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Accell Advisor
The Anatomy of Stairs
Repair and Replacement
By Smith Architects

The

What Do Directors Need to Know?

By Matthew A. Gardner, Esq., Richardson Harman Ober PC

In most cases, it takes 10-20 years for the failure of a stair to be complete or obvious. With few exceptions, we have found the cause of failure to be consistent from stair to stair and community to community. In all cases the failure is due to exposure to rain and sun and accelerated by poor maintenance or poor design. Failure can result in loose stair treads, which can lead to falls or water intrusion and dry rotted wood. Replacing or repairing stairs is not always as simple as just rebuilding what you are replacing. Depending on the extent of the repair, you may be required to bring the stair into compliance with current code. Current code does not allow stairs to be as steep or narrow as they once were. Do not be surprised if the new stair will not fit in the same footprint of the old stair.
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Lets imagine that you are one of those dedicated individuals that care about your community and want to help it improve (the chances are very good if you are taking the time to read this). You realize that the best way to serve is to volunteer your time and effort to meet the needs of your homeowners association. You see the request from your association for nominations, suffer through a contentious campaign, and prevail to become an elected director on your associations board. After a brief celebration with our friends and neighbors, you realize something. Now what? It is not enough to have the drive and desire to be a director on your Board. You need the skills and the knowledge to make the right decisions and avoid the wrong ones. So where do you start? Governing Documents: The first step should be looking at the associations governing documents (Articles, CC&Rs, Bylaws and Rules). These documents are the essential elements of successful management. The CC&Rs will lay out the major maintenance responsibilities and duties of the association: assessments, collections, common area, etc. The Bylaws will give the board a roadmap on how to administer and govern consistent with its corporate duties: meetings, notice, minutes, elections, etc. The Rules will specify how the board can approach day-to-day living and enforcement of association authority: common area use, discipline, etc.
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The Anatomy of Stairs

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There are only a few material choices when building or replacing an exterior stair. The Architect can select wood, pre-fabricated concrete or steel. The materials can either be exposed to the weather or coated with a waterproof coating or deck topping. Here are some common definitions when dealing with stairs:

Stair Treads
The horizontal surface of the stairs that you step on. These can be made of pre-cast concrete (made at a factory), steel, wood or some type of solid (hopefully waterproof) deck coating. The treads are required to be uniform in depth and have a minimum depth of 11 inches to meet current code.

Stair Stringer
This is the structural beam (wood or steel) that runs parallel to the treads as they ascend. There are times when there is no visible stringer because it is either embedded in a wall or hidden with finish materials.

Stair Risers
The vertical space or surface at the back of each tread, which separates one tread from the next tread. Sometimes the riser is open meaning an object can pass through it. Sometimes the riser is closed. Closed risers comply with current building codes; open risers do not comply. The risers are to be consistent in height and have a current code limit of no less than 4 inches high and no greater than 7 inches high.

Stair Nosing
Where the riser intersects with the tread.

Handrail
The wood or steel tube or rod that ascends with the stairs. Handrails are required by code on both sides of an exterior stair. There are very few exceptions to this code requirement. They are required to be of a specific diameter, shape and distance from the wall or guardrail. They are required to extend past the top and bottom of the stair and to terminate in such a manner that a shirt or sleeve or bracelet will not get caught on the handrail.
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What Do Directors Need to Know?

to vendors suited directly to your communities needs, it also provides regular valuable tools and education. Everything from monthly luncheons dedicated to relevant topics facing associations, to links to most recent legislation, to mediation services, to workshops for new Boards to cover all of the above. A quick search can provide the answers to many of the questions facing new directors. Visit the website to find the latest at www.caionline.org. While the directors make the final decision, an informed decision should be based on acquiring the basic knowledge from qualified professionals: managers, attorneys, vendors, etc. Taking the time to learn more from the dedicated professionals serving your community could you time and headaches. Homeowners: Finally, new directors should keep in mind the most important aspect of their job; their neighbors. The most valuable assets of an Association are its homeowners. Directors who can utilize their homeowners while conducting business will find their duties easier to fulfill. Remember that the primary duty that directors must fulfill is taking action in the best interest of the association and its homeowners. The most that a new director can hope for is an informed and interested community. When directors engage their equally volunteer homeowners, they will find extremely valuable resources. Directors that ignore their homeowners will find themselves the object of suspicion and mistrust. Dont forget that the law requires associations to receive and consider input from the homeowners; requires financial and informative disclosures; and requires regular open board meetings to conduct business. Boards that do not meet these basic obligations will not only be in conflict with the law, but will also be in danger of misusing their homeowners willingness to participate in serving their community.

Every association will have different needs and duties that should be laid out in your documents, so it is not enough to know generally what information is located where. A director must be familiar with these documents before he or she can effectively carry out those duties. Davis-Stirling Act: The second major source of information will be California state law. For homeowners and association, that means the Civil Code beginning with Section 1350, otherwise known as the Davis-Stirling Act. This body of law will enhance, and in some cases substitute, the directors duties and authority under the governing documents. As an example, changes that affect every board and association would be in Senate Bill 563. One provision prohibits boards from making decisions by email, unless in cases of emergencies. Another requires additional notice for executive sessions. If you are not up on these changes, the boards authority to act or enforce could be called into question. The law is updated regularly, so a good director will find a way to stay on top of the changes. Sometimes that means making changes to their governing documents that no longer reflect the law. Sometimes it means finding someone who can help you navigate the changes. Industry Groups and Vendors: In essence, associations are their own communities with varied needs. To be a successful director, you need to be able to handle a wide variety of issues with competence. As volunteers, that means relying on professionals for input and guidance. Being a member of a group like Community Associations Institute (CAI) can be a valuable resource for information. Not only does membership give you access 3

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The Anatomy of Stairs

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Guardrail
The guardrail is designed to prevent falls from stairs of decks greater than 30 inches above the ground. Current code requires the guardrail to be no less than 42 inches high (it was 36 inches before) and designed to prevent a 4-inch diameter sphere from through it (it was 6 inches before). The current code also requires the guardrail to be strong enough to resist a 200-pound load along the top of the rail. We are not sure if this is based on science or the average weight of a college kid at a kegger party.

Quick Tips for Managing Stairs

Stairs with waterproof coating should be inspected annually to confirm the coating has not been compromised by furniture moving or misuse. Pre-case concrete should be checked with every painting (3 to 5 years depending on your climate) to confirm the treads are tight and the stringers are structurally sound. Be diligent in maintaining the paint where the pre-cast concrete treads touch the stringer and where there are exposed fasteners (bolts, screws, etc.).

Replacement or repair of treads typically does not require a building permit. With few exceptions we have found that repair or replacement of stair stringers requires building permits. Prior permit experience with stair replacement or repairs in one city does not mean that another city will permit the stairs the same way. Although the building code is a statewide code, the Building Official is each city is the final interpreter of the code. What worked in Irvine may not work in Huntington Beach.

Some stairs are so complicated and integral to the building structure that they cannot easily be replaced or repaired. Plan on using temporary stairs when it is a big job that will last more than a few days and when there is room to accommodate the temporary stairs. If there is insufficient room, you may need to look at billeting residents in local hotels.

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Email Dos and Donts for Community Associations

(by Mary M. Howell, Esq., Epsten Grinnell & Howell APC

With the advent of the 2012 amendments to the Davis-Stirling Common Interest Development Open Meeting Act (the Act) which restricted the use of emails by board members, unanswered questions have been flying. The statute does not address many of these, but the Brown Act (which regulates the meetings of public agencies, and upon which the Act is modeled) has the virtue of quite a bit of case and law commentary. It appears to answer many of the questions regarding Davis-Stirling, so even though the Brown Act does not, itself, apply to community association board meetings, the following discussion, based on the Brown Act, will be helpful. Question: Can a director email the rest of the Board purely to discuss a possible action the Board might take in the future? Its not on the agenda yet, and all that would happen is a discussion of the issue, not any action. Answer: Probably not. A lot depends on the extent to which the current prohibitions on email meetings are intended to mirror whats already in the Brown Act. The Davis-Stirling Act now defines a meeting as a congregation of the majority of the directors to hear, discuss or deliberate on some action that is within the boards purview. The language in the Brown Act defining meeting (Govt. Code 54952.2) is very similar. By analogy to the Brown Act, such communication would be prohibited, even if there isnt a vote on the issue. As one court put it (in connection with the Brown Act), It is clearly the public policy of this state that the proceedings of public agencies, and the conduct of the publics business, shall take place at an open meeting, and that the deliberative process by which decisions related to the publics business are made shall be conducted in full view of the public[T]he legislature has considerably broadened the [Brown Act] by passing amendments intended to bring the informal deliberative and fact-finding meetings within [the Brown Acts] scope Wolfe v. City of Fremont (2006) 144 CA4th 533, 541-542. Question: Can a director email the community association manager with directions? What if that email goes to all the other directors too? Answer: Generally, a director can email the manager with either directions or questions. And that email can be copied to the other directors. What is prohibited is using the manager as an intermediary, to obtain the concurrence of the other directors on a possible issue of association business, outside of a meeting. Thus, in Stockton Newspapers v. Redevelopment Agency (1985) 171 CA3d 95 (another Brown Act case), the court condemned the use of an intermediary (in this case, the attorney for the agency) to take a pollfor the purpose of obtaining a collective commitment or promise from the members on an issue to go before the board. Accordingly, if the direction given by the initial email is go ask the

others how they would vote on this issue, the email to the manager would violate the Davis-Stirling Act. But, if its simply, put this item on the agenda or heres how I want you to handle that situation, the email does NOT violate the Act. Question: Can a director email one or two, but less than all, the directors about anything that remotely concerns the association? Answer: It depends on what constitutes a majority of the Board. If the Board only has three members, such an email would violate the Act. If there are five directors, emailing one other director would be appropriate, but emailing two others would constitute a congregation of the majority of the Board. If there are seven directors, then one director could safely email two others. Note, however, that if such emails are part of a serial attempt to obtain the concurrence of all other board members (discussed below), the numbers dont matter: such a communication is not allowed. Question: Can one director individually email each of the other directors what they think about an issue the director proposes to bring up? Answer: As the above, would be permissible UNLESS the emails were part of a serial attempt to obtain a concurrence of the Board on an issue of association business. Part of the problem is drawing bright lines of distinction is that the permissibility of such communications depends on the subjective intent of the parties to the communication. A director might not start out with that goal in mind, but over time as responses come in, that director might sift to the polling mentality condemned in the Stockton Newspapers case discussed above. To avoid this, refrain at all time from forwarding threads about a subject, which contain other directors observations and thoughts. Question: Can one director individually email each of the other directors to discuss what a committee (say, the budget committee) has said during its deliberations? Answer: Yes, provided the communication is not a direct or indirect action leading to a concurrence of the other directors as to the subject matter of the communication. Question: Can a director instruct a manager by email to contact each of the other directors to get their input on a certain issue? Answer: No. As noted previously, the use of an agent or intermediary to take a poll or obtain a consensus on anything pertaining to the association circumvents the Act. Question: Thats dumb! By this logic, the Board cant even take a poll on whats a good meeting date, or where to hold the annual meeting. Can this really be the law? Answer: Dumb doesnt even begin to cover it. Bottom line is that whats prohibited is the use of emails, between a majority of the

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agreement or compromise among members, or advance the ultimate resolution of an issue, are all examples of communications which contribute to the development of a concurrence as to action to be taken by the legislative body. Accordingly, with response to items that have been placed on an agenda or that are likely to be placed upon an agenda, membersshould avoid serial communications of a substantive nature concerning such items. Note that the Wolfe case further provides that the Act can be violated by improper communications which lead to a consensus, whether intentional or not. When in doubt, dont. 3. A director can communicate with the manager to give instructions, and can receive from the manager information pertaining to association business. Such information might include committee reports, legal opinions, copies of correspondence, proposed minuteseven a meeting between the manager and director wherein the manager lobbies the individual directorbut generally such one-to-one communications are permissible unless and until they turn into an attempt to find out what other directors think on the issue in question. Wolfe v. City of Fremont, supra, at 546-547. A director can receive, and respond to, emails from nondirector homeowners (though the wise director will not respond unilaterally, but after permissible consultations with fellow directors and on behalf of the Board as a whole.) All directors can receive information from other directors so long as they do not deliberate collectively with respect to such information, outside of a meeting. Thus, a director can send an email to all other directors, even about association business, so long as this action is one way and not an invitation to open dialog about the issue. Presumably if a director sent out an email with an opinion or facts, and said DONT REPLY TO THIS EMAIL, (and there were no subsequent replies) then such communication would not violate the Act. Roberts v. City of Palmdale (1993) 5 Cal.4th 363. The directors can communicate regarding agendas and date, time and place of proposed meetings.

directors (serially or all at once) to develop a collective concurrence as to action to be taken on an item, which includes any exchange of facts, or substantive discussions which advance or clarify a members understanding of an issue, or facilitate an agreement or compromise amongst members, or advance the ultimate resolution of an issue. Ca. Department of Justice, The Brown Act, Open Meetings for Local Legislative Bodies (2003), page 12. On the good side, the same document states that the Attorney General does not think the prohibition against serial meetings would prevent an executive officer from planning upcoming meetings by discussing times, dates, and placement of matters on the agenda. It also appears that an executive officer may receive spontaneous input from any of the board members with respect to these other matters so long as a quorum is not involved. Ibid. Question: So exactly what can a director legally do in terms of emails to other directors? Answer: So far, as is clear today, and by analogy to the Brown Act: 1. The directors can meet/communicate via email when there is an emergency, and the individual directors have consented, in writing (including email), to such an email meeting. The consents must be filed with the minutes. Civ. Code Section 1363.05(j)(2)(B). An individual director may communicate (back and forth) with another director or directors, even about association business, PROVIDED the total number of directors involved does not exceed a majority of the board, and FURTHER PROVIDED that the communication isnt part of a serial attempt to obtain board concurrence on an issue, outside of a meeting. 84 Ops. Cal. Atty. Gen. 39 (2001) A serial meeting is a series of communications, each of which involves less than a quorum of the legislative body, but which taken as a whole involves a majority of the boards members. As one commentator put it, [o]nce serial communications are found to exist, it must be determined whether the communications were used to develop a concurrence as to action to be taken. If the serial communications were not used to develop a concurrence as to action to be taken, the serial communications do not constitute a meeting and the Act is not applicable Note, however, the Attorney General goes on to say, conversations which advance or clarify a members understanding of an issue, or facilitate an

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We hope the legislature clarifies some of these issues, but the new Davis-Stirling simply recycles this content. If you see the dilemma, and believe volunteerism will be impaired as a result of these prohibitions, contact your legislators, and request some amendments to allow more communication between directors, or at least to clarify what can and cannot be handled by email.