Real Estate & Property Law

HOA / CONDO Association Rules Violations & Due Process - The Continuing Debate

There is a continuing debate going on about HOA and Condo Association hearings. And it is an interesting one. Debate is healthy. It stirs interest in a topic. The point under discussion: what is required of a board to address a situation where there is a continuing or recurring (someone wrote and asked me to stop using re-occurring which is fine with me) violation of the rules? And what is the difference between continuing and recurring?

I think we all agree that continuing means something that goes on day to day without changing, such as a paint color or vehicle parked without being moved. "Recurring" would be something that happens, and then happens again, and then happens again, such as slamming a door or parking a vehicle in the wrong place each day. Whew! Glad we can agree on something (or do we???).

Now, the big question is about imposing fines for these violations - after notice and a hearing of course. Does the Board have to hold more than one hearing for continuing or recurring violations. You can read my earlier blog for what I, and some colleagues have opined. My question for this day is:

Are HOA and Condo hearings on par with criminal proceedings, where due process is critically important? Obviously the stakes are much higher in a criminal proceeding, and "state action" is clearly involved because the penalties come straight from the Penal Code.

Fining an owner for continuing or recurring conduct - once they have been clearly given the message that such conduct will subject them to a fine or suspension of other rights (such as pool use - yes, that too), is in my opinion fundamentally fair.
And what is also important is that it is fair to the volunteer board members and the rest of the community, that violators should be subject to some penalty.

One commentator weighed in and said that a board could give notice and hold the hearing, and then provide the owner with a "probationary" period, with the cavaet that if "probation" was violated, another fine would be imposed. I do not think that is a bad idea - it might make alot of sense in a situation like pool abuse, where fines are imposed for disruptive conduct at the pool, and the "probation sentence" is that if the same conduct recurs, the punishment is suspension for the season.

But of course (there is always a "but" isn't there?), if there is reason to suspect the proof or complaint is unreliable, then imposing any fines is risky and possibly unfair.

That is why we should focus some discussion on what is reliable and credible proof/evidence. If the board can have it independently confirmed, then it is reliable. If more than one person has complained, it likely is reliable information, but certainly more investigation can be performed. If it is Joe Blow and Patty Mouth throwing insults and complaints about each other's conduct, there is reason to investigate and seek out further truths (or possibly even "butt out").

As to fining into infinity, at some point the Board has to make a decision to "sh__" or get off the "p_t" (anyone familiar it that saying)? This decision should be a good sense one. If someone constructed a deck over common area for all others to see, then this situation would dictate more assertive action than "forever fines". If the owners' tenants cannot control themselves at the pool and create turmoil every time they attend, then they should be banned for a reasonable period each time it occurs. Evidently, some "training" is required here. If an owner lets their dog poop in the laundry room every time they do laundry, then a fine each time, possibly even escalating, might be "fine".

If an HOA or Condo Association is challenged on a fine or fines, the most likely venue is small claims court, which is a court of "equity" (fairness in other words).

So, I say again, HOA and Condo Association hearings and fines or suspension of use of facilities are not on par with criminal proceedings. And HOAs and Condo Associations are not police, judges, or jailers who have it in their power to confine people to bread and water, or solitary confinement, or time in jail, or the electric chair. Certainly, there are boards that have taken action with regard to fines that is unreasonable, unfair, unwarranted, and downright ridiculous. But that does not taint the pool of volunteer board members that are just trying to do the right thing when dealing with the perpetual violator (at least not until there is some appeal court case in California or legislation that dictates processes and procedures further).

Full post as published by California Condo & HOA Law on June 17, 2009 (boomark / email).