Reader Questions - Small Claims, Attendance, and Self-Management

c c & rs governing documents h o a homefront reader questions Mar 16, 2015

Mr. Richardson,

If a homeowner is in arrears on HOA dues and the association has put a lien on the property, can the HOA proceed with Small Claims Court before a foreclosure to the property?

E.L., Newport Beach

Dear E.L.,

Associations can pursue past due assessments in small claims court, and some have found success using that forum. The Small Claims Court statutes are found at Code of Civil Procedure Sections 116.110-116.950 (read statutes at www.leginfo.legislature.ca.gov). Small claims court has some limitations – the association can only sue for up to $5,000 twice per year, and claims beyond two in a year are limited to $2,500, under CCP Section 116.231. Plaintiffs may not appeal the outcome, but defendants can. Attorneys are not allowed, and the lack of your HOA attorney can mean nobody is present to help correct legal errors by the parties or judge.

Small claims courts cannot order foreclosure on the lien, but can award money. Once you receive the judgment, you may need legal help to enforce the judgment.

Thanks,
Kelly

Dear Kelly,

My husband is not on my deed, as it was my separate property when I married him. However, he has a general power of attorney from me and recently attended a board meeting with me, where the President (a very contentious person) told my husband he cannot speak for me. He also said that all attendees are there as “guests” of the Board. I was under the impression that it is our right to be there.

L.O., Modesto

Dear L.O.,

Under the Open Meeting Act, members have the right to attend and observe all open meetings of the board. Members are not “guests,” but are attending by right. However, your husband may not be defined as a “member,” depending on how your governing documents read. If you do not wish him to be a co-owner of the residence, it is possible that the under the governing documents he will not be a “co-member.”

Thanks,
Kelly

Kelly,

I am writing to ask if it is practical today for an HOA to be managed by a Board of Directors. The directors are volunteers with little or no training in HOA management.

I served on self-managing boards prior to and following enactment of the Davis–Stirling Act. With the Davis–Stirling Act, and the additional legislation enacted each and every year since, the amount and the complexity of the knowledge a manager must have has increased manifold.

To further complicate this, there is little continuity from one Board to the next.

Am I crying wolf needlessly? Or do we need to consider hiring a qualified manager?

Sincerely,

R.Z., Hemet

Dear R.Z.,

Associations these days cannot expect to correctly follow the increasingly complex Davis-Stirling Act without qualified professional managers, either employed directly by the association or through a management company.

Volunteer-managed associations often find that one or two persons work almost full time for their neighbors, and that it is very difficult to find volunteers.

In recent years, the California Law Revision Commission considered drafting statutes for smaller associations, but dropped the topic when controversy arose about how to define “small.”

Your members will be much better served, and your association better operated, by a good, experienced, and credentialed manager.

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®.