Reader Questions - Enforcing Unwritten Rules

Hello Mr. Richardson,

Your articles are a wonderful resource for all involved with CIDs. I try to never miss an article.

This past year we got a new manager and there has been a huge increase in violation letters. Some for items like patio chairs on walkways, water hoses not coiled in specific areas, and unit numbers that have been replaced decades ago with non-matching designs. None of these are spelled out anywhere in any governance document.

The board has gone so far as to state that those with outstanding fines will not be able to vote in our upcoming election. What level of detail should the board publish and if they fail to publish it are there consequences?

Thank you,

A.S., Whittier

Dear A.S.,

Operating rules are, per Civil 4350(a), written. The association cannot enforce unwritten rules. This is why Civil 5855(b) requires notice of a disciplinary hearing to specify the “nature of the alleged violation.” Before a board pursues disciplinary action, it should first check the rules or CC&Rs – what specific section was violated? If a specific section cannot be found covering the issue, then perhaps the board should reconsider the disciplinary hearing.

Most associations have a prohibition in the CC&Rs or rules banning “nuisance.” “Nuisance” is defined by Civil Code 3479 as: “Anything which is injurious to health… or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” This is a very broad definition, and it needs to be so, because it is impossible to anticipate all the ways a neighbor may “interfere with the comfortable enjoyment” of neighbors. However, if the issue in the hearing is “nuisance,” the notice of hearing should indicate how the member was allegedly a nuisance.

Another very common HOA deficiency is the failure to have a written schedule of fines. Under Civil 5850, associations must have a written “schedule of fines” and 5850(c) bars an association from imposing a fine which is more than the fines in the published fine schedule at the time the alleged violation occurred. The schedule of fines is also required to be published annually as part of the Annual Policy Statement, per Civil 5310(a)(8).

As to eligibility to vote, some associations have bylaws which bar owners from voting (or serving as directors) if they are delinquent in assessments or have unresolved violations. If an association does not have such a provision in its bylaws, the board may hold a hearing to suspend the voting rights of members. Corporations Code 7341 prescribes the procedure for suspending membership rights. It is important to note that this statute requires fifteen days’ notice prior to the suspension, unlike the normal HOA disciplinary hearing notice of ten days minimum. So, if the association wishes to be able to consider suspension as an option, it would need to give notice at least 15 days ahead of the hearing, or wait until 15 days from the notice to commence the suspension (if the hearing was sooner than that).

Also, if an association has not enforced a rule but plans on starting to enforce a rule, it is a good idea to give notification to the membership in advance.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.