Real Estate & Property Law

Must an HOA or Condo Board Allow "The Accused" to Confront Witnesses?

As part of a series on hearings (see E-Newsletter for June on the subject of whether multiple hearings are required for continuing or re-occurring fines - in the E-news Archives at http://www.californiacondoguru.com), I thought I would write about my opinion on whether owners subject to disciplinary action have the right to "confront witnesses".

If you read the E-Newsletter on fines, you will see that HOA and Condo boards are not really "state actors" (governmental or public entities) and therefore not necessarily subject to legal "due process" standards in all cases. There are some court decisions suggesting otherwise in the country. In any case, the position I see as viable is that at the least, HOA and Condo Boards should engage in fundamental fairness in holding hearings (which process is governed by California law) and in considering disciplinary action such as fines or suspension of membership rights for violations of the governing documents or rules.

I am not necessarily in the "camp" that believes owners in HOAs or Condo Associations have the right to technically "confront" witnesses that have complained of conduct which put the owner before the board in a disciplinary hearing. In other words, cross-examination, in my view, should not be a right that extends to homeowner associations. However, a board that is intuitive can, if inviting both parties (the accused and the accuser) to the hearing, and allowing each to present their side of things, find out a lot about what is going on, which will help in making a reasonable decision about whether disciplinary action should be imposed.

For any situation that can be independently verified - I do not believe the "accuser" or "complainer" needs to be invited to the hearing at all.

And, if it appears there is any chance of actual physical or abusive "confrontation" by the accused, or the accuser, get some legal help from an experienced practitioner in formulating a plan for the hearing, or protecting identities, or whatever you believe is needed.

Watch for more on this. In a later blog, I will address whether I believe tenants should be invited to hearings when they are the subject of the conduct being examined.

If you want extensive detailed information on enforcement, hearings, policy setting, etc., check out the Enforcement Primers available on my website in the webstore at http://www.californiacondoguru.com.

Full post as published by California Condo & HOA Law on June 16, 2009 (boomark / email).