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QUESTION: I am on the board of a retirement community. We have a resident complaining of cigarette smoke. We investigated and could not smell any smoke nor is there anyone around her who smokes. She is threatening to go to Fair Housing if we don’t do something about it. What should we do? Your resident may be suffering from a condition known as phantom smell syndrome. The medical term is phantosmia. She smells things that aren’t there. Medical literature describes a long list of causes for this unfortunate olfactory hallucination–some serious and others benign. Noise Complaints. I had a similar situation with an older woman in a luxury highrise who heard noises in her bedroom that kept her awake at night. Her lawyer daughter threatened to sue the association if the board didn’t stop the “common area” noise. Duty to Investigate. The board’s obligation is the same whether a resident complains of odors or noises–it must investigate. I asked the board to have at least two individuals schedule a time to listen to the noise. Two directors volunteered and invited me to attend. The three of us plus the manager went to the unit and exchanged pleasantries with the resident. She invited us into her living room and pointed out the noise to us. We all strained to listen and heard nothing. She was disappointed and told us it was much louder in the master bathroom and led us to the room. We all stood quiet as mice and listened. Again we heard nothing. She was insistent and informed us the noise made it impossible to sleep. She reminded us her daughter was a lawyer. We thanked her and headed for the door. Decision. The board was more than willing to fix the noise but there was nothing to fix (at least not with the building). The resident was hearing phantom noises–a medical condition known as “musical ear syndrome” where a person suffers from auditory hallucinations. The malady got its name because people often hear music. Paper Trail. I wrote a letter to her lawyer daughter about the investigation and the board’s decision. I offered a renewed investigation if she hired a licensed acoustical engineer who could record the “loud noise” and offer an expert opinion that it was loud enough for a jury to deem it a nuisance. The daughter never filed suit and her mother stopped complaining. Annoyance v. Nuisance. We live with sounds and smells around us every day. They might be an annoyance but that doesn’t mean the association is required to take action. [E]very annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether the plaintiffs have been annoyed or disturbed … but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 764.) We have a lot of aging baby boomers living in condominiums. I suspect boards will run into more complaints of noises/odors both real and imagined. When complaints are made, boards should decide if the noise/odor is a mere annoyance or an actionable nuisance. Directors don’t need to personally investigate. Managers, maintenance personnel, or experts can investigate and report their findings. If the board concludes the noise/odor is not a nuisance (or doesn’t exist), the finding should be documented in a letter to the person. If the matter ends up in court, the board’s investigation, deliberation, and decision should satisfy the the Business Judgment Rule and be deferred to by the judge.

QUESTION: With all the changes in banking, are we still required to have two directors sign all checks? Our management company makes an electronic transfer from our reserve account into a bill paying account once bills are approved by the board. Is that legal? ANSWER: There has never been a requirement that all checks be signed by two directors. It has, however, been the practice that all reserve transfers be done by checks signed by two directors. That standard is steadily changing with the advent of electronic banking. Banks no longer offer two-signature accounts nor do they monitor signatures–something I addressed in a newsletter two years ago. Reserve Transfers. Whether by design or not, the Davis-Stirling Act does not require signatures on a check. Rather, the Act requires a more nebulous requirement of two signatures to withdraw funds without specifying where or how the signatures are employed: The signatures of at least two persons, who shall be members of the association’s board of directors, or one officer who is not a member of the board of directors and a member of the board of directors, shall be required for the withdrawal of moneys from the association’s reserve accounts. (Civ. Code §5510(a).) The intent of the statute is to make sure two directors or a director and an officer know about and authorize the withdrawal of reserve funds. If two directors issue written instructions to the association’s management company to make a transfer, it appears the statutory requirement is satisfied. Email Approval. Since electronic signatures are now recognized to be the same as signatures on a piece of paper, they can be used to authorize the transfer of reserve funds. Accordingly, email authorizations from two directors to the management company also satisfy the requirement. Management companies should be careful to preserve those instructions so they have a paper trail showing each transfer was authorized. Otherwise, the management company could find itself in hot water if the transfers were ever challenged. Governing Documents. Despite the above analysis, associations should first review their governing documents before changing how they handle reserve transfers. Their CC&Rs or bylaws may contain more stringent requirements for handling reserve funds. If so, those procedures must be followed. RECOMMENDATION. To protect reserve funds, boards cannot rely on banks to monitor transfers. Instead, boards must adopt internal controls and carefully monitor their reserve accounts for any unusual activity. Boards still have the option of requiring all transfers be done by checks signed by two directors. Boards should consult legal counsel, their CPA, and their management company before adopting a particular policy.

“Nature gave us one tongue and two ears so we could hear twice as much as we speak.” – Epictetus

Never put water down the drain when there may be another use for it such as watering a plant or garden, or cleaning. Verify that your home is leak-free, because many homes have hidden water leaks. Read your water meter before and after a two-hour period when no water is being used. If the meter does not read exactly the same, there is a leak. Repair dripping faucets by replacing washers. If your faucet is dripping at the rate of one drop per second, you can expect to waste 2,700 gallons per year which will add to the cost of water and sewer utilities, or strain your septic system. Check for toilet tank leaks by adding food coloring to the tank. If the toilet is leaking, color will appear within 30 minutes. Check the toilet for worn out, corroded or bent parts. Most replacement parts are inexpensive, readily available and easily installed. (Flush as soon as test is done, since food coloring may stain tank.) Avoid flushing the toilet unnecessarily. Dispose of tissues, insects and other such waste in the trash rather than the toilet. Take shorter showers. Replace you showerhead with an ultra-low-flow version. Some units are available that allow you to cut off the flow without adjusting the water temperature knobs. Use the minimum amount of water needed for a bath by closing the drain first and filling the tub only 1/3 full. Stopper tub before turning water. The initial burst of cold water can be warmed by adding hot water later. Don’t let water run while shaving or washing your face. Brush your teeth first while waiting for water to get hot, then wash or shave after filling the basin. Retrofit all wasteful household faucets by installing aerators with flow restrictors. Operate automatic dishwashers and clothes washers only when they are fully loaded or properly set the water level for the size of load you are using. When washing dishes by hand, fill one sink or basin with soapy water. Quickly rinse under a slow-moving stream from the faucet. Store drinking water in the refrigerator rather than letting the tap run every time you want a cool glass of water. Do not use running water to thaw meat or other frozen foods. Defrost food overnight in the refrigerator or by using the defrost setting on your microwave. Kitchen sink disposals require lots of water to operate properly. Start a compost pile as an alternate method of disposing food waste instead of using a garbage disposal. Garbage disposals also can add 50% to the volume of solids in a septic tank which can lead to malfunctions and maintenance problems. Consider installing an instant water heater on your kitchen sink so you don’t have to let the water run while it heats up. This will reduce heating costs for your household. Insulate your water pipes. You’ll get hot water faster plus avoid wasting water while it heats up. Never install a water-to-air heat pump or air-conditioning system. Air-to-air models are just as efficient and do not waste water. Install water softening systems only when necessary. Save water and salt by running the minimum amount of regenerations necessary to maintain water softness. Turn softeners off while on vacation. Check your pump. If you have a well at your home, listen to see if the pump kicks on and off while the water is not in use. If it does, you have a leak. When adjusting water temperatures, instead of turning water flow up, try turning it down. If the water is too hot or cold, turn the offender down rather than increasing water flow to balance the temperatures. If the toilet flush handle frequently sticks in the flush position, letting water run constantly, replace or adjust it. Don’t over water your lawn. As a general rule, lawns only need watering every 5 to 7 days in the summer and every 10 to 14 days in the winter. A hearty rain eliminates the need for watering for as long as two weeks. Plant it smart, Xeriscape. Xeriscape landscaping is a great way to design, install and maintain both your plantings and irrigation system that will save you time, money and water. For your free copy of “Plant it Smart,” an easy-to-use guide to Xeriscape landscaping, contact your Water Management District. Water lawns during the early morning hours when temperatures and wind speed are the lowest. This reduces losses from evaporation. Don’t water your street, driveway or sidewalk. Position your sprinklers so that your water lands on the lawn and shrubs … not the paved areas. Install sprinklers that are the most water-efficient for each use. Micro and drip irrigation and soaker hoses are examples of water-efficient methods of irrigation. Regularly check sprinkler systems and timing devices to be sure they are operating properly. It is now the law that “anyone who purchases and installs an automatic lawn sprinkler system MUST install a rain sensor device or switch which will override the irrigation cycle of the sprinkler system when adequate rainfall has occurred.” To retrofit your existing system, contact an irrigation professional for more information. Raise the lawn mower blade to at least three inches. A lawn cut higher encourages grass roots to grow deeper, shades the root system and holds soil moisture better than a closely-clipped lawn. Avoid over fertilizing your lawn. The application of fertilizers increases the need for water. Apply fertilizers which contain slow-release, water-insoluble forms of nitrogen. Mulch to retain moisture in the soil. Mulching also helps to control weeds that compete with plants for water. Plant native and/or drought-tolerant grasses, ground covers, shrubs and trees. Once established, they do not need to be watered as frequently and they usually will survive a dry period without any watering. Group plans together based on similar water needs. Do not hose down your driveway or sidewalk. Use a broom to clean leaves and other debris from these areas. Using a hose to clean a driveway can waste hundreds of gallons of water. Outfit your hose with a shut-off nozzle which can be adjusted down to fine spray so that water flows only as needed. When finished, “Turn it Off” at the faucet instead of at the nozzle to avoid leaks. Use hose washers between spigots and water hoses to eliminate leaks. Do not leave sprinklers or hoses unattended. Your garden hoses can pour out 600 gallons or more in only a few hours, so don’t leave the sprinkler running all day. Use a kitchen timer to remind yourself to turn it off. Check all hoses, connectors and spigots regularly. Consider using a commercial car wash that recycles water. If you wash your own car, park on the grass to do so. Avoid the installation of ornamental water features (such as fountains) unless the water is recycled. Locate where there are mineral losses due to evaporation and wind drift. Create an awareness of the need for water conservation among your children. Avoid the purchase of recreational water toys which require a constant stream of water. Be aware of and follow all water conservation and water shortage rules and restrictions which may be in effect in your area. Encourage your employer to promote water conservation at the workplace. Suggest that water conservation be put in the employee orientation manual and training program.