Notice and Delivery in the New Davis-Stirling Act

so let’s start with the delivery of
documents to the association currently there’s nothing in the code at
all about how one would deliver documents to
the Association under the new code section 4035 if documents must be delivered to the
association they can be delivered to the person
designated in the annual policy statement I’ll come
back to that in a moment that designation is going to be who that
person is who can receive the notice or it can be the default which is the
present president or Secretary just so we’re
clear this is different than what you do with the Secretary of State saying
you’re entitled to accept service on behalf of the association this is a different collateral notice it
has to go out in the year-end documents in one of the two packages in this goes
into the annual policy statement and this statement is very
clear I so-and-so managing agent for such and
such will receive all documentation the way
for the association the way the statute as written is if you don’t do that it defaults to
the president or secretary until the next annual
change my reading of those words is are you
kidding me for a year your board members are going to be getting these documents
instead of coming to the managing agent so it’s on the checklist you’ll just at it it is a new thing but its
a minor thing you miss it it’s not a big deal how is
information going to come to the association well is gonna come by email fax or if the
association’s consented to email or personal delivery and personal
delivery is the association will consent to
personal delivery and that can be for you on-site managers on site location or to
the association’s managing agent to the management office or they can designate officers of the Association as well if the association says we’re going
except personal delivery its your obligation to provide the
receipt for the document the homeowner doesn’t have to make a demand
for that document so I can just see somebody saying you
saying no they didn’t deliver that and they say they
did or worse yet they’re gonna say know I have this and I delivered it
but didn’t get a receipt they violated the statute being small claims court $500 it’s gonna be one of those things so it’s easy to do a what documents come
to the association corporate documents demands for IDR
demands for ADR petitions for remove all the fun
stuff that a the boards receive information on I
personally think those things really should go to the association’s community manager
because you’re in charge of the business the association so the big-ticket item on that is designate whether you want to do it and
make sure that you designate who the person is and remember if the association is going
to accept communications via email there has to be somebody who’s going to be
committed to reviewing those email and able to take action items on
those email my concern is that we all have
spam filters and depending on how crazy are
homeowners are the spam filter set really high or it’s set
really low and so I am concerned that if you’re
going to accept notice via email which you know I’m a big fan of email every you know we send at least everything that we can via email that you will have to have systems in
place to check your spam filters to make certain that messages that you actually want
to receive or retrieve will be coming to you and so one of the things you’ll be working with your IT people to figure out how to do that most effectively distribution and delivery of documents and
notice there’s no distinction in the statute
for individual and general delivery currently individual and general those
are the phrases that you’re going to be hearing
a lot today under 1350.7 all documents that are currently required to be disclosed to the association could go out anyway that a communication can get from
one place to the other personal delivery First Class Mail email
fax publication in a widely Association
circulated communication newsletters websites all those things
will constitute delivery of information to those different medias and if your association is large enough you’ll would have access to do your distributions through broadcast television we have a
couple of our clients that are big enough to take advantage of that and that’s
pretty cool put it on the TV and it loops all day through meeting notices and everything else so and what is individual delivery or notice what exactly does that mean
well the new law which is 4040 of the code and they’re actually in how the statute was
rewritten the parts the code and the numbering are
very specific to certain topics and subject matter so here
we have things sorted stuck in in other places Cyrus told me
to say to each of you you can just prepare a little
outline of the subject matters and put the code numbers
that are in those subject matters together on the
list and it’ll make it easier for reference I think you should ask him for the document he prepared but that’s up to you I think it really will be helpful
because you know what things are more difficult for you to understand and I think that’s really
the point is you group them together it might be easier for you to have the
comfort level anyways 4040 says if documents must be delivered by
individual notice the delivery must be by First Class Mail certified Express Mail for overnight
delivery all addressed to the last shown address in the Association records so this is
a really big thing for us it’s a big thing for us because of Association lien services
when you do non-judicial foreclosure you get your all right or you have to
start over again there’s no like it was sorta right it
was close to right a petition the court not care about the
middle initial was missing and when it comes to where do we find the homeowner you have the right and the
statute said and says you get to rely on the address given to you by the homeowner when you Susie and Tom extra-special manager tries to go find
out where that homeowner is really living you create a
duty which you don’t have by statute and once
you create that duty it can travel with you so yes Suzie did
move to this place but then she moved again and you didn’t need to send out a
notice you didn’t follow her to the new place you sent it to the old
address not the one she gave you but the one you found and all the additional notices that were
supposed to go to her never went to her but they weren’t
returned to you either they went to this big vat of wasteland of mail and if that homeowner says you did not utilize the address that I gave you
there could be defective notice so we all wanna do the
extra when it comes to these addresses it’s up
to the homeowner if they don’t ever give you an address for some reason through escrow maybe there was no escrow maybe there was a transfer inter-familial transfer of property and you don’t have the address you tried
to get a hold the home they pay their assessments but they they don’t have
a check they send cashiers they wire the money to the management
company whatever system that you have in place and if you don’t have that address you
actually mail the envelope to the Association at the mailing address in which the
association said they’re gonna accept mail so it’s either your management
office or if it’s an on-site recreation room that has an on-site managers office in the mail goes there whatever that
address is you mail that notice that notice doesn’t get opened obviously and you just keep it as part of the
corporate record because the code says you can do that and it allows you to meet your
compliance obligations so I like that as well so this is
individual that’s what I just described it’s to one homeowner it’s not to the entire membership now you think
since they just rewrote the Davis Stirling Act they could have actually
gotten that correct but there are four exceptions to this
and I will talk about them in point them out but in
all fairness the new Davis Stirling Act actually points out for you and says even though this is a general
notice item going to all the members individual notice is
required because we’re gonna find in the second
that individual notice is more difficult to meet than
general delivery notice so general delivery notice is clearly when we’re trying to send out
documentation to all the members 4045 the code says if the document can
go out general delivery then deliver it must be by any method of individual so it qualifies
if you send out general delivery in a manner that
satisfies individual in a billing statement
newsletter or other document using one of the
methods that we just talked about or I will be talking about posting printed documentation in a
prominent location accessible not that it’s seen but could be
seen by all members if and here to me is the second biggest thing in the Davis
Stirling Act if the location is designated for general notices in the annual policy statement so remember
there are two statements the financial ones the annual policy statement
and in the annual policy statement you’re
going to say on the stick two feet west of the entrance of the clubhouse or right near the pool or at the corner
of such and such and such we will post general notices and if you
say that in this annual policy statement you can do that well there are a lot of
general notices that can go out that way not the least of which my personal
favorite which is sending out rule changes to the
members for their comment can go out by general delivery which means you get to
stick it on a pole you can tell the homeowners this is what
it is three of them will see it one of them
will read it and I’m assuming it’s gonna make our lives
a lot better so you do not want to miss the opportunity to take advantage of this during the the
course of the years I think it’s just going to be a really good tool for for you and our boards of course any member can actually ask for individual delivery even though the stat sheet says it can
be general delivery and I don’t know how easy that’s going
to be to track but if they ask you have to
send it to them individual at the association’s cost and
expense electronic delivery there’s no explicit provisions currently in the a David Stirling Act for whether
electronic delivery satisfies a writing when it says you have
to do this in writing and you have to sent out a written communication in the new Davis Stirling Act it says
that electronic communications are do constitute a writing as defined
under the statute so for those of you that haven’t had
to deal with that issue before yes Mark thank you if you haven’t had to it’s not holding okay let me know if it moves again thank
you if you have not dealt with that issue
before it it spirals out of control with the
homeowner saying that they got notice or the homeowners saying we did not get notice we never said we could communicate with the Board of Directors via email they still have to consent to electronic transmissions I’m thinking this is a
great year to ask them again for their email
addresses when you send out your notices maybe you send them an email if you have
their email addresses and just say please hit reply in that will constitute your approval for us to communicate with you via email so the new section 4055 says that if the member consents to electronic delivery you can do it for all of your general Communications and
if the homeowner says that they will accept individual
you can do it for individual as well but you have to be
able to reproduce the content of that electronic communication in a printable
form and we’ve seen that in other statutes that you
have to be able to you I maintain a record in a printable form
so what this means is that texts are not allowed although those that are more tech savvy than others
know that you can easily convert that text and put it into a document but
because by its construction in its nature it’s not easily printable it’s not going to be
a least for this round going to be allowed you want to be able
to just be able to keep keep it to retain it and to be able to use it as proof if the Association needs to actually have proof so general individual for general you can go anyway individual plus my favorite the posting and elektronic
if the member says yes you can communicate with me electronically yes Sue Sue is speaking not sure what she’s saying I think the answer is yes but I have to
qualify it by saying I think because it doesn’t we looked at the
legislative history on it we did not see anything that specifically said you can
do it the reason that we think that it will
constitute general notice is assuming a homeowner says that
they’ll accept information electronically is because you can use broadcast media
just like the televisions and that is not as easily identifiable as a website is of a
moment in time and so the we’re just assuming that yes
the more difficult is allowed then the less difficult should
be but we do believe that you do have to still get that
consent for electronic communication unfortunately legislature is just not
catching up as quickly as we’d like them to do to be with technology but hopefully as
it moves along

Norman Bunn

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