The HOA’s Disciplinary Action Was Flawed, Now What?Aug 08, 2023
By Kelly G. Richardson, Esq.
Question: Our HOA egregiously violated Davis-Stirling rules by not offering due process to a resident fined for an alleged architectural misdemeanor. What recourse does the resident have? R.L., La Quinta.
Question: I served a disciplinary suspension and am now free. I have discovered that the board broke quite a few rules and laws in giving me my suspension. Can I post the violations on a community bulletin board? B.G., Palm Desert
Dear R.L. and B.G.: Civil Code Section 5855 sets forth a very specific disciplinary process, which must be followed BEFORE discipline can be imposed. The homeowner must receive written notice of a hearing, containing certain specific information, at least ten days in advance and must be given an opportunity to speak. Written notice of any discipline imposed must be sent to the homeowner by personal delivery or mail no later than fifteen days after the hearing.
The statute’s subpart (d) is very clear – disciplinary action “shall not be effective against a member unless the board fulfills the requirements” of the statute. Noncompliance means the HOA’s action would not be enforceable against the homeowner. So, R.L., if the homeowner hasn’t paid the fine yet, and the HOA failed to follow the statute’s requirements, the homeowner doesn’t have to pay it. B.G., I am sorry you learned after the completion of your suspension that the HOA’s action against you was flawed. However, bulletin boards are not normally open to homeowner postings and are reserved for official HOA announcements, so posting your own note would not be helpful. R.L. and B.G., encourage your boards to adopt reasonable disciplinary hearing procedures complying with the law and informing homeowners what to expect if called to a hearing. That would help everyone. Regards, Kelly.
Question: Regarding your answer on quorums required for a seven-person Board: For the future, would an alternative solution be to change the bylaws from a 7-person to a 5-person board? W.O., Lincoln.
Dear W.O.: If it is difficult for HOAs to get enough board candidates it might be worth the effort to get members to vote to amend the bylaws and reduce the board’s size. All but the very largest HOAs can operate well with boards of either five or seven directors, and very small HOAs often govern well with just three directors. Sincerely, Kelly
Question: The HOA law finally says term limits are permissible. They are already in our by-laws. Now they say they must be reaffirmed, and are calling for a bylaw vote. Does the term limit bylaw provision need to be reaffirmed via a vote of owners? J.M., Palm Desert.
Dear J.M.: For a few years, term limits were not listed in Civil Code Section 5105 as an eligibility factor affecting board candidacy. This cast into doubt the validity of term limits for HOAs that had term limits stated in their governing documents. This was corrected in 2022 when Civil Code 5103 took effect. The statute at subpart (d)(2) provides that a candidate may be ineligible if they have served the maximum terms or consecutive terms allowed by the HOA. Therefore, I don’t think the HOA must have a membership vote to resuscitate term limits which are already in the bylaws. Best, Kelly
The official site for the Davis-Stirling Act: www.leginfo.legislature.ca.gov.