Reader Questions - What Is HOA, Disciplinary “Due Process”

Hello Mr. Richardson,

What is hoa? I just glanced at your article in the newspaper entitled “Peace among HOA neighbors.” You use the word “hoa” often, but do not define it.

Best wishes,

B.C., Riverside County

Dear B.C.,

The abbreviation “HOA” means “HomeOwners Association”. It is the most commonly used label applied to what the law in our state calls a “Common Interest Development (“CID”). I often use the term “CID” in this column, because that is the accurate legal term. Interestingly, the Davis-Stirling Common Interest Development Act never uses the term “HOA” or “Homeowners Association.” I use it in this column because that is the more commonly used name. It can be troublesome, because there are hundreds if not thousands of common interest developments in California which are not strictly “homeowners” in composition. Industrial, commercial or “mixed use” projects contain non-residential, business uses.

Thanks,
Kelly

Hi Mr. Richardson,

I am on the Board for our HOA and have a question about one of your HOA Homefront columns printed in the paper. It indicated that owners do not have a right to know who complained about them. Our property manager has told us just the opposite – that complaints can’t be made anonymously since if it goes to hearing, the owner has a right to “face his accuser.” If complaints can be made anonymously, I’d like to point that out to the Board and management so that our policy on that is changed.

Thanks,

L.C., Anaheim Hills

Dear L.C.,

There is a common misconception that all the rights of the accused in criminal court also apply to HOA disciplinary hearings. Common interest developments are not public governments, and its board hearings are not courts. In a CID (aka “HOA”), the accused is not being charged with a crime. Such hearings are intended to be, and should be, informal. If one could invoke the Constitution, then one could demand a jury, a court reporter, or writs of habeas corpus!

The CID version of “due process” comes from Civil Code 1363(g), and is simple: Before issuing a fine, there must be a written schedule of fines which has been distributed to the members (1363(f)). The alleged violator must be sent written notice at least 10 days before the hearing, containing the meeting’s date, time and place, the nature of the alleged violation, and a statement that the member may attend and address the board. If the member requests, it must be held in closed session. If any discipline is imposed at the conclusion of the hearing, the member must be advised of the decision no later than 15 days after the hearing. That is all the statute says.

If the member cannot attend the hearing, the board is not required to postpone it but may if it seems reasonable. In the hearing, give alleged violators a reasonably limited time to address the issue. Allowing the accused to confront the complainer is unnecessary and a bad idea, as is letting them observe the deliberations. If the association accepts anonymous complaints, sometimes preserving anonymity can reduce the risk of retaliation. Hearings should be in closed session, whether or not the member requests it. No good can come of airing a member’s “dirty laundry” before the community.

Neighbors should be reasonable, and hearings should also be reasonable.

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®.