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2023 New Law Update

Tis' the season for pumpkin spice lattes and new law updates. After several years of hand wringing legislative changes, 2023 shaped up to be a year of mostly beneficial legislative changes and cases.

This year's legislative and case law highlights

• Virtual Meetings (AB 648) – Amended Civil Code §4090 and added a new Section 4926 to the Civil Code. This law authorizes associations to hold wholly remote Board meetings without also needing to provide a physical location. Certain information – including logon and contact information for assistance in connectivity issues – must be provided on the agenda.
• Quorum for Director Elections (AB 1458) – Amended Civil Code §5115 and Corporations Code §7512. This law will allow an association that does not have in its Bylaws a lowered quorum for adjourned member meetings for Director elections to now have a 20% lowered quorum for such elections. If an association already has a lower adjourned quorum for Director elections, it is not affected by this law. The quorum change only applies to the elections of Directors, and no other types of member meetings.
• Director Qualifications (AB 1764) – Amended Civil Code §5103 and §5105. The law confirms our prior interpretation and understanding that Directors and Candidates are subject to the same qualifications.
• More ADUs (AB 1033 & AB 976) – Amended Government Code §65852.2 and §65852.26. The latest changes to the law allow for the potential sale of an ADU separate from the primary residence, but impose requirements for lender and association approval beforehand. Associations are not required to approve the sale, and largely due to the potential impact a proliferation of ADUs within a community will have, we do not recommend it.
• Common Area Water Restrictions (AB 1572) – Amended Water Code §10608.12 and §10608.14. This law will impose bans on irrigating nonfunctional turf (meaning grass that is not for recreational purposes, sports fields, or includes trees) starting in 2029.
• Director emails discussing board business do not qualify meetings (LNSU #1 v. Alta Del Mar Coastal Collection Community Assn.)
• Association is permitted to litigate owners' separate interest construction defects through a class actions lawsuit (River's Side at Washington Square Homeowners Assn. v. Sup. Ct.)
• Approval threshold for recall elections of 50+ unit association is determined by statute (majority of a quorum) and not Bylaws (Lake Lindero Homeowners Assn. v. Barone)
• Harassment orders are allowed on behalf of Board members (North Coast Village Condominium Assn. v. Phillips)
• Ballots and members present (who had not voted) both count towards quorum for Director elections (Takiguchi v. Venetian Condominiums Maint. Corp.)

Recommended To Do's for your community in response to these new developments:

• Adopt a Digital Meeting Policy.
• Adopt a Board Email and Communication Policy.
• Adopt an ADU Policy (for planned developments only).
• Adopt a Harassment, Nuisance and Complaint Reporting Policy.
• Review Bylaws and Election Rules to synch Director and candidate qualifications.
• Review the association's common areas to identify nonfunctional turf and start developing a plan and cost estimate to be ahead of the 2029 water restriction deadline.

Contact jjackson@berdingweil.com if you have questions or would like to discuss recommendations for your community. We're happy to help!

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