Wishing and Hoping Won’t Make It So: Colyear II and its Impacts on Older Planned Communities

Of Counsel

Last year gave us an interesting case in the form of the second Colyear case, Colyear v. Rolling Hills Comm. Ass’n. of Rancho Palos Verdes (2024) 100 Cal.App.5th 110. And this one resulted in a major loss to the Association—rejecting the association’s attempt to enforce a tree-trimming covenant and the resultant $1.3 million dollars in attorneys fees awarded to the prevailing homeowner. The interesting part of the case, though, is what is has to say on the limits of a developer’s ability to create a ‘master planned community,’ and the disastrous effects of careless drafting in the annexation process.

In a nutshell, until around 1980, developers seeking to subdivide and sell a large, planned community generally recorded an initial declaration of CC&Rs, describing some (or all, in some cases) of the property envisioned to constitute the future, built-out community. Then, new tracts were made subject to a second set of CC&Rs, which might or might not incorporate by reference the original declaration. Today, the developer generally records a “Master Declaration,” which (1) identifies all the property which may become subject to the Master Declaration in the future, and (2) provides for the “annexation” of portions of that property, over time, to the Master Declaration (along with possible additional restrictions tailored to the newer properties), thus assuring that the Master Declaration governs the added tracts. But, Rolling Hills Community Association (“Rolling Hills”) was created in the mid-1930s, and therein lies the root of the problem.

When the developer began construction in 1936 it recorded a declaration of restrictions (“Declaration 150” [Original Declaration”]) which contained, amongst other provisions, a tree-trimming requirement. This Original Declaration also provided that other tracts would be subject to the provisions of “a Declaration of Restrictions” [emphasis added]. The Original Declaration did NOT state that the annexed properties would be subject to the Original Declaration. Neither did the Original Declaration provide the legal description of properties which were to be annexed. Some of the annexed tracts did have a tree-trimming covenant, some (including Colyear’s) did NOT contain such a covenant. To further confuse matters, some of the annexation declarations WITH the covenant were recorded after a series of annexation declarations that did NOT contain the covenant.

The Association grappled with the inconsistencies between the Original Declaration, and the various declarations of the annexed tracts, for 60 years. It was generally apparent that entirety of the Original Declaration (including the tree-trimming covenant) might not be enforceable against some, but not all, the annexed tracts. First, the Original Declaration did not identify those tracts as subject to its terms, and second, some of the declarations of annexation did not specifically “incorporate by reference” all the terms and conditions in the Original Declaration. There were tantalizing references in the Original Declaration suggesting it was intended to be the kind of “master declaration” we see today, such as describing the document as “a General Plan” for development of Rolling Hills, and a statement that the Association had the power to enforce provisions of those subsequent tracts’ CC&Rs, but the Original Declaration did not expressly identify Colyear’s tract, nor did Colyear’s declaration expressly incorporate by reference the Original Declaration. And that meant the tree trimming covenant could not be enforced against Colyear’s lot.

The Association tried to argue that Colyear must have known about the Original Declaration, since his declaration referred to the Original Declaration (“constructive notice.”) The Court was having none of it. First, Colyear’s title report did not list the Original Declaration as binding his lot. And, although Colyear’s declaration mentioned the Original Declaration, it did not “expressly incorporate by reference the restrictions found in the [Original Declaration.]” Other annexed tracts DID expressly incorporate by reference the provisions of the Original Declaration, just not Colyear’s tract CC&Rs. This in turn meant the portions of the Original Declaration enforceable against the various tracts changed depending on the exact language of the annexation declarations. The appellate court quoted the trial court with approval: “…To the extent a crazy quilt exists, it is a byproduct of the method by which [the developer] and [the Association] expanded this community.’ Ibid. at 124.

What should the Association have done to make the tree-trimming covenant effective against Colyear’s lot, avoiding the “crazy quilt” situation where some lots are covered by particular provisions, and others are not? It could have sought either to amend the Original Declaration to specifically add the additional lots, or to amend Colyear’s tract declaration to incorporate the tree trimming language from the Original Declaration. The record indicates the association considered doing this, until it concluded such an amendment was not likely to pass, or at least, not without considerable effort and cost. What the association DID do was to issue several “resolutions” addressing the issue, some of which simply asserted the tree-trimming provision DID apply to the annexed tracts, despite a well-documented record of internal ‘back and forth’ on whether the Original Declaration’s tree trimming covenant did apply to the annexed tract. As the court noted, however, a resolution is not a CC&R amendment.

Takeaways?

If your association was built before 1980 or so, and includes tracts annexed after the original declaration was recorded, look over the annexation declarations to make sure that all relevant covenants (for example, architectural covenants, noise control, view protections) are either spelled out explicitly in all tracts, or incorporated by reference—specifically—restrictions set forth in other declarations.
Before enforcing a covenant against an owner in an annexed tract, make sure the covenant you seek to enforce unquestionably applies to the lot in question. It’s helpful to look over a title report for a lot in the tract in question, if an owner is willing to share it.
If you have doubts after reviewing the governing documents as to the applicability of the covenant in question, consider whether to attempt a CC&R amendment, to avoid the “crazy quilt” result in the Colyear case.
It’s unlikely that adopting a rule requiring tree trimming on all lots would have sufficed in this case, because of the differences in the CC&R language in the various tracts. As we know, a rule must be consistent with the CC&Rs. And while a rule might flesh out vague maintenance guidelines (and thus be appropriate), given the notoriety of these inconsistencies in the Rancho Palos Verdes community, an owner in one of the tracts without such a requirement could easily argue that had the developer intended to encumber HIS lot with such a restriction, it could easily have done so, but did not—an inference that the developer intended NO tree trimming covenant.

Understanding the Fees and Costs of Superior Court Litigation

By Joe Sammartino, Esq.

Shareholder | Litigation Dept. Co-Chair

When a homeowners’ association ends up in court, it can be a costly process. Sometimes associations go to court to protect their rights and the rights of the community. Examples of these lawsuits are typically to enforce the governing documents or to enforce other contractual rights. Other times, associations are brought into court because they have been sued. Regardless of the merits of the case and regardless of which side of a case the association is on (plaintiff or defendant), fees and costs can add up very quickly.

The Process of Litigation

Litigation refers to the process of taking legal action in court. When an HOA files a lawsuit, it is essentially asking the court to enforce a rule or decision that the homeowner has violated. This can include things like unpaid dues, violations of the CC&Rs (such as illegal modifications to property or nuisances), or failure to follow community guidelines.

Litigation typically starts when the HOA files a complaint in Superior Court, the court that handles major civil cases in California. Before going to court, the HOA usually sends notices or warnings to the homeowner, letting them know that they are violating the rules. If an association (or member) intends to file a lawsuit solely for declaratory or injunctive relief (asking the court to decide the rights and duties of the parties and/or seeking an injunction to compel the defendant to do, or refrain from doing, something) the potential plaintiff must first offer formal Alternative Dispute Resolution (“ADR”) which typically takes the form of mediation. If the homeowner doesn’t comply (or refuses to participate in ADR), the HOA may move forward with a lawsuit.

Costs Involved in Litigation

There are several categories of costs involved when an association decides to pursue litigation. These can include:

Court Fees: To start a lawsuit in Superior Court, the plaintiff must pay a filing fee. This fee varies depending on the type of case and the amount of money involved, but Superior Court cases are typically around $500 or a little more. Each defendant in the case will owe a similar amount of money to the court as a first appearance fee. After the first appearance, each filing with the court – briefs, case management statements, ex parte applications, by way of a few of the more common examples – will have a filing fee, ranging from $20 to $100 or more.

Attorneys’ Fees: Probably the single biggest cost for an association involved in litigation will be attorneys’ fees. Whether or the plaintiff or defense side of a case, an association will probably need to retain a lawyer to represent it in court; the exceptions are small claims cases (attorneys are not allowed) and cases in which the association is being sued and insurance defense counsel is provided by the association’s insurance company. The lawyers’ job includes preparing documents, attending court hearings, propounding and responding to written discovery, taking depositions, attending mediation, negotiating settlements, and making legal arguments on behalf of the association. Attorneys typically charge by the hour, and hourly rates depend on the lawyer’s experience, the complexity of the case, and the location where the association is located. In California, attorneys typically charge between $400 and $500 per hour or more.

While litigation can be expensive, under the Davis-Stirling Common Interest Development Act, in lawsuits involving the enforcement of governing documents, the winning party may recover its attorneys’ fees. If the association wins a case against an owner to force compliance with a rule, the association can ask the court for its legal fees. On the flip side, if the owner wins, they may be able to recover their legal fees from the association. Attorney’s fees incurred in Alternative Dispute Resolution can be included in the fees awarded even though it is typically before a lawsuit is formally filed.

In lawsuits that do not involve the enforcement of the governing documents, the general rule is that each side pays its own attorneys’ fees. There are a few exceptions to this rule, including breach of contract lawsuits in which the contract has an attorneys’ fees provision. Another exception are causes of action that have a specific right to attorneys’ fees under California law, such as some employment claims and bad faith lawsuits against insurance companies.

The possibility of recovering – or not recovering – attorneys’ fees under is an important factor for parties to consider. It provides an incentive for owners to follow the rules, as they could end up paying the association’s legal fees. It also gives associations the ability to recover some of their costs if they need to go to court to enforce the rules. Owners should be aware that they could be held responsible for paying legal fees if they are found to be in the wrong. This can be a very significant financial burden, so it is important all parties understand their rights and responsibilities under the law.

Discovery Costs: Discovery is the process whereby both parties investigate the case as completely as possible on their own, and also request and exchange information from each other before trial. This is done by asking written questions that are answered under penalty of perjury, requesting documents, taking depositions (questions asked orally that are answered under oath), and investigating and gathering evidence. Discovery can be a time-consuming and expensive part of litigation, especially if there are a lot of documents to review or witnesses to interview. The HOA may also need to hire experts or investigators to assist with the case, adding to the overall cost.

Other Related Expenses: In addition to filing fees, there likely will be other costs, such as charges for having subpoenas served on third parties, copying costs for records that are produced, and documents served personally on other parties. There also will be court reporter fees both for court hearings and for depositions. These costs quickly add up, especially if the case is lengthy or complicated.

Appeals: If either party is unhappy with the court or jury’s decision, they may appeal. Appeals can be costly because they involve additional legal work, including preparing legal briefs and attending appellate court hearings.

Considerations Before Litigating

Because of the potential costs involved, associations should carefully consider whether litigation is the best option. Pursuing a court action should typically be a last resort after most, if not all, other attempts to resolve the issue have failed, including sending letters, holding hearings, IDR and ADR. If a dispute does go to court, even if the association wins, the process can still be expensive and time-consuming, even if attorneys’ fees are recoverable. Lawsuits can be divisive within associations because the parties live (owners) and work (management) near each other. Additionally, witnesses and others who may become tangentially involved may feel unintended awkwardness or pressures.

It is not feasible to predict with any certainty how much a lawsuit will cost because it depends largely on how the other side prosecutes (or defends) the lawsuit. Some litigants and their attorneys can be very aggressive and run up costs.

Conclusion

Litigating in Superior Court can be a costly process for associations. Some of that cost may be offset through the possible recovery of attorneys’ fees. To minimize costs, both associations and owners should carefully weigh the costs and benefits of pursuing litigation and explore all options for resolving disputes before going to court. By understanding the costs and fees as well as the process involved, everyone can make more-informed decisions about how to handle disputes in their communities.

The Right to be Heard: A Timely Reminder of Civil Code Section 4515

By Karyn A. Larko, Esq.
Senior Attorney

On January 1, 2023, amended California Civil Code section 4515 went into effect. The intent of section 4515 is to ensure that owners and residents of common interest developments can peacefully assemble within the community and freely communicate with others regarding matters related to the association and common interest development living, as well as other social, political, and educational purposes (“Matters of Public Interest”).

Specifically, section 4515 gives members and residents of an association the following rights:

The right to peacefully assemble or meet with other members, residents, and invitees or guests to discuss during reasonable hours and in a reasonable manner Matters of Public Interest, including matters relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes;
The right to invite public officials, candidates for public office, and representatives of homeowner organizations to meet with members, residents, and their invitees or guests, and speak on Matters of Public Interest;
The right to use the common area, including any meeting room or clubhouse when available, or, with the consent of the owner, the owner’s lot or unit, for an assembly or meeting related to Matters of Public Interest. Of note, an association cannot require members and residents to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy in exchange for being able to use the common area for the assemblies and meetings listed in items 1 through 3 of this article;
The right to canvass and petition the members, the residents and board members regarding Matters of Public Interest, at reasonable hours and in a reasonable manner;
The right to distribute or circulate, without association permission, information on Matters of Public Interest at reasonable hours and in a reasonable manner; and
The right to use social media or other online resources to discuss any Matters of Public Interest even if the content is critical of the association or its governance.

Civil Code section 4515 does not require an association to allow members and residents to display signs, posters, banners, or flags in the common area, or use the association’s website to express their opinions on Matters of Public Interest. Nor does this law require an association to provide members and residents with social media or other online platforms where they can express their opinions on Matters of Public Interest.

It is important to note that if an association’s governing documents attempt to prohibit members and residents from exercising their rights under Civil Code section 4515, or if an association otherwise attempts to hinder members and residents from exercising these rights, the association could face liability, including a civil penalty of up to $500 for each violation.

^{PRACTICE TIPS:}

Establish a system for reserving the clubhouse, meeting room or other areas suitable for meetings, and keep track of when these areas are reserved so you can promptly respond to requests to use these areas.
If the association generally requires members and residents to pay a fee, pay a deposit or obtain liability insurance to reserve the use of common area, include on the reservation form an area for the reserving party to identify the planned use of the common area, so you know whether these requirements must be waived.
Never retaliate against a member or resident for exercising their rights under Civil Code section 4515, even if they were unfairly critical of the board or management.

New Year, New HOA Resolutions!

Kickstart the year with new goals and planning for a successful community management.

By Jon H. Epsten, Esq.

Shareholder | Litigation Department, Co-Chair

At our annual firm Legal Symposium, I was asked by a board member “what they could do differently in 2025 to make their life as a board member just a little easier?” So, I decided to place the answer to her question in the form of New Year’s resolutions. Get started early in the year with these Resolutions and hopefully 2025 will be a better year for both you and your association.

Continue reading New Year, New HOA Resolutions! →

Updates on The Corporate Transparency Act as of 12/18/2024

By Kieran J. Purcell, Esq.

*This article is an update to the previous versions:

U.S. DISTRICT COURT DENIES GOVERNMENT’S MOTION TO STAY PRELIMINARY INJUNCTION OF THE CORPORATE TRANSPARENCY ACT

On December 17, 2024, the U.S. District Court for the Eastern District of Texas denied the Government’s Motion to Stay Preliminary Injunction Pending Appeal of the December 3, 2024 decision in Texas Top Cop Shop, Inc., et al. v. Garland, et al. which imposed a preliminary nationwide injunction against the Corporate Transparency Act (Act).

In making its decision, the Court noted when Congress enacted the Act almost five years ago, the Act had no implementation date, so there is no compelling need to lift the stay, especially where the Court has found the statute to likely be unconstitutional.

The Court also cited FinCEN’s recent website alert announcing a stay on the January 1, 2025, beneficial ownership information (“BOI”) reporting deadline pending determination of the appeal. Due to the widespread media coverage of FINCEN’s alert, the Court concluded lifting the stay would add to, not alleviate, public confusion about the Act.

In conclusion, the Court’s decision means the December 3, 2024 injunction remains in effect until the Fifth Circuit Court of Appeal rules otherwise. However, it is important to remember the order is still a preliminary injunction only. While it temporarily pauses enforcement of the Act on a nationwide basis, enforcement could resume if the injunction is later reversed.

For additional information and updates on the Texas Top Cop Shop case appeal and its applicability to the Act visit www.caionline.org/CTA.

Civil Code § 799.12. Mobilehomes; Covenants Restricting Solar Energy Systems Are Void

California Civil Code > Civil Code §799.12. Mobilehomes; Covenants Restricting Solar Energy Systems Are Void

(a) Any covenant, restriction, or condition contained in any rental agreement or other instrument affecting the tenancy of a homeowner or resident in a subdivision, cooperative, or condominium for mobilehomes, or resident-owned mobilehome park that effectively prohibits or restricts the installation or use of a solar energy system on the mobilehome or the site, lot, or space on which the mobilehome is located is void and unenforceable.

(b) Ownership or management shall not prohibit or restrict a homeowner or resident from installing or using a solar energy system on a mobilehome or the site, lot, or space on which the mobilehome is located. Ownership or management shall not do any of the following:

(1) Charge any fee to a homeowner or resident in connection with the installation or use of a solar energy system.

(2) Require a homeowner or resident to use a specific solar installation contractor or solar energy system or product.

(3) Claim or receive any rebate, credit, or commission in connection with a homeowner’s or resident’s installation or use of a solar energy system.

(c) This section does not apply to imposition of reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.

(d) (1) For purposes of this section, “solar energy system” has the same meaning as defined in paragraphs (1) and (2) of subdivision (a) of Section 801.5.

(2) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities, consistent with Section 65850.5 of the Government Code.

(3) Solar energy systems and solar collectors used for heating water shall be certified by an accredited listing agency as defined in the California Plumbing and Mechanical Codes.

(4) A solar energy system for producing electricity shall also meet all applicable safety and performance standards established by the California Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, if applicable, rules of the Public Utilities Commission regarding safety and reliability.

(e) This section shall not apply to a master-meter park. “Master-meter park” as used in this section means “master-meter customer” as used in Section 739.5 of the Public Utilities Code.

(f) Any entity that willfully violates this section shall be liable to the homeowner, resident, or other party for actual damages occasioned thereby, and shall pay a civil penalty to the homeowner, resident, or other party in an amount not to exceed two thousand dollars ($2,000).

(g) In any action to enforce compliance with this section, the prevailing party shall be awarded reasonable attorney’s fees. [2024]

VICTORIA R. MINOR

Victoria R. Minor

Attorney

Practice Areas

Community Association Counsel

Legal Assistant: Jennifer Westlund

Contact
Attorney

Education

California Western School of Law
University of North Dakota

Affiliations and Memberships

San Diego County Bar Association

Overview

Victoria is a member of the firm’s transactional team. She handles matters involving governing document compliance and interpretation, including drafting letters to homeowners regarding governing document violations, assisting Boards in drafting special and emergency assessments, attending board meetings, executive committee sessions and hearings, and researching relevant statutes, codes, and case law to help Associations best manage their communities by the law.

Victoria is committed to providing the best experience for all clients and ensuring that their needs are met. Her goal is to help clients create healthy environments within their communities and assist associations by proactively and efficiently advising clients on any potential issues to hopefully avoid litigation. Victoria places a strong emphasis on guiding clients on best practices for managing their communities.

As a law clerk, she assisted attorneys with representing community associations throughout San Diego, Orange, and Riverside County. This opportunity allowed her to gain experience in interpreting and enforcing governing documents and in assisting with corporate governance.

While attending law school, she served as Vice President of Sports of the CWSL Entertainment and Sports Law Society. She also participated in the school-wide Appellate Oral Advocacy Competition, winning first place.

Victoria received the Academic Excellence award for her outstanding course performance in California Evidence and Legal Skills I. She was also a recipient of the Distinguished Advocate Award and was named to the Dean’s Honor List.

During her undergraduate studies, Victoria competed in Division I Women’s Softball. She was named to the President’s Honor Roll and the Dean’s List during her Freshman through Junior year. Victoria was awarded the Big Sky Conference All-Academic Award as a Freshman and Sophomore and was named to the Summit League Commissioner’s Academic List as a Junior and Senior. Victoria also served as Vice President of the UND Pre-Law Society during her Sophomore through Senior year.

Honors & Awards

Academic Excellence, California Western School of Law

Contact Attorney

Managing Shareholder Kieran J. Purcell Selected as ‘Leader in the Law’ for 2024

Epsten, APC’s Managing Shareholder Kieran J. Purcell, Esq., CCAL, has been awarded as a 2024 Leader in the Law by the San Diego Business Journal. This special report celebrates and honors influential leaders by acknowledging their contributions and commitment. Kieran’s work on behalf of community associations includes providing advice on all types of corporate matters including litigation, interpretation and enforcement of governing documents and reconstruction issues.

Kieran served three terms on the Board of Directors of the San Diego Chapter of the Community Associations Institute (CAI), where he served as its President, co-chaired the National Seminar Committee, and co-chaired the Golf & Tennis Charity Classic. Kieran is a former delegate for the San Diego Chapter’s Legislative Support Committee (LSC), a former Legislative Co-Chair for the California Legislative Action Committee (CLAC), and a former CLAC Chair. He currently serves as an Emeritus Delegate for CLAC. Kieran is a four-time recipient of the San Diego Chapter’s President’s Award, and a recipient of the Samuel L. Dolnick Lifetime Achievement Award. In 2023, he was recognized with the San Diego Chapter’s Legacy Award. He is a fellow of the College of Community Association Lawyers (CCAL).

Issues for Inspectors of Election Checklist

Issues for Inspectors of Election to Consider

Checklist

Front of envelope – not signed in upper left corner

Accept Reject

Front of envelope – signed but other identifying information not filled in

Accept Reject

Front of envelope -ballot voted by proxy, but envelope not signed by proxy holder (owner’s signature or no signature)

Accept Reject

Front of envelope – no identifying information or signature

Accept Reject

Front of envelope – name is different than the name on Association’s owners list

Accept Reject Female and first name is the same
(possible change in marital status)

Accept Reject Unit owned by corporation

Accept Reject Unit owned by trust (trustee)

Accept Reject Alleged Power of Attorney

Accept Reject None of the above – name just does not match

Outer envelope has been opened

Accept Reject Apparently opened after receipt by
management/Inspectors of Election

Accept Reject Apparently just not sealed by voting owner

Outer envelope sealed, but inner envelope not sealed

Accept Reject

Some form of ballot other than Official Ballot put into double envelopes (e.g., directions to proxy holder, handwritten ballot, other) ^[1]

Accept Reject

Ballots received not in double envelope system – only in one envelope

Accept Reject Placed only in outer envelope

Accept Reject Placed only in inner envelope

Validity of ballot if placed in ballot box but not in envelope(s)
1. Accept Reject Signed (or identity of voter can be determined)
2. Accept Reject Unsigned (identity of voter cannot be determined)

Ballot delivered to other than the meeting or the officially designated location on envelope

Accept Reject

Two ballots received from same unit

Accept Reject Earliest dated / First received

Accept Reject Owner vote over proxy holder vote

Ballots received after official close of the polls

Accept Reject

Validity of ballot if faxed

Accept Reject

If owner wants to revoke original ballot and re-vote, can they revoke ballot already cast?^[2]

Accept Reject Allow Revocation and re-vote

Accept Reject Disallow revocation and re-vote

If allowed to re-vote, what is the latest point in time when this can occur?

When will polls officially close? (If not previously determined)

PROXY ISSUES (IF USED)

Front of envelope – ballot voted by proxy, but not signed by proxy holder (owner’s signature or no signature)

Accept Reject

Validity/priority if two proxies received from same unit

Accept Reject Earliest Dated

Accept Reject Latest Dated

Date:

Inspector of Election

Date:

Inspector of Election

Date:

Inspector of Election

[1] The Association’s election rules may prohibit counting unofficial ballots. Please confirm with Association’s election rules.

[2] The Association’s election rules may prohibit revoking or changing an original ballot. Please confirm with Association’s election rules.

You’ve Been Served, Lawsuits Checklist

What To Do When Your Association And/Or Board of Directors is Served With A Lawsuit

Checklist

Note Service Date, Time and on Whom

Make a written note immediately of the name of the person who was served with the papers, the time and the date. Your attorneys and insurance carrier will need to know this information, as you have only 30 days in which to file a response in State Court and 21 days if the lawsuit is in Federal Court.

Act Promptly

Do not take a lawsuit lightly. Do not put the legal papers in a drawer or someone’s mail slot and wait for the person to see it. If you fail to protect your rights, the courts may not help to save you from your own mistakes, or, more likely, it will cost you a great deal more to undo the errors.

Notify Attorneys and Insurance

Immediately send a copy of the lawsuit to your attorneys and your insurance carriers noting the name of the person served, and the date and the time when they were served. Depending on your insurance policies and the nature of the claim, there may or may not be insurance coverage. Your attorneys may have to take the initial steps to protect your rights in the lawsuit.

Preserve Evidence

Your Association, all members of the Board of Directors, the Community Association Manager, and any employees of the Association have a legal duty to preserve evidence related to the lawsuit. Do not delete any emails or other electronically stored information, nor destroy any hardcopies of documents, letters, photographs, etc. If in doubt, ask your attorneys for guidance.

Preserve The Attorney/Client Privilege

Do not discuss the lawsuit with anyone other than your attorneys and other board members in executive session. Do not forward emails or other correspondence from your attorneys to anyone who is not a member of the board of directors, or the Community Association Manager.