Q: I had a hearing regarding a rules violation. I thought it was unfair and asked for an internal dispute resolution meeting. My punishment from the board was a suspension of privileges. At the IDR, the president (the one that pursued the violation against me) showed up with the member I asked for, to conduct the IDR. The president then added to the board’s discipline by adding a fine, ordering me not to attend board meetings and said all this would also apply to my wife! Is this legal? I feel that I was tried twice: once by the board and then by the president. — B.G., Palm Desert
A: If the president was the complaining party, then the president should not have participated in the disciplinary hearing or the IDR meeting due to the president’s personal conflict of interest on the matter.
As to the additional disciplinary measures, the president has no individual authority. Per Civil Code Section 5855, only the board can impose discipline after written notice and a hearing.
Also, many HOAs are erroneously suspending member voting rights as a disciplinary measure, but that is not allowed pursuant to Civil Code Section 5105(g)(1). Sorry B.G., but your board may need to remind the president that the board runs things, not the president.
Q: I spoke for my time in open forum inquiring about the status of some incomplete projects. The president screamed at me, calling me a liar and saying I was spreading misinformation to homeowners. Is this proper conduct for a president in Open Forum to scream at a homeowner? — D.S., Irvine.
A: Open forum is the time for the board to listen, not argue or respond. The president’s response indicates a misunderstanding of the function of open forum.
Yelling in a board meeting should never be acceptable behavior, no matter how strongly someone might disagree. Remember, you’re all neighbors, and you have to live together in peace. How is that possible when if the HOA allows such behavior?
Meeting conduct rules would help your HOA, and such conduct rules should apply to all attendees – including the president. HOA leaders need to model a high level of civility, and it sounds like this is not occurring in your association. Best to you and your association, Kelly.
Q: Is it true that a homeowner who is accused of a violation cannot sue the HOA? My HOA is accusing me of something that I didn’t do, and they want to fine me. I need to take them to court if necessary. I will not be fined for something that I did not do. Is there a court remedy? — C.C., Redwood City
A: You can sue your HOA for declaratory relief if you disagree with a disciplinary decision. However, before you take such a drastic step, consider if it’s truly worth it. Pursuant to Civil Code Section 5975, the prevailing party in a dispute over enforcement of the governing documents is to be awarded their reasonable attorney fees. This could be a very expensive gamble. Consider the overall picture and decide whether the expense of your own attorney and the risk of an expensive adverse outcome, is worth it. Sincerely, Kelly.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association expertise. Submit column questions to Kelly@roattorneys.com.
Kelly G. Richardson | Contributing Columnist Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice.