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Subject: CA HOA Due Process Issue
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ShannonM4
(California)

Posts:8


07/21/2019 10:27 PM  
A neigtbor of mine spoke briefly to a vendor, upset at a step they took in their work that the neighbor thought was damaging to the property.

He was wrong, it jsut appeared that damage was done. HE told the vendor that it looked bad, and asked what they were doing.

Instead of the usual possible phone call to him from either management or a board member, or a letter sent indicating there was a problem with this exchange, like any other rule-breaking might produce
(even though we had trouble finding what rule this actually broke) he got a nasty letter from the association lawyer saying he threatened and harrassed the vendor,
which was not true, at least not from his accounting.

This doesn't make sense to me, as it seems to skip the whole "due process" requirement.
This letter threatened him with a lawsuit, though it was also confusing that the HOA seemed to be saying they were going to file a suite on behalf of the vendor(?)

Woudn't there be the usualy step of perhaps showing what evidence the make such accusations, and then a letter citing the rule (of the governing documents etc) that
had been broken, and a time to "correct" the situation, as well as a hearing if the situation was not corrected?

If Due Process steps are skipped, what should my neighbor do? This seems like inconsistent appplication/enforcement of the rules, and I had heard of many instances
where neighbors were feuding and hurning threats and insults, and it was either a "disturbance of quiet enjoyment" issue, or a "call the police if there are threats" issue.

In each instance, there was extensive correspondence between management and the resident before any such steps were taken, like letter from a lawyer threatening a lawsuit.

This just seems wrong, the way they have handled this... is it?
NpS
(Pennsylvania)

Posts:3597


07/21/2019 11:10 PM  
Due process = Right to notice and a hearing before any rights are taken away or penalties are imposed.

From what you wrote, no rights were taken away and no penalties were imposed. So far - there is no violation of due process rights.

Lawyer's letter = notice. You might not like the way it's worded, but it does satisfy the first element of due process -- notice. The letter is a warning that an action might be taken against the owner -- and a warning is a notice.

Maybe you would have written the letter differently, or not sent one at all. But ... Without the letter, there would have been no "notice." And without "notice" ... the first requirement of "due process" would not have been followed.

It could be that the owner had calmed down by the time she talked to you. But maybe she really went after the vendor. Maybe to the point where the vendor threatened to quit. Maybe the BOD didn't want to lose the vendor because he was doing a great job. I could add a lot more maybes to the list, because in truth, I have no idea what happened, how the owner treated the vendor, how that confrontation affected the relationship between the HOA and the vendor, or how disturbed the BOD members were about a homeowner going after a vendor without going through the MC or the BOD.

I'm not defending anyone. Then again, I don't think people should be quick to assign blame when the folks being blamed might be dealing with a different set of facts.

Sikubali jukumu. Read all posts at your own risk.
ShannonM4
(California)

Posts:8


07/22/2019 1:38 AM  
Posted By NpS on 07/21/2019 11:10 PM
Due process = Right to notice and a hearing before any rights are taken away or penalties are imposed.

From what you wrote, no rights were taken away and no penalties were imposed. So far - there is no violation of due process rights.

Lawyer's letter = notice. You might not like the way it's worded, but it does satisfy the first element of due process -- notice. The letter is a warning that an action might be taken against the owner -- and a warning is a notice.

Maybe you would have written the letter differently, or not sent one at all. But ... Without the letter, there would have been no "notice." And without "notice" ... the first requirement of "due process" would not have been followed.

It could be that the owner had calmed down by the time she talked to you. But maybe she really went after the vendor. Maybe to the point where the vendor threatened to quit. Maybe the BOD didn't want to lose the vendor because he was doing a great job. I could add a lot more maybes to the list, because in truth, I have no idea what happened, how the owner treated the vendor, how that confrontation affected the relationship between the HOA and the vendor, or how disturbed the BOD members were about a homeowner going after a vendor without going through the MC or the BOD.

I'm not defending anyone. Then again, I don't think people should be quick to assign blame when the folks being blamed might be dealing with a different set of facts.





The things is, our governing docs and CA state law define a process that is very specific... a notice of a rule broken-the rule itself must be cited, and they are given 10 days to "fix" it.
If not fixed, a second notice that calls the member to a voluntary hearing... at the hearing they can state their case... and then the board decides if any action is needed...

If they do not show, the board can fine them... alternately, if IDR is requested by the homeowner, the association cannot refuse to accommodate that request.

It's very clear, but they seem to have subverted that whole loop.

Also... an actual "threat" should have generated a police report... if one "feels threatened" that is different from an actual threat.
If someone speaks sternly, I'm not sure what rule has been broken... there is also no actual rule against homeowners speaking to vendors...
the vendor is supposed to direct them to management, if there is an issue.
This all came on the heels of his wife complaining to the board about an issue with one of the board members, so it seems like retaliation.

ShannonM4
(California)

Posts:8


07/22/2019 1:38 AM  
Posted By NpS on 07/21/2019 11:10 PM
Due process = Right to notice and a hearing before any rights are taken away or penalties are imposed.

From what you wrote, no rights were taken away and no penalties were imposed. So far - there is no violation of due process rights.

Lawyer's letter = notice. You might not like the way it's worded, but it does satisfy the first element of due process -- notice. The letter is a warning that an action might be taken against the owner -- and a warning is a notice.

Maybe you would have written the letter differently, or not sent one at all. But ... Without the letter, there would have been no "notice." And without "notice" ... the first requirement of "due process" would not have been followed.

It could be that the owner had calmed down by the time she talked to you. But maybe she really went after the vendor. Maybe to the point where the vendor threatened to quit. Maybe the BOD didn't want to lose the vendor because he was doing a great job. I could add a lot more maybes to the list, because in truth, I have no idea what happened, how the owner treated the vendor, how that confrontation affected the relationship between the HOA and the vendor, or how disturbed the BOD members were about a homeowner going after a vendor without going through the MC or the BOD.

I'm not defending anyone. Then again, I don't think people should be quick to assign blame when the folks being blamed might be dealing with a different set of facts.





The things is, our governing docs and CA state law define a process that is very specific... a notice of a rule broken-the rule itself must be cited, and they are given 10 days to "fix" it.
If not fixed, a second notice that calls the member to a voluntary hearing... at the hearing they can state their case... and then the board decides if any action is needed...

If they do not show, the board can fine them... alternately, if IDR is requested by the homeowner, the association cannot refuse to accommodate that request.

It's very clear, but they seem to have subverted that whole loop.

Also... an actual "threat" should have generated a police report... if one "feels threatened" that is different from an actual threat.
If someone speaks sternly, I'm not sure what rule has been broken... there is also no actual rule against homeowners speaking to vendors...
the vendor is supposed to direct them to management, if there is an issue.
This all came on the heels of his wife complaining to the board about an issue with one of the board members, so it seems like retaliation.

NpS
(Pennsylvania)

Posts:3597


07/22/2019 6:53 AM  
Posted By ShannonM4 on 07/22/2019 1:38 AM

The things is, our governing docs and CA state law define a process that is very specific... a notice of a rule broken-the rule itself must be cited, and they are given 10 days to "fix" it.
If not fixed, a second notice that calls the member to a voluntary hearing... at the hearing they can state their case... and then the board decides if any action is needed...



Interesting. I hope someone from CA responds. As for me, I don't know what there is to "fix". Does there have to be a rule saying that homeowners must go to the MC or BOD instead of going to the vendor directly with complaints? Without a rule like that, does the HOA have to refrain from saying anything?
To me, it's more about common sense. But I respect and understand that laws don't always follow common sense.

Posted By ShannonM4 on 07/22/2019 1:38 AM
If they do not show, the board can fine them... alternately, if IDR is requested by the homeowner, the association cannot refuse to accommodate that request.



I get the impression that the HOA sees this as a one-time event, and doesn't expect it to occur again. So fining probably isn't in the cards. Also, see no reason why the owner can't ask for IDR.

Posted By ShannonM4 on 07/22/2019 1:38 AM
It's very clear, but they seem to have subverted that whole loop.



Could be under CA law. But not under common sense considerations.

Posted By ShannonM4 on 07/22/2019 1:38 AM
Also... an actual "threat" should have generated a police report... if one "feels threatened" that is different from an actual threat.



Interesting that you think the police should have been brought in if there was any form of threat. Do you mean that the vendor should have called the police instead of going to the BOD or MC? I don't think that would be such a good idea, but that's just my opinion.

Posted By ShannonM4 on 07/22/2019 1:38 AM
If someone speaks sternly, I'm not sure what rule has been broken... there is also no actual rule against homeowners speaking to vendors...
the vendor is supposed to direct them to management, if there is an issue.
This all came on the heels of his wife complaining to the board about an issue with one of the board members, so it seems like retaliation.



Ok. I understand a lot better now. You don't like the way your wife was treated. And there is history. Tough situation for you. In your shoes, I might ask for IDR. The first question I would ask is: "Why do you think the lawyer's letter was necessary?"

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:1886


07/22/2019 7:13 AM  
Posted By ShannonM4 on 07/21/2019 10:27 PM
he got a nasty letter from the association lawyer saying he threatened and harrassed the vendor, which was not true, at least not from his accounting.


In nearly all circumstances, attorneys are legally permitted to exaggerate the facts or speculate, to the point of flat-out extreme lying. This is in the name of 'zealous advocacy' for their client. It's a flaw in the legal system. If it were not an attorney writing a cease and desist letter, and one could show financial damage from what was written, then what was written could be slanderous.

I am not saying the attorney was right to do this. From what you wrote, it sounds like a moronic move. Such communications only fuel the flames of conflict and loathing between parties at a HOA.

If the HOA ever made good on its silly threat to file suit against this person, then this person would be getting "due process" through the court system. Like NpS pointed out, so far, no legal rights have been taken from the person. Nor is the person being threatened with removal of any legal rights. It may seem otherwise. Wrongful accusations happen all the time. One has to get a thick skin, particularly with an incompetent HOA Board and leech-like HOA attorney.

This letter threatened him with a lawsuit, though it was also confusing that the HOA seemed to be saying they were going to file a suite on behalf of the vendor(?)


In an extreme case of a HOA member interfering with a HOA vendor trying to do her or his job, there might be grounds for 'tortious interference with contract' where the HOA could sue the member because, say, a well-qualified vendor terminated a contract due to harassment by a member and being unable to get the job done. I have never seen such a suit. As I wrote above, the attorney is likely in pit bull mode and exaggerating what happened.

I had heard of many instances where neighbors were feuding and hurling threats and insults, and it was either a "disturbance of quiet enjoyment" issue, or a "call the police if there are threats" issue. In each instance, there was extensive correspondence between management and the resident before any such steps were taken, like letter from a lawyer threatening a lawsuit.


There's no telling why this member was singled out for an extra does of chastisement from the HOA attorney. Perhaps there is more history that you have not posted.

This just seems wrong, the way they have handled this... is it?


Such a letter may very well not be in the best interests of the HOA, and so unlawful, but proving this would be impossible. The letter is probably ethically and morally wrong, but it is not unlawful.
KerryL1
(California)

Posts:6541


07/22/2019 3:07 PM  
NpS & Augustin both make sense. We do have rule against being rude to our onsite staffers (PM, asst. Mgr, custodians, security) and to vendors. If reported and the report is corroborated, the offending Owner can be called to hearing and fined for such conduct.

If Shannon's HOA doesn't have such a rule, how na they discipline the Owner? Seems like spring the $$ and having a letter sent.
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