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Subject: Membership list question
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SashaE1


Posts:56


07/26/2020 12:56 AM  
We are in Monterey Ca. The HOA has the gym closed due to the pandemic and also the two pools we have becuz the cost to follow the state requirements is too cost prohibitive and the liability of contracting this virus isn't covered by our HOA insurance. So we have two HOA members that have been trespassing in the facilities. The two guys post pictures of doing this and have refused to leave when our security guard had asked them too. The police were almost called in one incident but both men left. One of the guys had conversations with other HOA members saying that it is their right to use the pool because the governor now allowed for pools to open and to just go ahead and use the pool but just take wipes and lysol to disinfect and follow the guidelines. This same men now want a copy of the membership list to talk to other HOA members to reopen the pool and the gym. How do we know that these two men won't be selling their propaganda of telling other HOA members just to go ahead and use the pool and gym as long as they take their own wipes and disinfectants regardless that the Board voted to keep the pool and gym close due to the pandemic. Will this put the HOA at risk if they do use the facilities and something happens? Can the Board deny giving these two men the membership list?
MelissaP1
(Alabama)

Posts:9446


07/26/2020 4:57 AM  
The membership list isn't that secret. All they have to do is walk around the neighborhood to get everyone's addresses. They are public. However, these guys are NOT going to make that kind of effort. So the HOA can give them a list if they want. It's still the board's decision to do what is right.

It's not the liability thing about getting the virus at the pool. There's just too much legal stuff attached to that right now that it's impossible or will be impossible to sue someone for claiming got the virus there. So I wouldn't even entertain that as a thought.

What is important is your HOA following the CDC/State guidelines in opening facilities IF it chooses too. The HOA is incorporated and must act on it's responsibility as a whole. These 2 members do NOT represent the HOA as a "whole" but shareholders.

Maybe your HOA does have enough people whom want to use the facilities. It's not a given "right" to do so. It's an availability thing. It simply isn't available right now due to pandemic reasons. Doesn't mean later when restrictions or the ability to be responsible opens up the HOA can't open them.

Unfortunately, your going to be dealing with some people whom simply do NOT get it. They won't till they get it or someone close to them does. Nothing you can do about it but to protect yourself and as many others as you can. I come from a place where we were the "epicenter" when it started spreading. Seen it first hand to know, it's not something that can be "controlled" or not readily spread. Best option is to social distance, wear a mask, and wash everything! Where I am now they took ALL those efforts and it paid off. However, we still have cases popping up. It's just we now know we are NOT the source.

Former HOA President
AugustinD


Posts:3683


07/26/2020 6:25 AM  
Posted By SashaE1 on 07/26/2020 12:56 AM
Can the Board deny giving these two men the membership list?
Not lawfully, no. And now should a board seek to quiet voices that have a different point of view as their own. (Said different point of view here being, "The pool et cetera should be open.") The Board can address any lies in its own newsletters. The Board can also have the HOA attorney send anyone who sends out legally defamatory statements a warning letter. Davis-stirling.com addresses what records a HOA must lawfully provide to members, and among them is membership lists.
BenA2
(Texas)

Posts:758


07/26/2020 9:06 AM  
They are probably entitled to a list of owners but not necessarily owners' emails and phone numbers. That is going to depend on your state law.
KerryL1
(California)

Posts:7397


07/26/2020 9:06 AM  
Augie is right, Sasha, concerning CA.

But I'm wondering why these two aren't being fined for violating your HOA's rules? You do have the ability to fine, right? And you do have a schedule of fines, right?

In addition, your CC&Rs might give the Board the power to withhold other amenities (if you have others worth withholding).

Our pool is accessed by fob, which we deactivate if we withhold pool use from violators. You also can stop heating the pool, if you haven't already, which might help. (I lived in Santa Cruz all on the Monterey Bay for many years and the evenings there & in Monterey are chilly as are many days.)

MarkW18


Posts:1290


07/26/2020 10:43 AM  
Under the circumstances, the members would be entitled to the list, which would also include an email addresses you might have on file that the HOA uses to communicate. I would send out an opt-out to the owner prior to releasing the list.

None of the HOA's I manage have opened their pools or spas as they don't have the employees or personnel to maintain to the state standards. They could be liabilities and lawsuits, no one knows. Have your attorney handle this or maybe your insurance company and their legal resources.

Another source of information is the newsletter provided by the following link, https://www.davis-stirling.com/Newsletters. It has advice on what board should or shouldn't do during this pandemic.
JohnC46
(South Carolina)

Posts:9678


07/26/2020 12:45 PM  
Sasha

The BOD has made its decision and needs to stick to it even when some disagree. I say do three things:

1. Give them the mail list.
2. Commence fining them for breaking the R&R's.
3. Prepare and mail a letter to owners explaining the BOD's decision and reasons for keeping the pool closed. The primary reason is for everyone's health but also the association cannot afford the cost that the government requirements to be open without a special assessment or a dues increase. Maybe even cite some costs. In the letter do not make any specific reference to "complainers" as you do not want to make it like they have good cause. Ignore them.

If the whole issue dies, as I expect it will, then there may well be no need to even send the letter, but be prepared to send it.
MarkW18


Posts:1290


07/26/2020 1:16 PM  
Posted By JohnC46 on 07/26/2020 12:45 PM
Sasha

The BOD has made its decision and needs to stick to it even when some disagree. I say do three things:

1. Give them the mail list.
2. Commence fining them for breaking the R&R's.
3. Prepare and mail a letter to owners explaining the BOD's decision and reasons for keeping the pool closed. The primary reason is for everyone's health but also the association cannot afford the cost that the government requirements to be open without a special assessment or a dues increase. Maybe even cite some costs. In the letter do not make any specific reference to "complainers" as you do not want to make it like they have good cause. Ignore them.

If the whole issue dies, as I expect it will, then there may well be no need to even send the letter, but be prepared to send it.



The question wasn't should the HOA fine them\, it was should they give them the membership list.
In addition, the HOA has to be able to fine, they also have to provide due process.
SashaE1


Posts:56


07/26/2020 1:51 PM  
Thanks everyone for replies. Our MC did send out a letter of noncompliance for the trespassing which was reported with a picture sent in by a homeowner to the MC. As Mark states, that would be the first step becuz of due process.

Kerry, we did turn off our pool heaters. Yes it is very chilly here in Monterey, even in the summer season.

John, we had already sent out notices to the homeowners explaining to them what the HOA would need to purchase in order to follow the required guidelines and also hire extra services like janitorial and security guard to monitor. We decided the cost of doing so was prohibitive in addition to covid-19 chose to keep the pools and gym closed. It died down but these two keep on and on about how it wouldn't cost that much and how it is illegal that we still have the pools closed after the governor allowed for pools to reopen. They are also telling other homeowners that we don't need a guard and homeowners can volunteer to monitor and that the HOA can open the pools for free. In the meanwhile they have encouraged other homeowners who want to go use any of the pools to just do it becuz it is their right just to take lysol wipes with them to follow the guidelines. We have a fob system but it does not show any homeowner entering it becuz we deactivated it. These two men most likely have jumped the gate to get in. Another homeowner reported that they are leaving it open for others to sneak in. We do have pictures of the gate being prop open sent in by someone to the MC but we cannot prove it was these two men who opened it.

What we are trying to avoid is opening their network of homeowners for them to now email them with this propaganda. How can improper purpose be justified in a case where a denial of membership list would be legal to do?
GeorgeS21
(Florida)

Posts:2902


07/26/2020 2:16 PM  
Sasha,

You may be getting right/wrong confused with what you are legally, and frankly, fairly bound to do.

Give them the minimum information required by law - if there are provisions to charge them for the labor involved, do that, as well.

Take lots of photographs and videos. See what legal recourse is allowed and reasonable wrt the trespassing - what signage is required, what specific provisions for Board involvement (i.e. specific statements of restrictions, etc).
GenoS
(Florida)

Posts:3925


07/26/2020 2:21 PM  
Posted By SashaE1 on 07/26/2020 1:51 PM
What we are trying to avoid is opening their network of homeowners for them to now email them with this propaganda. How can improper purpose be justified in a case where a denial of membership list would be legal to do?

You can't stop their "network" from talking with each other, no matter what they're talking about. Stop trying to demand that they justify themselves to you so that your arbitrary standard of a "proper purpose" is met. You don't get to restrict the membership list in an arbitrary and capricious manner because they're not following your "proper purpose".

I would agree that the members flagrantly violating your pool closing need to be dealt with, and I think it's up to you to figure out a way to do it legally. I think your totalitarian impulse to deny their right to the membership list is not a good look. It's ugly.
SashaE1


Posts:56


07/26/2020 2:35 PM  
George, thanks for suggestions.

Geno, all four of us on our board (we have 5 but there is a seat open) are not trying to deny membership list for arbitrary or capricious manner, we just do not want these two men to encourage others to trespass with false information as they already have. As for the improper purpose that is something another board member said that cab legally be done to deny a membership list to someone. It isn't something we wrote, it is in the civil code from what they shared with me.

I think as Mark suggests, to seek legal advice from our attorney would be best, and get the opt out information out too. Unless we can decide how to legally determine improper purpose in this particular case then based on all I read and your suggestions, it seems we will have to honor their request and simply hope they will not get a new network of homeowners to trespass along with them. However if it does happen, then unfortunately we will need to pay the costs to deal with it and document and follow our fine schedule to address their noncompliance.
AugustinD


Posts:3683


07/26/2020 3:27 PM  
Posted By SashaE1 on 07/26/2020 1:51 PM
we had already sent out notices to the homeowners explaining to them what the HOA would need to purchase in order to follow the required guidelines and also hire extra services like janitorial and security guard to monitor. We decided the cost of doing so was prohibitive in addition to covid-19 chose to keep the pools and gym closed. It died down but these two keep on and on about how it wouldn't cost that much and how it is illegal that we still have the pools closed after the governor allowed for pools to reopen. They are also telling other homeowners that we don't need a guard and homeowners can volunteer to monitor and that the HOA can open the pools for free.
I think the only part of the above that might be false is the part claiming keeping the pools closed is illegal. Since a judge has not ruled on whether the covenants trump Covid, I cannot say that what these two HOA members claim is false. In my opinion the two members would be protected by "qualified privilege" should the board or the HOA attorney threaten the two people with a defamation suit.

Posted By SashaE1 on 07/26/2020 1:51 PM
How can improper purpose be justified in a case where a denial of membership list would be legal to do?
The davis-stirling.com site quotes several statute sections on the subject of reviewing records, including membership lists. The purpose has to be "reasonably related to such person's interests as a member," from Corporations Code 8333 and similar in other statute sections. There is some non-statutory chatter saying this means "proper purpose." See:

https://www.davis-stirling.com/HOME/Right-to-Inspect-Records

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5230#axzz2CR2ljirY

https://www.davis-stirling.com/HOME/Statutes/Corp-Code-8330

https://www.davis-stirling.com/HOME/Statutes/Corp-Code-8333

In my opinion, a failure of this HOA to provide the membership is a violation of the law.
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