Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #49 • July 2010
Major Reconstruction Projects in
Community Associations
An Overview of the Unexpected
by Tyler P. Berding, Esq.
The Big Surprise
Every community association will face a major reconstruction project several times in the life of the development. This may occur because of clearly anticipated problems, such as re-roofing or re-painting, but it also will occur because of completely unanticipated (and unreserved-for) problems such as dry rot repair, soil subsidence, and leaks in windows, siding, and foundations. The Davis-Stirling Act only requires that a community association reserve study include those components that visual inspections into accessible areas reveal have a useful life of 30 years or less.
But what about components in areas that are not visible or accessible? What about areas under staircases that sponsor dry rot due to long-term intrusion of water? Framing components under siding that have allowed water to enter slowly for years without any way to get it out except evaporation? Deteriorating concrete walkways or driveways due to the invasion of roots or soil subsidence due to unconsolidated fill? Or, balcony railings rotting off at their interior supports? Three people in Antioch were severely injured recently when such a railing collapsed.
None of these building components would be included in the usual reserve study and unless detected by some other means, would not appear in the maintenance budget, yet the association in a typical condominium and in many planned developments is nevertheless responsible for necessary repairs. This scenario has played out in many associations. Unexpected repairs for which there was no reserve funding.
So now you have a collapsed balcony or maybe a lot of rotted siding--what do you do?
Finding the Right Expert
The first thing to do is to retain the services of someone who can advise the association on the proper means of repair. General contractor, architect, engineer, or construction manager? Which expert will you need? A lot depends on the complexity and extent of the problem. If, for example, you have a failed balcony support beam—something that has rotted due to years of water intrusion—just replacing the failed beam may not be enough. You don't want it to happen again.
The first thing would be to retain someone who is a pro with waterproofing. Would you choose a building consultant or an architect? Architects are more expensive, but for a very complex waterproofing issue you want someone who has enough skill and understanding to re-design the system to make it watertight.
On the other hand, if the basic design is sound, but the materials have failed to do their job, a materials consultant who specializes in waterproof membranes may be the right choice. In our practice, we would start with the architect or an engineer because this particular balcony railing example involves a life-safety issue and because a re-design and/or strength calculations may be necessary.
Berding|Weil Q&A of the Day
By Steven S. Weil, Esq.
Can a director resign and still help decide on their replacement?
Yes. The director can condition his/her resignation on the happening of an event, such as the election, by the board, of his successor.
If a director stands up at a meeting and shouts "I quit - I've had it - I'm resigning" and the next morning changes her mind, is her resignation effective?
Probably not. Under the Corporations Code, a resignation is "effective upon giving written notice to the chairman of the board, the president, the secretary or the board of directors...". There might be situations however in which the Association takes obvious and public steps (like setting a new election) in response to the "resignation announcement" such that the director would be estopped from arguing the resignation was not effective. To avoid this, the board should immediately confirm the resignation in writing.
If members seek a petition to recall the board, must a concurrent election be held to replace the directors if the recall succeeds?
No law requires this but if a director is recalled, he/she is, as of the conclusion of the ballot count, no longer on the board. Some bylaws say that only the members (not the board) can select a director to serve out the term of the removed director in which case holding the election the same night as the recall makes sense. Also, if the entire board is removed, unless the election of a new board occurs concurrently the result of a successful recall would be to have no board at all.

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