DanielH1
(California)
Posts:481
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| 03/16/2010 3:31 PM |
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Adams Kessler, through their www.davis-stirling.com website, says:
"4. Defense. The accused has the right to know the identity of his/her accuser and must have an an opportunity to question the witness; and giving the accused an opportunity to examine and refute the evidence."
http://www.davis-stirling.com/DueProcess/tabid/730/Default.aspx
In another thread, we debated that legality of this. To avoid a rehash, I agree that two case precedents (i.e. Applebaum and Cason) DO support and require that HOAs must (A) tell the accused violator the identity of the witness and (B) allow the accused to question/cross-examine the witness.
But should this be?
On one hand, people should have rights (even in a HOA) and should not be "convicted" by unfair or arbitrary Boards.
On the other hand, witnesses should not be subjected to cross-examination/revenge by the accused. As a practical matter, HOAs can't enforce rules because nobody would be willing to be a witness. |
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RobertR1
(South Carolina)
Posts:5164
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| 03/16/2010 4:13 PM |
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Daniel:
Is your question that the law as written is wrong or part of the law?
The subject asks: Should an accused violator be allowed to confront the witness.
You can ask is the witness required to subject himself to cross examination by the accused. The law seems to say yes but I doubt the HOA has the authority to require the witness attend any of these meetings or whatever. Maybe be could make a voluntary written statement but it seems to me that is stretching a bit far also. If there was criminal conduct involved the police would handle it of course.
I really think there is no resolution here on this site. It is a state ruling, maybe subject to interpretation but not subject to change by a discussion group.
Just my opinion of course. |
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DonnaS
(Tennessee)
Posts:5671
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| 03/16/2010 4:14 PM |
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Daniel,
What could you possibly be referring to that one would pit one homeowner against the other.
Violations of the covenants are the only thing that an association can enforce and you certainly do not need 2 different owners when all that is nescessary is documentation in the form of photos and other physical proof. Criminal and personal law breaking is enforcement that only law authorities can enforce and has nothing to do with HOA enforcement. I think that these references are a far stretch of what powers a HOA has when it comes to accusers in an enforcement situation. A HOA cannot set up a mini court session where it has a face-off between two owners with questioning each other. Where the heck would this go besides downhill.. |
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DanielH1
(California)
Posts:481
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| 03/16/2010 4:22 PM |
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My question is: In the opinion of the people in this forum, SHOULD the legal system give the accused these rights?
We've already debated elsewhere that the legal system DOES give the accused these rights.
But, in your opinion, do you agree or disagree that the accused should have these rights? |
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DanielH1
(California)
Posts:481
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| 03/16/2010 4:38 PM |
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Example:
John's dog poops in the Common Area. Bob sees it happen. John doesn't pick up the poo. Bob doesn't confront John.
Bob later reports the violation to the Board. Bob still doesn't want to confront John. The Board drops the violation because: John has the right to know that Bob filed the complaint and John also has the right to confront Bob and question him. |
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DonnaS
(Tennessee)
Posts:5671
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| 03/16/2010 5:55 PM |
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It is not Bob's duty to prove that John is not picking up his dog's poop. I do not believe that the HOA should involve Bob. It is up to the Board to find evidence against John, not Bob. The HOA is not a court of law, it's where we live, supposidly in harmony
If the HOA wants to prove a case against John, then it is up to them to ontain PROOF!! Bob can take a picture or tape John but Bob should not have to face him. And I say it again, this is not a court where you point your finger at someone. |
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HB
(Oregon)
Posts:143
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| 03/16/2010 6:49 PM |
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I agree with Donna. The accuser should be able to merely report the activity. If they want to provide evidence, that is great, otherwise it is up to the HOA to make sure the rules/regs are followed.
Many people don't want to step in poop out at the park, but they really don't feel comfortable confronting the person allowing it to happen. You never know how someone might react. We always encourage homeowners to contact our managment company to express their concerns, so we can follow up on it. |
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RogerB
(Colorado)
Posts:4645
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| 03/16/2010 7:38 PM |
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Should an accused violator be allowed to confront the witness? IMO absolutely not.
But the violator has the right to challenge and try to prove that they did not violate a reasonable restriction. The Board has the responsibility to hear both sides when there is a Hearing.
We investigate and document al homeowner complaints and are therefore the witness who provides testimony and evidence to substantiate a violation. Using this procedure a neighbor does not have to be confronted or nor are they identified as the one who initially complained. |
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TimB4
(Virginia)
Posts:3229
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| 03/16/2010 8:13 PM |
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Daniel,
Yes they should. The question is, who is the accuser?
Once a complaint is received, the Association should verify the complaint. Once verified, and the decision taken to address it, the Association can be considered the accuser and not the person who drew their attention to it.
Tim |
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JohnB26
(South Carolina)
Posts:486
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| 03/17/2010 9:33 AM |
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Posted By DanielH1 on 03/16/2010 4:22 PM
My question is: In the opinion of the people in this forum, SHOULD the legal system give the accused these rights?
We've already debated elsewhere that the legal system DOES give the accused these rights.
But, in your opinion, do you agree or disagree that the accused should have these rights?
The Constitution of the United States of America DECREES these rights ... if you disagree with it campaign to have it changed/ammended. |
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JohnB26
(South Carolina)
Posts:486
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| 03/17/2010 9:33 AM |
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Posted By TimB4 on 03/16/2010 8:13 PM
Daniel,
Yes they should. The question is, who is the accuser?
Once a complaint is received, the Association should verify the complaint. Once verified, and the decision taken to address it, the Association can be considered the accuser and not the person who drew their attention to it.
Tim
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DanielH1
(California)
Posts:481
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| 03/25/2010 2:51 PM |
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How would a Board get proof on its own?
With something like dog poop, it is ridiculous to expect that anybody, even the Board, would have the resources to shadow John and ultimately catch his dog on video.
And, even if they did, John can easily explain: "Well, I went home right then, got a pooper scooper, came back and picked the dog poop up!" I doubt anybody would present a video with time-lapse photography to prove that the dog poop stayed there. The Board could go out and look for dog poop but it'd be hard to prove if it was Bob's dog or not. But I suppose that you could pay for a laboratory to match up dogs with poop.
The dog poop example is chosen specifically because it requires a witness. Proof, without a witness, is absurd. |
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BrianB
(California)
Posts:2381
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| 03/25/2010 3:34 PM |
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Posted By JohnB26 on 03/17/2010 9:33 AM
The Constitution of the United States of America DECREES these rights ... if you disagree with it campaign to have it changed/ammended. Please show me where the US Constitution decrees these rights in a civil contract. I have read that darn thing forwards and backwards, and see nothing about civil contracts... just a lot of malarky about government rights, states rights, and individual rights versus the government. |
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DanielH1
(California)
Posts:481
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| 03/25/2010 3:43 PM |
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| The legal cases of Applebaum and Cason provide some support to say that associations like HOAs are bound by the same "rules" as governments (e.g. individuals have rights), even in civil contracts. |
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SureshD
Posts:0
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| 03/25/2010 4:07 PM |
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To me the question is not whether one should be "allowed" as that is not up to a third party (HOA, BOD, etc.) but rather:
Should anonymous complaints be accepted by the HOA? |
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DonnaS
(Tennessee)
Posts:5671
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| 03/25/2010 5:31 PM |
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Nope, Nope and Nope.
My HOA used several methods of filing a complaint. We had a form on the website, form letters in the office and a box outside of the bulleten board. Any complaint without a contact number was disregarded and it stated so in bold letters on the forms.
All complaints were kept anonomous. The P.M. also had a recorded message that accepted phone complaints but also required a name or contact number. This prevented alot of bogus and he said, she said complaints. People have to accept responsibility for all of their actions so if you cannot identify yourselves, then the complaint was not considered. (but we did follow up on anything that did seem to be valid or serious) |
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GeorgeG5
(California)
Posts:19
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| 03/25/2010 5:45 PM |
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Brian wrote: "Please show me where the US Constitution decrees these rights in a civil contract."
No single "where" in the Constitution "decrees" the right to due process in civil cases.
Rather than spend the immense time and labor necessary to try to sketch the evolution of the concept from English Common Law to current law, I will quote a relevant, succinct passage in the "Due Process" entry at "Wikipedia" (http://en.wikipedia.org/wiki/Due_process):
"In the United States, criminal prosecutions and CIVIL CASES [my emphasis] are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Most of these rights have been incorporated under the Fourteenth Amendment to the States. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.
"This protection extends to ALL [my emphasis] government proceedings that can result in an individual's deprivation, whether CIVIL [my emphasis] or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be tantamount to cruel and unusual punishment.
"At a basic level, procedural due process is essentially based on the concept of 'fundamental fairness.' For example, in 1934, the United States Supreme Court held that due process is violated 'if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'. As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.'"
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TimB4
(Virginia)
Posts:3229
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| 03/25/2010 8:39 PM |
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Posted By SureshD on 03/25/2010 4:07 PM
Should anonymous complaints be accepted by the HOA?
No they shouldn't. There is nothing that happens within an HOA that should require an anonymous complaint. At the same time, the HOA should reply to the complainer what they found:
Complaint is not valid because rule xyz was not violated
Complaint is valid and the HOA will investigate
Tim
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GlenL
(Ohio)
Posts:3526
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| 03/25/2010 9:10 PM |
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| IMHO if the Board or MC can verify the violation independently of the initial complaint i.e. so and so’s car is leaking oil on the common element; then the Board or MC can be the complainant. If the complaint is something like Daniel postulated about the dog poop then the person who reported it is the complainant and if the person being fined wants to fight it; then they have every right to face their accuser. |
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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SureshD
Posts:0
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| 03/26/2010 3:44 AM |
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| So then if the complaint is not anonymous, can't the accused review the records and see who complained? |
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RogerB
(Colorado)
Posts:4645
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| 03/26/2010 7:00 AM |
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Posted By SureshD on 03/26/2010 3:44 AM
So then if the complaint is not anonymous, can't the accused review the records and see who complained?
Yes, the complaintant of record should be disclosed. The procedure we would suggest is:
The owner of the property alledged to be in violation should be provided a Hearing if they wish to challenge an alledged violation. At the Hearing both parties, complaintant and defendant, should be heard and present their evidence. However, the defendant should not be allowed to confront the complaintant, this is a Hearing not a Court room. It is the duty of the Hearing committee to impartially listen, get the evidence, and make their decision.
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DonnaS
(Tennessee)
Posts:5671
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| 03/26/2010 7:09 AM |
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I still disagree with this policy. It is the HOA rules/ documents that are being violated and it is the Board representing the HOA that must handle the violation and they bear the burdeon of proof, not an accuser. Having a member go before a violator is an open invitation for neighbor to go against neighbor. IF a report of some violation would escallate beyond the Board not being able to get resolution with the violation with a one on one meeting, then perhaps they can further pursue it with the accuser but I am still standing against the acuser being involved face to face with the violator. |
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RogerB
(Colorado)
Posts:4645
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| 03/26/2010 7:24 AM |
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I agree with Donna. Do not pit neighbor against neighbor!!
The complaintant of record should not be a neighbor. For the HOAs we manage if a neighbor contacts us with a complaint we investigate, document with digital phots when applicable, and send the violation letters. We are the complaintant of record and provide the testimony and evidence at a Hearing. If the HOA does not have a managing agent who performs Covenant enforcement then the Board should perform these duties and select other persons to be on the Hearing Committee. |
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DonnaS
(Tennessee)
Posts:5671
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| 03/26/2010 7:32 AM |
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Bravo Roger,
That is what I have been trying to say in my primative way. Thanks |
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BrianB
(California)
Posts:2381
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| 03/26/2010 11:38 AM |
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George: Due Process is not the same thing as a guaranteed right to face an accuser.
Also, in reference to your wikipedia article quote:
"This protection extends to ALL [my emphasis] government proceedings that can result in an individual's deprivation, whether CIVIL [my emphasis] or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials."
I would point out that you emphasized the word ALL. I, on the other hand, would emphasize the word GOVERNMENT. An HOA is not a recognized branch of the US government.
I do not believe there is a Constitutional law that requires any two civil parties, with no governmental interaction at all, to provide "right to face accuser". |
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GeorgeG5
(California)
Posts:19
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| 03/26/2010 4:36 PM |
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Brian,
In the first paragraph of your response to my post on 03/26/2010, you wrote: "Due Process is not the same thing as a guaranteed right to face an accuser."
I have NOT asserted that due process IS "the same thing as a guaranteed right to face an accuser." The right to face an accuser is only ONE of the FOUR elements of due process.
Daniel began this thread with a reference to a passage at the Website of the Adams Kessler law firm. Adams Kessler's specialty is California HOA law. One of the firm's associates was, in fact, a co-author of the largest body of California HOA law--the Davis-Stirling Act.
At the Adams Kessler Website, the key passage on due process reads as follows: “The elements of due process include: (i) giving the accused notice of the alleged violation; (ii) providing a reasonable opportunity for the person to defend themselves; (iii) knowing the identity of the accuser with an opportunity to cross-examine the witness; and (iv) giving the accused an opportunity to examine and refute the evidence. Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; Carson [sic] v. Glass Bottle Blowers (1951) 37 Cal.2d 134, 144; Civil Code §1363(h); Civil Code §1363.05(b); Corp. Code §7341(c)(3).” Please take special note of the third element in this Adams Kessler listing of the elements of due process: "(iii) knowing the identity of the accuser with an opportunity to cross-examine the witness."
In your third paragraph, you wrote: "An HOA is not a recognized branch of the US government." I nowhere said that it is. HOAs are quasi-governments that function primarily under state laws--California laws in your and my case.
I'll try to clarify the California HOA governance context for you. California law consists of 29 bodies of codes. You can find links to all 29 bodies of code at http://www.leginfo.ca.gov/calaw.html. Most of the state laws relevant to HOAs are to be found in the body of code titled "Corporations Code" and the body of code titled "Civil Code."
Most California HOAs are nonprofit corporations. If you use the link on http://www.leginfo.ca.gov/calaw.html named "Corporations Code," you'll be taken to a page headed: "CALIFORNIA CORPORATIONS CODE." Scrolling down the page, you'll find a list of links headed "PART 3. NONPROFIT MUTUAL BENEFIT CORPORATIONS." The links in this list lead to part of the California code under which most California HOAs operate.
If you use the link on http://www.leginfo.ca.gov/calaw.html named "Civil Code," you'll be taken to a page headed: "CALIFORNIA CIVIL CODE." Scrolling down the page, you'll find a list of links headed "TITLE 6. COMMON INTEREST DEVELOPMENTS." The links in this list lead to another part of the California code under which most California HOAs operate.
Please note that under the heading "TITLE 6. COMMON INTEREST DEVELOPMENTS," Chapter 2 is titled "GOVERNING DOCUMENTS." This chapter is concerned with the creation and enforcement of CC&Rs and the creation and enforcement of association operating rules. Also, please note that under the heading "TITLE 6. COMMON INTEREST DEVELOPMENTS," Chapter 4 is titled "GOVERNANCE." This chapter is concerned with elections, managers, and dispute resolution procedures.
If you read the above-referenced sections of code carefully, you'll understand why California HOAs are often classified as quasi-governments, and you'll see that the violations-hearings-fines procedures of California associations parallel those of California court procedures.
In your fourth paragraph, you wrote: "I do not believe there is a Constitutional law that requires any two civil parties, with no governmental interaction at all, to provide 'right to face accuser'." Three of the phrases ("Constitutional law," "civil parties," and "governmental interaction") in this sentence are so vague and ambiguous that I am unable to understand the sentence as a whole. I therefore am unable to venture a response to your asserted belief. |
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GeorgeG5
(California)
Posts:19
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| 03/26/2010 5:18 PM |
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Roger,
On 03/26/2010 you wrote: "The complaintant of record should not be a neighbor. For the HOAs we manage if a neighbor contacts us with a complaint we investigate, document with digital phots when applicable, and send the violation letters. We are the complaintant of record and provide the testimony and evidence at a Hearing."
The approach you have outlined above might be appropriate for some cases, but how would you handle a case like the one presented by Daniel on 03/17/2010 and 03/25/2010?
Daniel on 03/17/2010 wrote: "John's dog poops in the Common Area. Bob sees it happen. John doesn't pick up the poo. Bob doesn't confront John."
On 03/25/2010, Daniel added:
"How would a Board get proof on its own?
"With something like dog poop, it is ridiculous to expect that anybody, even the Board, would have the resources to shadow John and ultimately catch his dog on video.
"And, even if they did, John can easily explain: 'Well, I went home right then, got a pooper scooper, came back and picked the dog poop up!' I doubt anybody would present a video with time-lapse photography to prove that the dog poop stayed there. The Board could go out and look for dog poop but it'd be hard to prove if it was Bob's dog or not. But I suppose that you could pay for a laboratory to match up dogs with poop."
The hypothetical situation Daniel has described goes to the heart of the matter before us. How would you handle a case like this one fairly and reasonably without ultimately pitting "neighbor against neighbor"? |
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RogerB
(Colorado)
Posts:4645
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| 03/26/2010 7:10 PM |
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| George, We would first send the owner who does not clean up after their dog a Courtesy Notice advising of the restriction that they violated. If done a second time a Violation Notice is sent. It is not appropriate to fine based on heresay so it may require eye witness testimony for issuing a dog poop violation fine IF the owner requests a Hearing. The same problem exists for a barking dog or loud music late at night. Not all problems can be proven but they can be documented by written notice. After several notices the evidence becomes convincing when not challenged. |
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GeorgeG5
(California)
Posts:19
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| 03/27/2010 4:52 PM |
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Roger,
Thank you for your helpful reply.
You wrote: "We would first send the owner who does not clean up after their dog a Courtesy Notice advising of the restriction that they violated. If done a second time a Violation Notice is sent. It is not appropriate to fine based on heresay so it may require eye witness testimony for issuing a dog poop violation fine IF the owner requests a Hearing."
Your description, as far as it goes, seems to me unobjectionable.
Let's suppose, however, that the accused person maintains that he is innocent of the charges against him and that he requests a hearing. Furthermore, let's suppose that the accused person says that he has in the past had arguments with some of his neighbors and that he believes one (or more) of them may be the source(s) of the false dog poop accusations made against him. In addition, let's suppose that he says he has consulted a lawyer about his situation, that his lawyer has advised him that he has the right to know the identity of the alleged eye witness(es), and that his lawyer has advised him that he has the right to respond to the testimony of any accusatory eyewitness(es) at the hearing.
How would you subsequently proceed? |
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RogerB
(Colorado)
Posts:4645
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| 03/27/2010 6:47 PM |
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| George, If I was a member of the Hearing committee I would allow testimony and evidence from both sides and make an informed decision. Unless there was convincing evidence and/or testimony presented of a violation I would not vote to levy a fine. But I may be in favor of giving the alledged violator a warning. |
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