Weil, Esq.
If the Association allows an owner to add or modify an improvement that violates the CC&Rs (for example, violates a set back or a height requirement) can the board "change its mind" and force the owner to remove the improvement?
In some situations yes. In one case, an owner was allowed to build a spa on an easement between homes that forbade structures. When the mistake was realized, the board asked the owner to remove the spa and agreed to finance the cost. The owner refused. The association sued and the Court agreed that the owner had to remove the spa. The case would have been allot more difficult if the board had not offered to pay the costs or if the CC&Rs had not clearly banned improvements on the easement. Other approaches include "grandfathering" or perhaps subjecting future architectural changes to modifications of the improperly approved improvement. Creative solutions might exist even for something that was but shouldn't have been approved.
A candidate for the board has violated the CC&Rs. Can the board deny her the right to run?
A: Yes, provided the bylaws require directors to be "in good standing" and the board has given the owner notice of the violation and an opportunity to have it addressed at a hearing. This hearing should be held long before the nomination period ends. It is important that the hearings to determine violations when elections (especially director recalls) be fair and be perceived to be fair.
WHAT HAPPENS WHEN BOARDS VIOLATE
And Is There Such a Thing as "Condo Police?"
By Steven Weil & Andrea O'Toole
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