By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

That's not the quote, is it? No that's right, it's not. The quote is "With great power comes great responsibility." Notwithstanding, we discussed the immunity provisions granted by the California Civil Code with respect to a volunteer director's conduct that might be considered a "tort." So what the legislature gives, it also gives duties. That's not the quote either. It's something about what the legislature gives it also takes away. My right hand does not know what the left is doing, either, by the way. But I digress. Are you still reading this?

The same Article of the Act that provides immunity for such volunteer directors also sets forth affirmative duties that all HOAs must follow. They can give themselves "more stringent" duties, but at a minimum, they must: 1. review operating accounts quarterly; 2. review reconciliation accounts of association reserves; 3. quarterly review reserve revenue and expenses; 4. review account statements from financial institutions in which reserve funds are placed; and 5. every quarter review income and expenses for operations and reserve accounts.

There is a subset of requirements regarding reserve accounts, in place to protect the maintenance of the complex and its maintenance areas. Who can sign checks, how much has to be in the reserve, what it can be used for. But there is another affirmative duty that dovetails into the theme of our last two blog entries and indeed, a lot of these entries regarding landlords in general. That is the duty to inspect.

"At least once every three years" the HOA board is to have the premises inspected, visually, in a reasonably competent and diligent manner. This is in conjunction with keeping the right amount of funds in the reserve accounts. But included in all of these inspections are requirements of identifying costs of repairs, for the "repair, replacement, restoration, or maintenance" of any identified repair needs.

In essence, the HOA is required to document what needs work, what arguably could later cause injury or property damage, how much it will cost to fix, and even estimate how much longer such conditions will exist (useful life). This would be great evidence in a lawsuit. Sounds like a subpoena for documents to me. So if folks were hoping for the protections of immunity without corresponding responsibilities, they might have been reminded of another quote: "Be careful what you wish for, you just might get it." That quote is right. I'm pretty sure of it.

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