Real Estate & Property Law

Fining Without "Due Process" - Not Cool

Readers of my website often write in and complain about wrongdoing. Before I would form any judgements about any situation, I would want to hear both sides. Here's one such letter.

"Here's a scenario. A board member or a homeowner goes to a board member and complains about their neighbor and makes false/true accusations which are in violation of the HOA. The board members only listen to this person... never contacts the homeowner being accused and makes their decision, issues a letter with a fine to the homeowner. The protocol is an appeal at an executive hearing. Which basically means you are guilty until you prove yourself innocent. AND if they don't like you, it gets even worse."

Some boards do jump to conclusions. I know when I started practicing law boards would sometimes come to me with a complaint about a particular owner and ask me to write a letter threatening fines or other remedies for misconduct. I was too green to realize that accepting everything a client told me at face value could result in egg on the face. I started asking more questions and in particular made more of an effort to see if the board had done any investigation to determine any other "side" to the reason for (or maybe the question of truth of) the conduct that had come into question. You would be amazed at what I discovered, and just how much money, time, effort, and "egg" was saved by asking questions up front to elicit what anyone of importance to the issue knows, before sending the letter "blast" demanding cooperation.

And yes, in California, the legislators have stepped in to adopt

(1) Procedures that describe the requirements for imposing rules and making changes in rules (which requires pre-board-approval circulation to owners for comment) CC 1357.100 et. seq.

(2) A requirement to fine that a fine schedule must be adopted pre-imposition of fine against anyone (which requires following (1) above) and circulated to members. CC 1363(g) and

(3) A specified set of requirements guaranteeing notice to owners when the board is going to consider disciplining an owner, a hearing (meeting to consider discipline) and a written decision to be sent to owner afterwards, all under specific timelines. CC 1363(h)

See the Enforcement Primers in the Webstore at www.californiacondoguru.com (only $25) each to assist in understanding these complicated laws!

Full post as published by California Condo & HOA Law on September 11, 2010 (boomark / email).