Reader Questions - Shutting off Utilities, Proxy Verification

Mr. Richardson,

Good morning. Our community has approximately 9 that are behind in their HOA dues, some by two or more years. Can we legally have their water shut off as the HOA pays for that?? Any other suggestions??

Thank you,

C.G., North Hills

Dear C.G.,

Today more than ever before, in what has now become known as the “Great Recession”, associations are struggling everywhere, searching for new ways to deal with the problem of assessment delinquencies. Associations can, by following the disciplinary process, suspend the member’s right to use common area amenities (such as the recreation room, pool, etc.) or even membership voting rights.

However, the association cannot take action which would deny the use of the residence, such as cutting off essential utilities. Publishing a “deadbeat list” of delinquent owners is another creative albeit bad idea.

The best approach to deal with delinquencies is to have a reasonable collection policy and then stick to it. Make sure the association does not let delinquencies build up too much before taking action. As to which type of assessment collection technique to use (small claims, non-judicial foreclosure or judicial foreclosure), that is for a different column!

Thanks for your question, and hope your association situation improves soon.
Kelly

Dear Kelly,

If a HOA elections rule states that “Proxies may not be used in lieu of a Ballot” can H/O’s legally collect proxies and bring them to the annual meeting and be counted?

When I ask the Inspector of Election how he was going “Determine the authenticity, validity, and effect of proxies” He stated that he merely looked at the HOA listing to verify the address and considered it valid.. The way I read the Davis-Stirling 1363.03(a)(4) it states that the Association is to “Specify the qualifications for voting. the voting power of each membership, the authenticity, validity, and effect of proxies, etc. I feel that the Association and Inspector of Election failed to meet this requirement.

Your opinion please. Thanks,

R.R., Menifee

Dear R.R.,

Talking about a document I have not seen is always perilous (so please take this with a grain of salt), but it sounds as though your HOA election rules ban proxies. Normally a ban on proxies would be found in bylaws, not only in the rules. By banning proxies in the rules, your association is adding a new restriction upon voting, and thereby doing something which may violate your bylaws or even CC&R’s (check those documents, they hopefully also ban proxies). Issues regarding HOA elections are better addressed in bylaws, not CC&R’s, but sometimes you will find such matters addressed there also.

If your association does in fact have a valid ban on proxies, your inspector of elections should have used proxies only for purposes of attaining quorum.

I am not a fan of proxies at all, and suggest to most of my clients that proxies be eliminated in their next bylaw revision. Since all members receive a ballot thirty days or more ahead, and since ballots can be mailed or dropped off in advance, proxies are largely unnecessary. The law imposes very few formal requirements on proxies for validity, and most inspectors of election cannot really determine whether a signature or a date is authentically in the member’s handwriting. So, it is simply too easy to play games with proxies.

Best,
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®.