Tips For Boards and Owners Regarding Disciplinary Hearings

By Kelly G. Richardson, Esq., HOA Homefront Column

HOA discipline is a necessary evil. Residents don’t like being told what to do, while at the same time some rules are necessary to ensure neighborly behavior, protect the architectural conformity, and preserve good appearances of HOA properties. Many board volunteers are uncomfortable being the “bad guy,” while at the same time many homeowners feel that they’re the only ones being pursued for violations.

Here are some tips for homeowners and volunteer leaders to remember when dealing with violations or being accused of a violation.

TIPS FOR BOARD MEMBERS:

They might not know. Unfortunately, it seems that most HOA homebuyers do not read the HOA governing documents (CC&Rs, bylaws, and rules) before they buy. If someone is a first-time violator, it may be healthier to first assume the member did not realize they are violating a rule or restriction, instead of the more common assumption that the member is deliberately disrespecting the association and their neighbors. Sometimes beginning with an explanation of the rule is more productive than proceeding straight to threats of enforcement and starts the dialogue off on a more positive note.

Warnings. Sometimes a warning is sufficient, particularly for first-time offenders. The law now allows members to essentially cancel the disciplinary hearing by bringing their property into compliance. Warnings expend little effort and give good faith owners the opportunity to correct the problem before it becomes a larger issue.

Process. Disciplinary hearings are essentially a meeting of neighbors to discuss unneighborly behavior. They don’t need to be terribly formal and should be pursued in closed session. A reasonable time limit should be set for the hearing. Better yet, boards can adopt a simple written disciplinary hearing policy, which can be given to members along with the hearing notice.

Strict compliance. Under Civil Code Section 5855(g), disciplinary actions are unenforceable unless the HOA complies with all the requirements of Section 5855. Boards and managers should be very familiar with those requirements to avoid wasting time. 

TIPS FOR HOMEOWNERS:

Yes, they can do that. Read the governing documents BEFORE purchasing in the HOA (or at least as soon as possible after moving in). The California Supreme Court ruled over 30 years ago that rules or CC&R restrictions will be enforced by the court unless they are illegal or arbitrarily enforced.

They may not be picking on you. We tend to focus upon ourselves and forget the big picture. Rules and CC&R restrictions are designed to protect property and ensure neighborly behavior. I hate it when my neighbor makes noise at midnight, so why should it be OK if I do it? 

Your tenant is your problem. Landlord owners often incorrectly assume they are not responsible for their tenants’ actions. However, HOA normally have no legal relationship with tenants, who are not association members, so they must pursue the landlord for the tenant’s violation.

You may not be the only one. A common reaction upon receiving violation or hearing notices is “they’re picking on me.” However, most associations don’t divulge disciplinary actions to the entire HOA community and keep enforcement activities confidential. It is entirely possible that the HOA is pursuing multiple other identical violations.

BOARDS AND HOMEOWNERS:

At all times, be civil in hearings. You are neighbors, remember? The focus should be neighborliness.