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EMERGENCY!
EMERGENCY! OOPS! WE JUST HAD THE MEETING! YOU MISSED
IT!!!
Massive injustice by way
of confusion and corruption await all owners, Senate
Bill 528 is just what the industry ordered
by
D. Vanitzian, JD., Arbitrator
May
20, 2007
So THIS is what the
California Senate calls an "Open Meeting."
How many Open Meetings have THEY been to? Obviously
not many. ROTFLMAO!
Of the several areas of
law where this Senate Bill 528 will cause massive
problems for owners, time only permits a
cursory discussion below.
How
dangerous is this Bill? Very dangerous!
In one fell swoop,
this bill hands the board more
control and does so on a silver
platter. The Bill FAILS TO ADDRESS THE BOARD’S OWN
PREEMPTION! That is, the very minute the board hears
that they are going to be removed from office (that's
just one example) and a meeting has been
called to accomplish that end, hey! Why
not ELIMINATE THE NOTICE REQUIREMENT ALTOGETHER?
Ponder this: Once
Senate Bill 528 passes, the board need only give
FOUR DAYS NOTICE BEFORE ***ANY*** ***OTHER***
meeting that may have already been (1) planned, (2)
noticed, (3) scheduled AND the
board can do this while you are waiting for your
PLANNED MEETING:
- -AMEND THE BYLAWS
- -FINE AND PENALIZE
THE OWNERS (Senate Bill 528 gives the board time
to disqualify any candidates that will be replace
them)
- -SIGN EXISTING CONTRACTS
- -ENTER INTO NEW
BINDING CONTRACTS
- -CREATE AND
IMPLEMENT NEW PROJECTS
- -SPEND RESERVES
- -SELL PROPERTY
- -DEVELOP LAND
- -DESTROY EXISTING
STRUCTURES AND LAND
- -CHANGE
"FEE" REQUIREMENTS
- -FILE SMALL CLAIMS
ACTIONS
- -MAKE A REQUEST FOR
ARBITRATION
- -CHANGE THE CCRS
(puh-leeze don't say this doesn't and can't
happen! IT DOES with or without the owners
consent, I’ve seen it happen!, and there’s
MORE) The effect of this bill will send the owners
to the galleys.
--There's so
much more -- believe me, there is SO MUCH MORE -- I
didn't even tell you about the electronic disenfranchisement
of owners, it is rampant!
One problem with THIS
Legislature and the ones before it, all the way back
to the Davis-Stupid
Act,
is that Legislators throw-up on paper and
call it "law" and do so all
in the name of "For The People."
In my book, Common
Interest Developments--Homeowners Guide, Section 1:7
et seq., (Thomson/West 2006-2008) I discuss the many
problems surrounding "notice" and
"meetings" and the deleterious
effect these two (and other) issues have on
PROPERTY OWNERS.
For reasons known only
to them, California's legislature fails to
understand the concept of fair play and justice!
They fail to legislate
through LAW - safeguards - to PROTECT
deed-restricted property owners. The laws they are
passing are for CORPORATIONS NOT PEOPLE. When a law
is in place for the BOARD, the board is a
corporation, whether it is incorporated or not, it
falls under the jurisdiction of corporate laws.
[Common Interest Developments--Homeowners Guide,
(Thomson/West 2006-2008)]
There are NO
"TITLEHOLDER" laws to assist OWNERS in
protecting their P-R-O-P-E-R-T-Y. Instead our
property rights (if there are any) are handed over
to a board.
There are more sections
in the Davis-Stupid Act that guarantee
LAWYERS THEIR FEES, than there is a mention
of the word "HOMEOWNER." The word
"homeowner" is mentioned: THREE TIMES. Go
count how many times the word ATTORNEY FEES shows
up. The law is NOT written for us.
One of the FEW ---believe
me when I tell you F-E-W--- laws on the
books that came close to protecting the interests of
the OWNERS, was a TEN-DAY NOTICE REQUIREMENT FOR THE
ASSOCIATION BOARD MEETING. If
anything, it should be REQUIRED it should TEN DAYS
NOTICE AND THAT TWO NOTICES BE SENT AND
PROOF THEY WERE "RECEIVED" BY THE
RECIPIENT. Instead, our Legislature spends
taxpayer dollars disenfranchising us. Further,
any management company personnel that interfere with
these requirements should be prosecuted.
Senator
Aanestad, if you care about how your Bill will
effect millions of owners, please, pull this bill
now, so that we don’t have to beg you to fix it
after we’re forced to live by it.
That is what's happened with another BAD BAD BILL:
Civil Code Section 1363.03 - taking the lead for BAD
BILLS.
Pulling
Senate Bill 528 won’t make you look bad, it will
put you at the top of our list as A GOOD SENATOR, it
will show the public and most especially the OWNERS
that you are stronger than all the other Legislators
because you will be doing what is RIGHT and not what
is expected of you by the industry.
Senate Bill 528 will
come to be known as the "Let's Not But Say We
Did" Bill. Senate Bill 528 is
duplicative, not only of the Corporations Code but
other similar statutes that address the same issue
(and conflicting case laws).
Senate Bill 528 is a
waste of taxpayer money because this LAW
ALREADY EXISTS. In Corporations Code
Section 7211 "Special meetings of the board
shall be held upon four days' notice by first-class
mail or 48 hours' notice delivered personally or by
telephone, including a voice messaging system or by
electronic transmission by the corporation (Section
20). The articles or bylaws may not dispense with
notice of a special meeting. A notice, or waiver of
notice, need not specify the purpose of any regular
or special meeting of the board." Boards use
this law ALL THE TIME, special meeting or not! ASK
ME WHY THEY USE IT? BECAUSE THEY
":CAN" - THERE AIN'T NO PENALTIES FOR
RECALCITRANT BOARDS AND THEIR AIDER AND ABETTOR
MANAGEMENT COMPANIES!!!
The requirements under
Corporations Code Section 7211 for calling a special
meeting, aren’t special at all! Boards can merely
CALL IT a special meeting, the rules are loose. BUT,
the reason Corporations Code Section 7211 terms the
FOUR-DAY NOTICE a "special meeting" is
because THAT IS NOT ENOUGH TIME FOR A REGULAR
MEETING TO BE CONVENED. [this is ALL discussed AT
LENGTH, in my book (Common Interest
Developments--Homeowners Guide)]
Senate Bill 528 will
destroy what LITTLE owner protections that MAY exist
in the law.
Again, from my book,
there is NO STATUTORY DEFINITION in either the Davis-Stupid
Act or the Corporations Code for
"Regular" Meetings. [See Common Interest
Developments--Homeowners Guide] The reason for that
is: THE LEGISLATURE DID NOT WANT TO BOX THE BOARD
IN, let alone subject a board to being placed behind
bars where too many of the criminal DO belong.
Furthermore, if there is
NO DEFINITION FOR A "REGULAR MEETING"
Guess what? NO JUDGE WILL FAULT THE BOARD FOR THEIR
ILLEGAL MEETINGS - this is the blank check the
boards have been waiting for. As it is these
judges do not understand the law, they look to
association advisors FOR THE LAW and accept at face
value what they are told. IF THESE
STATUTES ARE NOT IPSO FACTO CRYSTAL CLEAR OWNERS
WILL CONTINUE TO LOSE THEIR CASES IN COURT.
This is NOT affordable housing, there is NOTHING
"affordable" about it.
ALL of these statutes
are geared toward giving the board MORE LEVERAGE. My
question is this: WHAT THE HELL DO BOARDS NEED MORE
LEVERAGE FOR?
Herein lies another BIG
problem with Senate Bill 528.
All you owners out there
need to understand what’s REALLY SCARY about this:
Effective May 17, 2007, a third reading of this
Senate Bill PASSED THE SENATE WITH 38 AYES.
THOSE 38 SENATORS NEED TO BE BOYCOTTED. It is
damn frightening that this bill passed.
It is
frightening because we will be forced to live under
this bad law with no hope of correcting it.
Senate Bill 528 purports
to codify "notice’ requirements WITHOUT
DEFINING "NOTICE" but also, this
type of notice is as useless as the paper it is
written on.
Here’s why.
WHAT
THE HELL IS THE DEFINITION OF "NOTICE" IN
THE DAVIS-STUPID ACT?
- --Is the notice
effective when the board sticks a stamp on the
envelope?
- --Is the notice
effective when the board actually places the
notice in a U.S. Post Box?
- --Is the notice
effective when the board sticks a post-it on top
of a telephone pole at 3:am?
- --Is the notice
effective when the board gives it to a third party
vendor who might be a
- manager, and say,
"here, its your problem, do something with
this?"
- --Is the notice
effective when the titleholder gets a flyer placed
their cluster f**k mailbox but the manager has the
key so the owner can’t access it until after the
meeting?
"Nothing
stops a board from claiming they gave notice, when
they did not."
See Vanitzian, Common Interest
Developments--Homeowners Guide, Section 1:7
(Thomson/West 2006-2008).
Nothing
could be more detrimental, nor dangerous than a
..... It is scandalous that the notice requirement
is whittled down to four (4) days.
This code section will prejudice and
disenfranchise every titleholder in a common
interest development from San
Francisco to San
Diego and back again. Owners who rely on
mailed notices or do not reside at a given property,
are ipso facto disenfranchised.
Presently the Open
Meeting Act is a farce for a variety of reasons, far
too many to list here. For too many owners the board
meeting is the only forum where they can actually
see their Wizards at work. That is, actually see
them face-to-face and watch them conduct business.
This Senate Bill will cut into what little time (and
believe me it is LITTLE TIME) that owners get to
speak at these sham meetings to begin with. NOW,
with this Senate Bill, individuals who are not
owners can speak. [more on this later]
Owners
don’t need this kind of help.
Here’s Senator
Aanestad’s Bill, that is FLYING through the
Legislature with flying colors. Everyone voting for
something THEY HAVE NO DAMN CLUE ABOUT. And who will
be left to abide by these BAD BAD BAD LAWS...take a
guess. It ain’t gonna be Senator Aanestad.
Owners, please contact
the Senator's office and make him aware of your
views. Then call those 38 numbnuts and tell
them: WE'RE
NOT GONNA TAKE IT ANYMORE!
Take a look at this BAD
BILL - effective at the time I wrote this
article, please check www.senate.ca.gov
for the most current version of this proposed Senate
Bill 528:
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EMERGENCY!
EMERGENCY! OOPS! WE JUST HAD THE MEETING! YOU MISSED
IT!!
So THIS is what the Senate calls an "Open
Meeting." How many Open Meetings have THEY been
to? Obviously not many. ROTFLMAO!
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AMENDED IN SENATE
APRIL 24, 2007
Introduced by Senator
Aanestad
February 22, 2007
An act to amend Section
1363.05 of the Civil Code, relating to common
interest developments.
legislative counsel’s
digest
SB 528, as amended,
Aanestad. Common interest developments: open
meetings.
Existing law requires
that a common interest development be managed by an
association. The Common Interest Development Open
Meeting Act provides that any member of the
governing association of a common interest
development may attend meetings of the board of
directors of the association, except as specified.
The act also requires that notice of the time and
place of a meeting be given to members at least 4
days prior to the meeting, except in the case of an
emergency meeting, as described.
This bill would require
the above notice to contain the agenda for the
meeting. It would prohibit the board of directors
from discussing or taking action on any subject
matter at a nonemergency
meeting unless the
subject matter was placed on the agenda included in
the notice. The bill would provide that these
provisions do not prohibit a resident who is not a
member of the board from speaking on issues not on
the agenda. The bill would also make technical
changes.
Vote: majority.
Appropriation: no. Fiscal committee: no.
State-mandated local
program: no.
The people of the State
of California
do enact as follows:
SECTION 1. Section
1363.05 of the Civil Code is amended to read:
1363.05. (a) This
section shall be known and may be cited as the
Common Interest Development Open Meeting Act.
(b) Any member of the
association may attend meetings of the board of
directors of the association, except when the board
adjourns to executive session to consider
litigation, matters relating to the formation of
contracts with third parties, member discipline,
personnel matters, or to meet with a member, upon
the member’s request, regarding the member’s
payment of assessments, as specified in Section 1367
or 1367.1. The board of directors of the association
shall meet in executive session, if requested by a
member who may be subject to a fine, penalty, or
other form of discipline, and the member shall be
entitled to attend the executive session.
(c) Any matter discussed
in executive session shall be generally noted in the
minutes of the immediately following meeting that is
open to the entire membership.
(d) The minutes, minutes
proposed for adoption that are marked to indicate
draft status, or a summary of the minutes, of any
meeting of the board of directors of an association,
other than an executive session, shall be available
to members within 30 days of the meeting. The
minutes, proposed minutes, or summary minutes shall
be distributed to any member of the association upon
request and upon reimbursement of the
association’s costs for making that distribution.
(e) Members of the
association shall be notified in writing at the time
that the pro forma budget required in Section 1365
is distributed, or at the time of any general
mailing to the entire membership of the association,
of their right to have copies of the minutes of
meetings of the board of directors, and how and
where those minutes may be obtained.
(f) Unless the time and
place of meeting is fixed by the bylaws, or unless
the bylaws provide for a longer period of notice,
members shall be given notice of the time and place
of a meeting as defined in subdivision (j), except
for an emergency meeting, at least four days prior
to the meeting. Notice shall be given by posting the
notice in a prominent place or places within the
common area and by mail to any owner who had
requested notification of board meetings by mail, at
the address requested by the owner. Notice may also
be given, by mail or delivery of the notice to each
unit in the development or by newsletter or similar
means of communication. The notice shall contain the
agenda for the meeting.
(g) An emergency meeting
of the board may be called by the president of the
association, or by any two members of the governing
body other than the president, if there are
circumstances that could not have been reasonably
foreseen which require immediate attention and
possible action by the board, and which of necessity
make it impracticable to provide notice as required
by this section.
(h) The board of
directors of the association shall permit any member
of the association to speak at any meeting of the
association or the board of directors, except for
meetings of the board held in executive session. A
reasonable time limit for all members of the
association to speak to the board of directors or
before a meeting of the association shall be
established by the board of directors.
(i) The board of
directors of the association may not discuss or take
action on any subject matter at a nonemergency
meeting unless the subject matter was placed on the
agenda included in the notice that was posted and
distributed pursuant to subdivision (f). This
subdivision does not prohibit a resident who is not
a member of the board from speaking on issues not on
the agenda.
(j) As used in this
section, "meeting" includes any
congregation of a majority of the members of the
board at the same time and place to hear, discuss,
or deliberate upon any item of business scheduled to
be heard by the board, except those matters that may
be discussed in executive session.
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