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Subject: Restraining Order and the HOA?
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NicoleO5
(California)

Posts:55


07/17/2020 8:36 AM  

There is a situation currently with our HOA. We have a director who is being harassed by a homeowner. It is well known and the board is well aware and agree it is harassement. The harassement seems to have stemmed from the homeowner who has consistently and knowingly has been committing the same rule infractions despite notices, hearings ( which he never attended ) and several fines. This issue is still going on. The director has had emails, texts, notes on the door, stalking and following them to their unit. He has been caught coming to the door, it’s on video, also walking by and looking into Windows. He does not live anywhere near this unit. There have been threats made “if you don’t resign this will get uglier”.. there have been police called 3 times. One board member was told by the harasser he is harassing this person to get them off the board. There also was an issue that caused this angry owner to find support with other owners. SO now he has “cronies” who also call this director names etc. It’s ugly.

This director is asking for a restraining order to be provided by the HOA. Davis Sterling is pretty clear it would back it. The rest of the board is not completely on board. Is this something your board or HOA has ever gone through?
NicoleO5
(California)

Posts:55


07/17/2020 8:51 AM  
https://www.davis-stirling.com/HOME/Restraining-Order-Harassment
MarkW18


Posts:1290


07/17/2020 8:59 AM  
An association can protect its officers and/or directors, but such action must be approved by its governing body. If not, the best of action would be to resign and proceed with an action against the offending party.
MarkW18


Posts:1290


07/17/2020 9:02 AM  
Posted By NicoleO5 on 07/17/2020 8:51 AM
https://www.davis-stirling.com/HOME/Restraining-Order-Harassment



The link you posted is an opinion of an attorney whose firm specializes in HOA law. The links posted in the opinion are from the Code of Civil Procedures, not the Davis-Stirling Act.
NicoleO5
(California)

Posts:55


07/17/2020 9:05 AM  
By the governing body? You mean the membership or the Board of Directors?
MarkW18


Posts:1290


07/17/2020 9:28 AM  
The governing body of a HOA is its Board of Directors.
AugustinD


Posts:3683


07/17/2020 9:48 AM  
Posted By NicoleO5 on 07/17/2020 8:36 AM

This director is asking for a restraining order to be provided by the HOA. Davis Sterling is pretty clear it would back it. The rest of the board is not completely on board. Is this something your board or HOA has ever gone through?
Yes. In another state (which is not California), a director asked the board to have the HOA reimburse him for the cost of filing for a restraining order. I believe the cost of filing was either under $50 or certainly under $200. The board agreed to do so. Some directors were not wild about it, though. The director filed with the court pro se and was successful in winning the restraining order. This was thanks to considerable documentation by the HOA manager and the director. The director even persuaded the magistrate to issue a finding that the perp had been harassing the HOA (manager, other board members in general, agents of the HOA, et cetera). Though the restraining order was legally only effective for the one director.

The director in question in this thread should consider not pursuing this restraining order pro se. Instead, he or she should ask the board to have the HOA attorney do this. But it will likely cost north of $5000.

The board should consider having the HOA attorney send the perpetrator a warning letter first, saying that if he does not stop, it will seek a restraining order against him.

Good job citing the Davis-Stirling.com page that talks about this. California Civil Code Section 527.8 is crystal clear that HOA boards may authorize pursuit of a restraining order on behalf of a director.
LetA
(Nevada)

Posts:997


07/17/2020 11:27 AM  
A restraining order is only worth the paper it is printed on. Set up video surveillance, get audio video recordings of this guy committing the acts. save all correspondences from this person. You might have to as an individual file a criminal complaint against the combatant with the local prosecutors office. whether or not they pursue charges is a whole other ballgame.

Consult with an attorney, you may be able to pursuit civil litigation from this person.
MelissaP1
(Alabama)

Posts:9446


07/17/2020 3:16 PM  
I don't think this should be an HOA related thing at all. It's best to call the police and that person file their own restraining order against this person. The HOA is a corporation and ALL your neighbors after all. They all don't want to be involved in this. It's not really a HOA issue as much as a personal one.

Now yes it does involve that person being a HOA board member. However, a car salesman could have the same issue with a customer. Does the Dealership file a restraining order or the salesman?

The HOA can't restrict someone from access from their home. A restraining order may cross those lines. Especially if it's on common areas. You can imagine this "disturbed" person may simply stay across the street on common area and still harass the board member.

No reason the HOA can't help the board member by bearing witness or calling when person is violating the order. That is what they should do. It is up to the individual to file the restraining order and let people know there is one. It is best people know this so they know the situation can be dangerous and to call police.

A HOA doesn't have a "bubble" around it protecting members. It is still part of the "real" world. Real world laws apply.

Former HOA President
NicoleO5
(California)

Posts:55


07/17/2020 4:07 PM  
Posted By MelissaP1 on 07/17/2020 3:16 PM
I don't think this should be an HOA related thing at all. It's best to call the police and that person file their own restraining order against this person. The HOA is a corporation and ALL your neighbors after all. They all don't want to be involved in this. It's not really a HOA issue as much as a personal one.

Now yes it does involve that person being a HOA board member. However, a car salesman could have the same issue with a customer. Does the Dealership file a restraining order or the salesman?

The HOA can't restrict someone from access from their home. A restraining order may cross those lines. Especially if it's on common areas. You can imagine this "disturbed" person may simply stay across the street on common area and still harass the board member.

No reason the HOA can't help the board member by bearing witness or calling when person is violating the order. That is what they should do. It is up to the individual to file the restraining order and let people know there is one. It is best people know this so they know the situation can be dangerous and to call police.

A HOA doesn't have a "bubble" around it protecting members. It is still part of the "real" world. Real world laws apply.





Not so sure. The DSavis Sterling Act here in Ca. Clearly states the Board although voluntary is a protected employee and therefore could be
Seen as an HOA issue. This issue is not between two people. This is because of rule enforcement and a few other board related items. 100% of this would not be happening to this person had he not been on the board. WHy is he being selected out? I don’t know but this 1 person is not responsible for the rules and the enforcement. The harasser keeps saying it is, and owners don’t understand that its not a one person show.

https://www.davis-stirling.com/HOME/Restraining-Order-Harassment
NicoleO5
(California)

Posts:55


07/17/2020 4:07 PM  
Posted By MelissaP1 on 07/17/2020 3:16 PM
I don't think this should be an HOA related thing at all. It's best to call the police and that person file their own restraining order against this person. The HOA is a corporation and ALL your neighbors after all. They all don't want to be involved in this. It's not really a HOA issue as much as a personal one.

Now yes it does involve that person being a HOA board member. However, a car salesman could have the same issue with a customer. Does the Dealership file a restraining order or the salesman?

The HOA can't restrict someone from access from their home. A restraining order may cross those lines. Especially if it's on common areas. You can imagine this "disturbed" person may simply stay across the street on common area and still harass the board member.

No reason the HOA can't help the board member by bearing witness or calling when person is violating the order. That is what they should do. It is up to the individual to file the restraining order and let people know there is one. It is best people know this so they know the situation can be dangerous and to call police.

A HOA doesn't have a "bubble" around it protecting members. It is still part of the "real" world. Real world laws apply.





Not so sure. The DSavis Sterling Act here in Ca. Clearly states the Board although voluntary is a protected employee and therefore could be
Seen as an HOA issue. This issue is not between two people. This is because of rule enforcement and a few other board related items. 100% of this would not be happening to this person had he not been on the board. WHy is he being selected out? I don’t know but this 1 person is not responsible for the rules and the enforcement. The harasser keeps saying it is, and owners don’t understand that its not a one person show.

https://www.davis-stirling.com/HOME/Restraining-Order-Harassment
NicoleO5
(California)

Posts:55


07/17/2020 4:09 PM  
From DSA. Who is Protected? Where appropriate, a homeowners can personally seek a restraining order against a neighbor who harasses and threatens them with harm. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property to be "protected employees." The association, as an employer, may seek an order protecting any board member, committee member, employee, or contractor who has been assaulted, battered, stalked or received credible threats of violence. (Code Civ. Proc. §527.8.) The board may pay the legal expense with the association's monies.
MelissaP1
(Alabama)

Posts:9446


07/17/2020 4:14 PM  
They are NOT employees of the HOA. The HOA doesn't have employees. They have VOLUNTEERS.

Former HOA President
JohnC46
(South Carolina)

Posts:9678


07/18/2020 10:12 AM  
There seems to be a distinction meaning if the harassment is taking place while the BOD Member is performing BOD work (such as at a BOD Meeting), then the BOD should step in otherwise it is between the two owners and not a BOD responsibility.
GeorgeS21
(Florida)

Posts:2902


07/18/2020 11:00 AM  
I probably have missed some of the subtlety of this situation - BUT, if there is a director who is being threatened or harassed it is the responsibility of that person to report the harasser to the police. Sure, they should inform the other directors, if for no other reason to allow the other directors to be on their guard.

This is, again, a local police/sheriff matter.

Am I missing something?
MarkW18


Posts:1290


07/18/2020 11:29 AM  
First, I am going out on a limb and thinking the person is yourself.

Two suggestions. One, poise your question to this link: https://www.davis-stirling.com/Newsletter-Mailer and see what response you get. Second, contact your association's attorney and poise the question. Hypothetically, what if this goes really south and the Board, at this point in time chooses not to do anything. The Association and/or the directors could be on the hook. Not a position I would want to find myself personally in.

You already have one attorney's opinion that an Association can pay for such a restraining, but the Board, as its governing body, must vote for such action.
MichelleC8
(California)

Posts:45


07/20/2020 12:08 PM  
. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property to be "protected employees."
MarkW18


Posts:1290


07/20/2020 12:20 PM  
Posted By MichelleC8 on 07/20/2020 12:08 PM
. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property to be "protected employees."



You need to be very careful. That is not what the statue says. What you posted is the opinion of one attorney in the United States of their interpretation. The vast majority of HOA are NOT employers and do not have employees working for them. For the HOA's that do hire employees, this statue may apply to them.
AugustinD


Posts:3683


07/20/2020 12:26 PM  
Posted By MichelleC8 on 07/20/2020 12:08 PM
. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property to be "protected employees."
Board members, volunteers, independent contractors are all "agents" of the HOA. "Agents" has a good deal of meaning in the legal world. So yes, the HOA as a corporation has some legal obligation to ensure they are safe. For the HOA to pay for a restraining order against a harassing individual may be completely legally defensible and appropriate in many situations
SharonW3
(North Carolina)

Posts:30


07/23/2020 1:24 PM  
Been there, done that! I have the tee shirt and matching hat. My harasser started coming to my place of employment and writing letters to the company's CEO. It all came to a head when my storm door was ripped off the hinges because I wasn't answering the door. I filed my own no contact order (free). My company gave me the needed time to file & appear in court with pay. The CEO gave me an award of achievement for being involved in my community (Home Depot). The harasser eventually got tired of the police showing up at her door and moved. I stood my ground. The neighbors kept close eyes on me and were at the ready if I ran into any trouble. This person had an issue with me and used the HOA, etc. to vent her hatred vile & racist rants. "Evil wins when good men do nothing" My advice, do what you have to do to protect yourself and don't look back. Good luck!
MarkW18


Posts:1290


07/23/2020 2:14 PM  
Posted By AugustinD on 07/20/2020 12:26 PM
Posted By MichelleC8 on 07/20/2020 12:08 PM
. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property to be "protected employees."
Board members, volunteers, independent contractors are all "agents" of the HOA. "Agents" has a good deal of meaning in the legal world. So yes, the HOA as a corporation has some legal obligation to ensure they are safe. For the HOA to pay for a restraining order against a harassing individual may be completely legally defensible and appropriate in many situations



Unfortunately, as the OP stated in their first post, "the rest of the board are not completely on board". We live in a republic and we elect people to act on our behalf.
JohnC46
(South Carolina)

Posts:9678


07/23/2020 2:20 PM  
Posted By MarkW18 on 07/23/2020 2:14 PM
Posted By AugustinD on 07/20/2020 12:26 PM
Posted By MichelleC8 on 07/20/2020 12:08 PM
. The statute also considers board members, volunteers, and independent contractors who perform services for an association on association property to be "protected employees."
Board members, volunteers, independent contractors are all "agents" of the HOA. "Agents" has a good deal of meaning in the legal world. So yes, the HOA as a corporation has some legal obligation to ensure they are safe. For the HOA to pay for a restraining order against a harassing individual may be completely legally defensible and appropriate in many situations



Unfortunately, as the OP stated in their first post, "the rest of the board are not completely on board". We live in a republic and we elect people to act on our behalf.




I agree. If one does not recall or replace the BOD or initiate legal action, then go along with them.
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