As a community association attorney who has fought in the trenches for fifteen years, I have witnessed many instances where boards or individual board members act outside their authority, act irrationally, or simply ignore legitimate complaints or calls for action by homeowners.
One reader asked what to do when his board and the association’s manager failed to enforce the governing documents fairly and consistently? What if a board or manager refuse an owner’s request to review HOA documents? Or denies an owner’s request for a hearing? In each of the foregoing circumstances, the owner should be able to point to particular provisions of the governing documents which require explicit action and compliance by the board.
If a homeowner believes her board is failing to respond appropriately or is acting irrationally, she should:
- Articulate the issue(s) as succinctly as possible;
- Gather all relevant written documentation;
- Review the association’s governing documents (Articles of Incorporation; Declaration, Bylaws, Rules & Regulations) and identify which provisions control over the issue(s); and
- Identify all relevant persons who are witnesses, parties or have other persons with knowledge of the facts and circumstances giving rise to the issue.
- The owner should then draft a concise written letter or request to the board that embodies the four factors described above. If the association is professionally managed, then a copy of the letter should be sent to the manager.
The association’s governing documents should have a process or protocol to resolve the dispute. If so, the owner should identify the process and insist on board compliance. If not, and if the board does not respond adequately to the owner’s letter, then the owner can request a meeting with the board (called Informal Dispute Resolution under the Davis-Stirling Act, Civ.Code § 5900).
If the board continues to dismiss or ignore the owner, and if the professional manager is ineffective in helping to resolve the dispute, then the owner should seek legal counsel. If IDR fails or is not pursued, the Davis-Stirling Act requires the homeowner and association to attempt a more formal Alternative Dispute Resolution method (see Davis-Stirling Act, Civ.Code § 5905-5955) prior to a lawsuit being filed.
If an owner does not wish to seek legal assistance, and if they feel the board is failing to follow its governing documents or otherwise acting irresponsibly or irrationally, then the owner may wish to try to unseat the board through a special election and vote of the association. An association’s governing documents ordinarily outline the process for removing a board member or entire board.
A modicum of common sense and reasonableness also goes a long way to solving the problem. If all else fails and the board cannot be removed via special election, then mediation or court interaction may be required. If so, in claims arising from enforcement or other CC&R disputes, many governing documents allow the prevailing party to recover their reasonable attorney’s fees and costs.
Hopefully calm, reasonable and rational minds will prevail. If not, please do not hesitate to give us a call.