Archive for the ‘3. Public affairs’ Category

When the quake starts, duck or run?

Sunday, October 1st, 2017

How can you maximize your chances if you are indoors when a major earthquake starts? The conventional advice given by most experts to residents of the United States is: Stay inside and crouch under a sturdy piece of furniture.

Residents of Berkeley Town House, a senior housing cooperative, got that advice from a highly qualified seismic engineer, David Ojala, during a March 2017 briefing that I organized. Ojala explained the basis of his opinion as a balance between risks. Residents could be killed or injured trying to flee the building, or, if the building were to collapse, by staying inside, but he estimated the risk from flight as substantially greater.

Until today, I had the impression that this opinion is consensual in the entire fraternity of expert seismic engineers.

Not any more. Now I’m aware that it is at least somewhat controversial when applied to buildings of the Berkeley Town House type, namely older non-ductile (i.e. stiff) concrete buildings. The dissenting opinion that I encountered today is that of H. Kit Miyamoto, set forth in his 27 September dispatch from a tour of earthquake damage in Mexico City. Here is the pertinent passage:

Old concrete structures are one of the most dangerous building types that exist on earth. Their inadequate reinforcing details make the concrete very brittle under seismic motion. All damaged buildings we saw today were this type. You know how we teach people to duck under a desk during an earthquake? We teach this in California. But if I’m in a nonductile concrete structure, I will run as fast as I can outside and so should everybody.

Miyamoto goes on to explain that this advice would not turn out to be right in every situation:

This earthquake was also different from the 1985 one. The Mexico City earthquake in 1985 was a long-distance earthquake with long, swaying motion. This affected taller structures, six stories and higher. But this earthquake had a much sharper and faster shaking motion, which impacted three- to six-story structures more. It’s what we called “resonance effect.” Every earthquake is different and affects different types of buildings. So, one cannot say that a building is safe if it went through one earthquake. Next one can be totally different.

So, unless you know in advance about the characteristics of the next quake, if Miyamoto is right then you can’t be sure whether it is better to duck or to run until it is too late to make the choice. But at least one thing is clear: You can’t do what all the experts recommend, because they don’t.

In California, 10,000,000 win while 60 lose rights

Thursday, September 28th, 2017

Two battles

I have been involved in 2 long-running battles to win some basic democratic rights for myself—and for 10 million other Californians. Recently both of these conflicts came to opposite ends.

Battle #1 was fought in the courts. It ran for 5.5 years, from early 2012 until late 2017, and involved 2 lawsuits, with a total of almost 700 legal papers filed in court.

Battle #2 was fought in the legislature. It ran for 4 years, from 2013 to 2017, and involved attempts to persuade the Senate and Assembly to adopt 2 proposed bills.

In both struggles, my allies and I were trying to win rights for members of what California calls “common interest developments”. If you are a California homeowner or tenant in a condominium association, housing cooperative, planned development, or community apartment project, then you are one of the 10 million Californians—a quarter of the population—living in common interest developments (CIDs).

The rights I was fighting for include:

  • Freedom of speech
  • Freedom of assembly
  • Freedom of association
  • Freedom of the press
  • Right to vote
  • Right to be a candidate for elective office
  • Due process
  • Right to witness meetings of governing bodies
  • Freedom of information (right to inspect records)

In essence, here is the problem: CIDs are private associations with somewhat governmental powers, such as the power to tax, to punish, and to deport. These powers come with nonpolitical names (such as “assess”, “discipline”, and “evict”), but courts have pointed out the similarities and, on that basis, recognized the state’s power to protect CID residents from the abusive exercise of those powers. The state has enacted protections for CID residents, mainly in two places: the Corporations Code and the Civil Code. But the protections are sloppily formulated, and questions often arise as to what they mean. On occasion, courts intervene to interpret them, or the legislature and governor amend those codes to resolve such questions.

Even to summarize the arguments for and against the claims about these rights would try the patience of almost any reader. You can find those in pleadings in the above-cited litigation.

Back, then, to the news.

Battle #1

The litigation came to an end in October 2016 with the court’s final approval of a settlement between Berkeley Town House Cooperative Corporation (BTHCC) and me. BTHCC is a housing cooperative in Berkeley, with 60 units (membership limited to seniors). The settlement, as I interpret it, was a compromise between my claims and BTHCC’s defenses, and it was so vaguely formulated as to invite post-settlement conflict. It secured a few rights for the 60 members, but only a fraction of what I had claimed the members were entitled to.

As could be expected, after the settlement BTHCC and I promptly began to disagree about whether BTHCC was complying with its settlement obligations. Most crucial was a dispute over BTHCC’s required disclosure of financial records. The settlement required BTHCC to disclose to me (so that I, in turn, could scrutinize them and further disclose them to the other BTHCC members) the “general ledgers” of BTHCC from 2010 to 2016. I argued that BTHCC’s disclosure had to include every income and expense transaction, with the payer or payee identified. But BTHCC claimed that it had the right to keep the income transactions secret, and, if it did disclose any, it could lump them together and conceal the identities of the payers. BTHCC makes about 30 payments a month, but takes in about 60 payments (of assessments by members) a month. So BTHCC claimed it could let me see about a third of all the transactions and that would count as total disclosure. I brought BTHCC back to court to enforce its disclosure obligation. BTHCC resisted. Lengthy pleadings set forth my arguments, and those of BTHCC, in detail.

Finally, the court issued an order on 22 August, giving a 100% victory to BTHCC in the disclosure dispute. Since it was not certified for publication (as some appellate decisions are), it cannot be cited as precedent in similar lawsuits, but it resoundingly denied to the 60 members of BTHCC the right to see who has been paying and who has not been paying to BTHCC the required monthly assessments. Has the Board of Directors been allowing itself and its friends to pay late? Has the Board been lax in enforcing members’ obligations to pay? Has money fallen through the cracks? BTHCC was preventing its members from answering such questions, and, thanks to this court decision, it will be able in the future, too, to keep the sources and amounts of its income secret.

Battle #2

Meanwhile, a legislative battle began in early 2013 with a failed effort by me to get the Civil Code amended. The proposed amendment would state, for the first time, that constitutionally guaranteed civil liberties apply inside CIDs. Any rule violating Article 1 of the California Constitution, where basic civil liberties are set forth, would be invalid. The procedure under which I made this proposal required unanimity among stakeholders, and there was no such unanimity. Attorneys who represent CIDs in disputes with their members argued, as they typically do, that CID members enjoy civil liberties outside the walls of the CIDs, but not inside. So my proposal gathered some opposition, and the committee considering it refused to endorse it for lack of unanimity.

Two years later I was a member of a group proposing a somewhat similar bill. This time it had a senatorial sponsor and did not require unanimity. This bill, SB-407, was less comprehensive but more explicit. It protected members’ freedoms of speech, assembly, and press in various contexts. For the first time, CID members could gather and discuss public and CID issues in a CID’s common areas without needing to get advance permission, pay fees, or buy insurance coverage. If a CID denied any of these rights, members could go to small-claims court to get an order and collect a $500 penalty.

Experience led me to expect vocal opposition to such an expansion of CID member rights. Amazingly, however, the initial opposition evaporated during negotiations over SB-407. It was amended during the legislative deliberations in such a way as to satisfy all the major stakeholders. In the end, it was adopted by both houses with near-unanimous votes. Two weeks ago, on 11 September, the governor signed it into law. So, as of 1 January 2018, all 10 million CID residents in California will be explicitly entitled to a new set of democratic rights.

Why did we have a relatively easy time getting this bill adopted? The sponsorship of Senator Bob Wieckowski and the indefatigable advocacy of the Center for California Homeowner Association Law were, by all appearances, crucial. The bill also got support from the American Civil Liberties Union of California, the California Alliance for Retired Americans, the California School Employees Association, the Community Associations Institute–California Legislative Action Committee, the Golden State Manufactured-Home Owners League, and the Non-Profit Housing Association of Northern California. There was no organized opposition.

Ironically, BTHCC, too, played a significant part in this bill’s adoption. Back in early 2013, during the litigation between BTHCC and me, I arranged a meeting in a BTHCC common area with invited expert guests to discuss—of all things—civil liberties in CIDs. The BTHCC Board of Directors (then composed of Almalee Henderson, Margaret Tuggle, Judith Wehlau, Lydia Gans, and Raymond Dirodis) hired an attorney, Stephanie J. Hayes, to threaten me and any visitors to the meeting with arrest for “trespass” if I did not cancel the meeting and disinvite the visitors. This threat was consistent with a position, then taken by the Board and since then never officially rescinded, that it had the sole power to decide who may meet in the BTHCC common areas and what topics may be discussed there. The Board has further claimed that it can require members to seek permission for any gathering at least 2 weeks in advance, and anybody who meets in a common area without such permission can be fined. (The Board has prohibited other meetings because of content, for example refusing to let a group discuss affordable housing. And it also prohibited interviews of BTHCC members by makers of a documentary on housing cooperatives.)

Three years after this threat of arrest, it backfired. The advocates of SB-407 gave the legislature a copy of the threat letter from the BTHCC attorney, and used it as the main item of evidence that some CIDs “stifle free expression”.

Morals of the story

“You win some and you lose some”. I lost the battle for complete disclosure of BTHCC’s finances to its 60 members. But, three months later, my allies and I won a battle to get specific freedoms of speech, assembly, and press guaranteed by statute for the first time to the 10,000,000 residents of CIDs in California. Yes, BTHCC defeated my efforts to secure disclosure. But its heavy-handed plan to bring police to bear on people for discussing civil liberties inadvertently helped convince the legislature and governor to write new protections into the law.

On the basis of these experiences, what can you do if you are one of the millions of CID members and you want full financial disclosure? After exhausting your in-house remedies, should you take your CID to court, try to get the legislature to make the law more explicit, run for a position on the board of directors, or just give up?

My choice was to take BTHCC to Superior Court, with attorney representation. This was due to special factors that would probably not apply to you. I was pursuing other claims, too. They resulted in BTHCC recovering over $200,000 from two contractors, BTHCC being forced to stop concealing seismic risks in its building from prospective members, and my own recovery of over $300,000 to pay for attorney fees.

If you faced a refusal to disclose CID records, you would have judicial options that I did not have. Starting in 2014, after I filed my first lawsuit, the legislature made it possible to sue for disclosure of records in small-claims court. So now, if you want to see records and your CID denies them to you, you can file a small-claims complaint at nearly no expense and pursue it without an attorney. Of course, your small-claims judge might rule the same way as the judge in my case, but there is no assurance of that. And you can ask for a $500 penalty as well.

You could also try to follow the legislative route, asking for a Civil Code amendment that would erase the ambiguity as to whether a CID must let its members see, in full detail, the records of all transactions on both sides of the ledger, income as well as expenses.

Then there is the political option: becoming a candidate in the next election for directors of your CID. Once you are a director, you have more unlimited rights to see records, and you are likely to be granted access to all the details. You can even propose a board resolution publishing the entire general ledgers of all income and expense accounts for access by all members.

If my experience is a guide, such activism, whether judicial, legislative, or political, is likely to interfere with your social life. You may be branded a traitor and face ostracism. You may be harassed. (I had blue cheese smeared on my apartment door, water poured onto my head, and posters posted calling me a “creep” and a “scorpion”.) Why? After all, you would be fighting for your fellow members’ rights. Paradoxically, most of them despise the right to full financial disclosure. Most want to be kept in the dark about whether their fellow members are paying what they owe. (Like my grandma, who said “If you ever start dating a non-Jewish girl, don’t tell me.”) They have the legal right to enforce your obligation to pay your monthly assessments, but they want to be denied the information that would make such enforcement possible.

For the same reason, I consider all of these approaches to be long shots. Your opponents in court will likely try to make your personality the issue, rather than their secret-keeping. Representatives in the Senate and Assembly will likely fear the wrath of numerous constituents. And a candidate for a directorship who seeks to open the books will have a hard time getting elected, unless the position is uncontested.

You do, however, have another option: to give up, by either ignoring the problem or moving out. Given the odds, this is tempting. Why not let only the directors know whether they are mismanaging the funds? Just trust them. Trust, clearly, is the easiest approach.

Week 6 at an Unbootcamp

Friday, June 16th, 2017

No ordinary week

“Cycle 47” was a special week in my career makeover at Learners Guild. The old Guild is no more; enter the new Guild.


First, the week was abbreviated, for me, by a day and a half of jury duty. I was confident I would never survive the peremptory challenges in any jury selection: I’m too iconoclastic and steeped in litigation. This was a residential eviction case, where the defendant was claiming retaliation. I myself had just moved out of a co-op in anticipation that its members would perpetrate retaliatory eviction against me. How could the landlord’s attorney let me onto that jury? But she did. The tenant’s attorney asked whether, despite my involvement in numerous prior eviction cases, I could be unbiased in this case, and I said no, I could not be unbiased. But he still didn’t challenge me! Both attorneys exhausted their challenge allotments on persons who, in my lay judgment, were less risky for their clients, but not on me. So I actually got onto the jury. We heard our instructions and witnessed a couple of hours of botched testimony by a landlord witness, who said his firm normally complies with the law on evictions but admitted he didn’t know whether it had complied in this case. Why this case ever reached trial was a mystery to me. And the next morning we were informed that the case had settled, so we were let loose. Before leaving the courtroom, I asked the landlord’s attorney whether her client couldn’t have prepared better for this trial, and she agreed.

Back at Learners Guild, I resumed work on my Goal on Wednesday. “My”, because the Algorithm had assigned me to my second-choice (solo) Goal rather than my first-choice (team) Goal. Had I been on a team, I would have asked to have my jury duty rescheduled, in fairness to my teammate.

The nitty gritty

The Goal required solving 8 logical problems, called “coding exercises”:

  1. Scrabble tally: Given a list of tiles already used, return a tally of all letters, grouped by the counts of their remaining tiles. I chose to implement it generically, so it would work for any language’s version of Scrabble, or any other structurally identical situation.
  2. Word lookup in a string: Given a string (i.e. a line of text) and a number, return the word that is at the number’s position in the string, where the first position is zero. I chose to implement it with the XRegExp library, so it would work for any language, not just English. Whether for English or generically, one must define “word”. For this exercise, I defined the words of a string as what are left when we treat any sequence of characters matching the regular expression “[^\pL\pN]*\pZ[^\pL\pN]*” as a delimiter. That means any sequence of 0 or more characters other than letters and/or numbers, provided that it includes at least 1 separator character (using Unicode’s definitions of letters, numbers, and separators). There is no universally satisfactory rule defining “word” in all languages, or even in English. Mine was a quick-and-dirty rule. It classifies “M&M.” as a word in “He ate an M&M.”, and “Mr” as a word in “Mr. Smith”.
  3. Translator between (ordinary) decimal numbers and binary numbers with the Fibonacci sequence as the base. (We who love to solve problems don’t ask, “What am I ever going to need this for?”.)
  4. Function that removes vowels, defined as “a”, “e”, “i”, “o”, “u”, and all non-a-to-z characters (even A-to-Z), from a string. Defined naïvely and Anglocentrically, so I couldn’t try to universalize it. Lucky for me; that could have taken a lifetime.
  5. A search tool to find a value inside a JSON string. JSON seems to have taken over supremacy from XML as a format for exchanging complex bodies of information. Its advocates say it’s “much simpler”.
  6. Date reformatter: Converts from any of 6 formats to the ISO 8601 standard format, like “2017-06-16”.
  7. Music player: A web page that, as soon as you open it, plays the notes of an octave and, optionally, a chord. Why was this included here? Sure, it’s coding, but it also involves researching how to generate and play sound. That’s what took the most time for me.
  8. Parenthetical redundancy eliminator: Given a string, return the same string, with any redundant pairs of parentheses removed. Not as simple as it may seem. For example, “ak⁾vo (((water [[(H₂O)]])))” contains no redundant pairs of parentheses, because brackets and full-width parentheses are not (in my solution) classified as parentheses.

That, then, is a taste of the kind of thinking we learn to practice at the Guild.

Would the detour hurt my grade?

Given the interruption, I doubted I could complete the 1-week Goal’s requirements by Friday afternoon. My coach reassured me that my completion score on this Goal would not suffer from my jury-duty absence, because scores were adjusted for time off. In any case, I managed to finish the 8 problems on Thursday, so I used the remaining time to start some of the Goal’s optional work.

Anyway, grades didn’t exist at the Guild. Statistics and levels did, though, and it’s hard to avoid assimilating any quantitative indicator into one’s mental model of grading at school. Even without grades, I have been seeing a considerable amount of grade anxiety among Learners, attached to what are the closest approximations to grades.

Revolution from above

Little did my coach or I know that the week’s work was not going to be scored for completion at all. We did get a hint of this on Monday, when the staff advised us not to worry about completion scores that week and to focus only on learning as much as we could. But the deeper reason for this advice was revealed only on Friday.

Learners Guild solicits comments from its Learners, and it gets many unsolicited comments as well. Its staff makes changes in the process in response to those comments.

On Friday afternoon, when I normally would have been composing this blog entry (well, a blog entry, since the content would have differed), we spent 3 hours learning of, asking questions about, and discussing a new batch of changes to the system. This one was no set of incremental adjustments. It was fundamental.

The Guild has now jettisoned its entire apparatus of statistical progress (and regress) indicators, which had been refined for months and was about to be re-refined. By one staffer’s own testimony, the repeated attempts to make that system satisfactory had led to a conviction that doing so was hopeless, so, in mid-tweak, the system was trashed.

The set of “levels” through which Learners moved on the basis of their statistical indicators has likewise been thrown overboard. This vertical (higher and lower) metaphor has been replaced by a horizontal one: “phases”.

Phases might seem like a mere renaming of levels, but they are not:

  • The phases differ in their content. Phases 1 and 2 are self-paced individual work devoted to mastery of prescribed fundamentals. In those phases, no more do Learners vote on preferred projects; instead, there is a fixed set of skills to be acquired. Phase 3 is team-based small projects with choice, like what I have been mostly doing up to now. Phase 4 is collaborative work on real (not just realistic) open-source projects. Those two project phases, 3 and 4, are not rigidly tied to a 1-week cycle. And Phase 5 is preparation for the reality of the external market for the Guild’s product, web application developers.
  • Admission into the next phase depends on a 1-week testing and interviewing filter. We should expect on average to be ready for that after about 5 weeks in a phase, but we must get into the next phase in no later than 8 weeks; otherwise, our progress is not satisfactory. If we don’t get admitted on our first attempt, we get an additional opportunity to try. Phase 5 is not subject to that limit if it would eject us before our 40 weeks at the Guild has come to an end.
  • Learner-to-learner coaching is no longer a formal element of the system. Instead, we are supported by “Software Engineering Practitioners”, who are Guild employees. To see the qualifications of an SEP, look at the current hiring announcement. If you yourself are qualified, please apply and mention my blog as your referral source. While coaches are no more, the Guild hopes that its abandonment of microstatistical indicators will make Learners more relaxed about taking time from their work to help other Learners. Thus, if it works, coaching will become culturally pervasive, instead of being an assigned temporary role.

The path from here to there

The Guild seems to have defined a reasonably smooth transition for existing Learners into the new order. This week we are on a pre-scheduled 1-week break. Next week we all undergo a “sorting” process. To prepare, each of us has notified the Guild which phase he or she asks to be evaluated for. Starting Monday morning, we work individually on projects constituting take-home tests for the phases we have chosen. Starting Wednesday afternoon, we get interviewed by SEPs on the solutions we produced, to evaluate our (in)ability to explain and reason about our own solutions and possible alternatives. At the end of the week we learn whether we have been admitted to the phases we selected; if not, we are admitted to the preceding phases.

The Guild program lasts, nominally, 40 weeks (plus 1 or 2 break weeks). If the transition places a Learner into a phase that makes the program longer, then it is extended for that Learner.

I have been at the Guild for 6 weeks now. That should qualify me to get into Phase 2. But the Guild advises us to try to get into the most advanced phase we “think” we “can” get admitted to. I have probed for clarity about that, and I believe the intended meaning is the most advanced phase we believe the SEPs have a nontrivial probability of letting us into. So, if my subjective probability of success in getting into Phase 3 is 30%, I should try for Phase 3. That’s close to my subjective reality, so I have asked to be tested for Phase 3. If I were to succeed, I would feel a need to backfill my fundamentals, and I’d be doing so under pressure to complete current projects, but that’s probably typical of the real software-development world.

Who’s the guinea pig?

Abrupt change can be exhilarating or frightening, and the changes can benefit some while harming others. The Learner population is diverse in many ways, so the personal impacts of this redesign will vary.

At least one Learner has said that the Guild feels like a laboratory in which she is one of the subjects in an experiment.

There is a basis for that impression. The Guild exists only in Oakland but aspires to replicate itself. We are testing each iteration of its design and helping the Guild decide what to keep and what to change. The system must work for us before it can be scaled up and out.

While acknowledging the validity and empirical basis for the sense that the Guild is experimenting on us, I have a different feeling. For me, yes, there is an experiment going on, but in that experiment I am the experimenter and the Guild is the subject.

I am conducting an experiment (or, perhaps better, pilot study) testing the hypothesis that there is no chronological limit to professional rejuvenation, even in information technology. I invited the Guild to join that experiment, and it agreed. As time passes, I keep providing stimuli to the Guild, and it keeps responding. Step by step, I’m discovering what makes it tick and how to get my needs satisfied by this subject, who is simultaneously a subject in 120 other engineers’ experiments, testing similar but not identical hypotheses. In this interaction, I perceive more autonomy in myself than in the Guild.

I have also heard the suggestion that the Guild may be breaking its contract with Learners when it changes its system. I have my doubts about that, and in fact I would probably entertain such a notion if the Guild refused to change its system, because, arguably, that would be negligence.

But these are subjective matters. If you are considering applying to the Guild, considering the testimony of other Learners and me may help you predict what your own interpretations would be. If you are risk- and change-acceptant, I believe that’s a good sign of compatibility. Perhaps only such persons are a good fit for contemporary software development work anyway.


Our mistakes

Friday, May 26th, 2017

GiveWell has a website with a common layout but an unusual twist. There are 7 topics on its navigation bar. What is special is topic 5: “Our mistakes”.

Vicarious liability for housing discrimination clarified

Saturday, February 25th, 2017

If you live in a housing community (i.e. a common interest development, such as a condominium association or a housing cooperative) and another resident of that community commits a discriminatory or harrassing act against you, whom can you blame? The other resident only, or also the community association?

Possibly both, it seems. Final Rule FR-5248-F-02 was issued by the U.S. Department of Housing and Urban Development on 14 October 2016. It provides, among other things, that “A person is directly liable for … [f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it.”

Community associations  have some regulatory powers over their member/residents, and also some duties to exercise those powers. Those powers and duties are spelled out in applicable statutes and in the communities’ own governing documents. For example, an association’s governing documents may prohibit a resident from disturbing, by noise or otherwise, residents in other units and may grant the association’s board of directors the power to enforce that prohibition. If a racist resident were to harrass or disturb a neighbor because of that neighbor’s race, and if the association failed to “take prompt action to correct and end” that behavior, the association could be vicariously liable for that violation of federal fair-housing law.

Below I offer some thoughts about how to manage this risk. But first here is the HUD discussion of the arguments made about how this new rule applies to community associations:

Issue: A commenter expressed concern that proposed § 100.7(a)(1)(iii) creates liability on the part of a community association (homeowner association, condominium or cooperative) for the illegal acts of residents over whom they have no control. The commenter urged HUD to remove or revise the proposed rule’s extension of direct liability to community associations for the discriminatory actions of non-agents. The commenter stated that community associations generally lack legal authority to mandate that residents take actions described in the preamble of the proposed rule because the associations cannot evict homeowners or otherwise impose conditions not specifically authorized by the association’s covenants, conditions, and restrictions (CC&Rs) or state law. The commenter suggested that if the language in § 100.7(a)(1)(iii) remains, it should be modified to clearly state which terms and conditions in association bylaws and regulations constitute a duty on the part of an association or its agents to investigate and punish residents for illegal discriminatory housing practices.

HUD Response: As noted above, HUD has slightly revised § 100.7(a)(1)(iii) to clarify that a housing provider is liable under the Fair Housing Act for third-party conduct if the provider knew or should have known of the discriminatory conduct, has the power to correct it, and failed to do so. HUD also notes that the rule does not add any new forms of liability under the Act or create obligations that do not otherwise exist. The rule does not impose vicarious liability (see § 100.7(b)) on a community association for the actions of persons who are not its agents. Section 100.7(a)(1)(ii) describes a community association’s liability for its own negligent supervision of its agents, and § 100.7(a)(1)(iii) describes a community association’s liability for its own negligence for failing to take prompt action to correct and end a discriminatory housing practice by a third-party. With respect to § 100.7(a)(1)(iii), the rule requires that when a community association has the power to act to correct a discriminatory housing practice by a third party of which it knows or should have known, the community association must do so.

As the commenter recognizes, a community association generally has the power to respond to third-party harassment by imposing conditions authorized by the association’s CC&Rs or by other legal authority. (31) Community associations regularly require residents to comply with CC&Rs and community rules through such mechanisms as notices of violations, threats of fines, and fines. HUD understands that community associations may not always have the ability to deny a unit owner access to his or her dwelling; the rule merely requires the community association to take whatever actions it legally can take to end the harassing conduct.

What does this rule suggest for risk management by community associations? Here are some thoughts:

  • The association’s governing documents should perhaps state not only that the association prohibits itself from engaging in illegal discrimination or harrassment, but also that it prohibits such conduct on the part of its members.
  • To the extent that the association has the power to accept or reject new members and residents (as cooperatives typically do), the governing documents should perhaps require the decisionmaker to make reasonable inquiries about any history of discriminatory or harrassing conduct by a candidate, and to reasonably avoid approving the admission of any candidate who could be expected to engage in such conduct.
  • The association should perhaps ensure that it has a procedure for the safe reporting of discriminatory or harrassing behavior by members and residents against one another and for the “prompt” intervention of the association to verify and deal with it.
  • Trying to avoid vicarious liability by giving up enforcement powers seems impractical in most cases. Members and residents depend on associations to keep the premises livable, if necessary by enforcing rules against disruptive residents.
  • This potential liability seems tricky enough that it may warrant a consultation with a qualified attorney about rules that an association proposes to adopt in order to deal with it. (I’m not one, in case that isn’t obvious.)

Thanks to Matt Ober, Esq., for calling community associations’ attention to this new rule.

Mostly wise advice on community property values

Friday, February 24th, 2017

Robert Nordlund has dispensed 10 ideas for increasing the value of property in a common interest development (a.k.a. housing community).

Ideas 1–7 seem, in principle, unproblematic:

  1. Budget accurately & honestly.
  2. Maximize curb appeal.
  3. Avoid deferred maintenance.
  4. Avoid special assessments.
  5. Create a culture of transparency.
  6. Build community.
  7. Adhere to your association’s rules and standards.

And Nordlund effectively explains why those ideas make sense.

The other 3 ideas, however, seem more self-serving.

Idea 8 is “Employ accredited, credentialed managers”. That may seem prudent, but it rejects the very idea of managing one’s own housing community. In some cases, this latter model offers compelling benefits similar to those enjoyed by do-it-yourself owners of single-family homes. Nordlund also claims that “Accreditation from CAI assures associations that they can expect professionalism from their managers.” That is an exaggeration. I have personal experience with a manager having such an accreditation but not professionalism.

Idea 9 is “Train board members”. Yes, but once they are directors it’s too late. The mere decision to become a candidate in an election for director is almost destined to be an irrational decision without training in the powers, duties, liabilities, and risks of service as a director. Thus, all members of a common interest development need access to training if the CID is to function effectively. Nordlund also describes “CAI board training” as if it were synonymous with board training. CAI (the Community Associations Institute) is hardly the sole authority, and in fact regularly lobbies for legislation hostile to the exercise of democratic governance rights by members of CIDs.

Idea 10 is “Team up with knowledgeable business partners”, including “an accountant, attorney, banker, insurance agent, and a reserve study professional”. Fine, but, once again, Nordlund adds a plug for CAI: “professionals who earn CAI’s ‘Educated Business Professional’ distinction demonstrate they know how to help community associations foster excellence and avoid expensive mistakes and conflicts”. That is nonsense. Possessing the “CAI Educated Business Partner member distinction” (Nordlund names it incorrectly) requires listening to 3 hours of lectures, passing an examination, and thereafter remaining a member of CAI at $605 per year—nothing more. The lectures contain useful information, indeed, such as the facts that landscaping insurance does not always cover snow plowing and board meetings often last about 2 hours. Even memorizing all that information does not “demonstrate” that vendors “know how to help community associations foster excellence”.

In conclusion, my recommendation, if you are helping to govern a common interest development, is to read and heed Nordlund’s points 1 through 7—and stop right there.

Berkeley Town House 2012–2016 litigation: documents

Friday, February 24th, 2017

I have made available here public records of two related lawsuits involving Berkeley Town House Cooperative Corporation (“BTH”). This litigation began in March 2012 and ended in October 2016.

The first suit was “Jonathan Pool vs. Berkeley Town House Cooperative Cooperation, Almalee Henderson, Judith Wehlau, Charles Tuggle, Katherine Miles, Nancy Epanchin, Raymond Dirodis, Rita Zwerdling, Cheryl L. Samson” (case RG12620088). It was filed on 6 March 2012 in Alameda County Superior Court, California.

The second suit was “Jonathan Pool vs. Almalee Henderson, Judith Wehlau, Charles Tuggle, Katherine Miles, Nancy Epanchin, Raymond Dirodis, Rita Zwerdling” (case RG15779830). It was filed on 29 July 2015 in Alameda County Superior Court, California.

To see the records, you can visit:

To search within either collection, you can enter a search term and click on “Search”.

Both cases were classified as “complex” and assigned to Department 17 of the court.

The public court records in these collections are available also from the Superior Court itself, too, at its website, but they are not topically indexed, not searchable for words and phrases, and (in most cases) not free unless you inspect them at the court.

There are also some other entries in this blog about BTH litigation.

Painting quality—hype versus reality

Thursday, December 15th, 2016

Allied Construction Services, in Livermore, California, advertises “top tier workmanship” and 100% customer satisfaction. It just finished painting the portion of the exterior of the building I live in (Berkeley Town House) outside my apartment. This picture tells a different story. Judge for yourself.