Is it time to hire an attorney?

Started by KimM8 • 34 replies • 3573 views

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KimM8 (California)
Posts: 109

Posted:

We contiue to get violation notices from our BOD, the newest was to inform us that a hearing schedule for tomorrow has been moved to Friday March 26th. We never received notice of the hearing tomorrow and I spoke to the management co. who told me that someone keeps reporting us which is why we keep getting violation notices. I can understand how someone would make the assumption we are using our washer and dryer, because we still have it on our property. However, I have e-mailed, called, attended several meetings all of which it's been indicated that this was resolved.

Yet, we keep getting the violation notices. She suggested I contiue to e-mail and attend the hearings. This is a waste of my time and I told her the board has a short-term memeory problem.

I am thinking of hiring a lawyer to request they stop "harassing" us. But would prefer to take another form of action to get them to stop.

Thoughts?

I feel like they may be entering my property, storage closet on our balcony. She did tell me the balcony was an exclusive use common area, but that they follow the law. I am wondering if we lock that door if the notices would stop...?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Kim,

I would think by now that you would have hired an attorney to put this to an end. It is going to be cheaper than to continually rack up fines and the time spent on fighting with this Board. What is your holdup? You apparently are not making any headway so bite the bullet and get legal help.

KimM8 (California)
Posts: 109

Posted:

They haven't started to fine us, yet. I did e-mail an attorney today, who I met with a few years ago. He is a great guy. I am also sending a summary e-mail the board and management co. from a conversation I had with them today. I have requested meeting minutes, with they haven't been sent.

At the next meeting, can I bring in a tape recorder?

I haven't hired one yet, because I don't want retaliation...

DanielH1 (California)
Posts: 482

Posted:

(Actually, it's time to get rid of that useless washer and dryer.

)

You could hire a lawyer but the Board probably won't change. If the HOA is receiving new complaints about the washer and dryer, they can re-investigate and address the issue again. It isn't really harassment if they have a legitimate reason.

Find out who is complaining and placate them. Or get the rule changed.

KimM8 (California)
Posts: 109

Posted:

I don't mind the rule. We don't use the washer and dyrer. I don't want to get rid of it because it's something we can use at another location in the future. I know that would be the easy solution, but not the best solution. The lawyer I spoke to said he would write a letter on our behalf for $500. That is of course more expensive then getting rid of the washer and dryer.

I am going to ask them if the board would like to compensate me for making me get rid of my washer and dryer, when I am not violating any rules.

FredN (California)
Posts: 87

Posted:

Where in Ca. are you lacated?

KimM8 (California)
Posts: 109

Posted:

San Diego County

TimB4 (Tennessee)
Posts: 21,046

Posted:

Kim,

Request that the Board inform the complainer that the units are not in use and therefore, there is no violation of the rules. This may have the complaints stop.

Tim

KimM8 (California)
Posts: 109

Posted:

We just got back from an impromtu hearing. They said we need to demo the plumbing and electrical work done to install the washer and dyer, or the association would be fined. Another homeowner said he called the city about that and they said that wasn't true. I told the board that the city said we could have a permit but that the board stopped the process, that we aren't a liablity because we don't use the connections and so the city wouldn't fine us or them. Especially since the city "approved" them.

I asked for them to send me something in writing explaining the process and the reasoning before I would commit to anything being done. Such as removing the connections.

The treasuer was very emotional, upset, and rude. She immedietly told us we weren't working with them and I replied that we have sent e-mails which have never been answered. I told her all of the violation notices we received have only said the use of washer and dryer is prohibited, never did it say anything about removing hook-ups. Therefore we are in compliance.

It was a first come first sevre meeting and there were four other homeowners there to talk aboit washers and dryers.

They asked us why we haven't complied since a letter that went out in 2008 and I told them at the time the BOD president wasn't in compliance, that we did comply once a letter from the lawyers sent to all homeowners went out was received a year after. That prior to that the rule wasn't being enforced equally so it wasn't valid. They said they have been nice to use for not fining us for having the hook-ups. I reminded them that no notice has been given about removing the hook-ups.

The treasurer told us she was "hurt" by our comments that no one was working with us, because she has always tried to get us into the meetings.

A homeowner who was also there said she would put notices on her guests car for having guests park in a vacant spot, but has cuaght the treasurer having guests use that same spot.

Another homeonwer there said his unit had been demoed already and he was upset because he felt they took advantage of him (he is foreign).

I asked them what was the bst way to communicate with them since sending e-mails wasn't mutually working. The secretary said they would in the future at least repond that they were looking into/working on the issue.

I am very upset about the meeting. I don't plan on committing to anything until I get something official in the mail, stating the reasoning and until the reasoing has been verified.

RickW (Illinois)
Posts: 169

Posted:

Ask the Board for a clear cut Rule on this. Ask that the Rule be adopted into the Rules and Regulations. Comply with whatever the rule is....be done with the subject.

In my humble opinion, way way too much time is being relegated on a minor subject. Please, you have no real good reason for not getting rid of the washer and dryer if that is what is required. To say you want to keep it because it can be of use in the future is lame. Are you planning on moving in the near future to a location where the washer and dryer could be used? If that's the case, find a relative or friend willing to store it for you or get rid of it...

I truly fail to see why you are allowing this issue to cause you such grief...

KimM8 (California)
Posts: 109

Posted:

I was thinking that getting rid of the washer and dryer would make us done with this. They said they believe us that we are not using the washer and dryer. Now they want us to comply with removing the hook-ups. seem's fair, but I want a good reason for it, and an honest one, before I waste my money on that.

I don't want to be bullied by the board either, and I want them to know that I can't be bullied. But I can't have both, meaning no stress.

GlenL (Ohio)
Posts: 5,491

Posted:

In CA the BOD is required to follow due process and hold a hearing before they can impose a fine and the accused has the right to know the name of their accuser and to question them. You can also ask for arbitration which doesn’t require an attorney but the BOD will probably have one.

PS Eventually the seals on the washer will dry out and crack (especially in a hot storage room) making it worthless; better to sell them and buy new ones if you ever need them.

Studies show that 5 out of 4 people have problems with fractions

KimM8 (California)
Posts: 109

Posted:

Thanks for the info Glen. I guess it's time. Once I get something in writing for our files we will proceed with removing the hook-up's. Then we can be done with it.

DanielH1 (California)
Posts: 482

Posted:

Glen,

Do you have a pointer to law that for (1) the right to know the name of their accuser and (2) the right to question their accuser?

www.davis-stirling.com states this but doesn't back it up with law. I wonder if www.davis-stirling.com wandered into opinion/recommendation on this one and it isn't explicitly required.

KimM8 (California)
Posts: 109

Posted:

I called the city and they said they will not be fining anyone. They said our BOD has been calling to get the city to start fining people, but have been told several times that the city would prefer for the association to take care of this on their own. I don't appreciate the lying and intimidation...

DanielH1 (California)
Posts: 482

Posted:

It sounds like the situation has degenerated or close to that point. At a certain point, there is so much water under the bridge that the Board and homeowners are just bickering. There's no resolution but there's always a next step, a new gambit to try, some retaliation to attempt. Everybody's feels compelled to protect their rep, everybody is quoting laws and rules and regs, everybody is giving hurt but rarely avoid getting hurt back.

FranD (Georgia)
Posts: 102

Posted:

You can bring a rape recorder but have to get everyone's permission to use it. Someone told me it was called wire tapping if you didn't get their approval.

KimM8 (California)
Posts: 109

Posted:

They tried to bring into the conversation how they "worked with me" to keep the washer and dryer after I had brain surgery. I didn't appreciate that because the president at the time was still using her washer and dryer, and still is. I was asking for facts. What to do and why, they kept bringing up emotional topics.

How we weren't working with them...
How they were helpful after my surgery
How they could be fining us now, but haven't yet
etc

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By DanielH1 on 03/11/2010 10:15 AM
Glen,

Do you have a pointer to law that for (1) the right to know the name of their accuser and (2) the right to question their accuser?

www.davis-stirling.com states this but doesn't back it up with law. I wonder if www.davis-stirling.com wandered into opinion/recommendation on this one and it isn't explicitly required.

Daniel, again I’m not an attorney but davis-stirling.com cites two court cases (which I didn’t read), Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; Carson v. Glass Bottle Blowers (1951) 37 Cal.2d 134, 144; as their authority on the matter. I believe while not an actual law enacted by the legislature it is case law and sets the precedent which other courts look to.

From Wikipedia:
Case law is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies; regulatory law which are regulations established by governmental agencies based on statutes; and in some states, common law which are the generally accepted laws carried to the United States from England. The rulings resulting from trials and hearings which are not selected as 'courts of first impression' do not become case law and cannot be precedents for future court decisions.

Studies show that 5 out of 4 people have problems with fractions

DanielH1 (California)
Posts: 482

Posted:

As near as I can tell, www.davis-stirling.com is totally wrong on this.

Applebaum v. Board of Directors is a case where a doctor sued a hospital for re-instatement of his medical privileges after he had them taken away in the course of a fair hearing and fair procedure by the hospital. The court sided with the doctor because: (1) the so-called poor decisions were a matter of having a different but reasonable medical opinion than the hearing committee had; (2) the doctor needed help from other doctors in some cases but those doctors were not available; (3) the doctor requesting the investigation was also on the hearing committee; and, (4) the hearing committee members made disparaging remarks about the doctor. Basically, the court said that the doctor had the right to a fair hearing and there was evidence to suggest that there was a possibility that he did not get one. The case did not say anything about the doctor's rights to know the accused or be able to question his accusers: in fact, the doctor already knew.

http://www.allianceforpatientsafety.org/applebaum.pdf

Carson v. Glass Bottle Blowers is a case involving a labor union from 1951. I couldn't find the text of it on the Internet. But, if it is as off point as Applebaum and, considering that it does not involve an HOA, it is fair to say is likely to be off point.

While I normally will accept the opinion of a lawyer at face value, I think that Adams Kessler (and www.davis-stirling.com) are totally wrong. Perhaps it is a good idea or a legal recommendation but it is, as near as I can tell, absolutely not required by law or by precedent.

But, of course, I don't blame Glen. He's just reporting from a web site that normally has lots of merit but just happens to dead wrong and have no legal merit for two of their assertions (out of thousands). Maybe they messed up or made a legal mistake. Maybe I'll contact them about it.

DanielH1 (California)
Posts: 482

Posted:

It also seems that the correct case may be Cason v. Glass Bottle Blowers, not Carson v. Glass Bottle Blowers.

I submitted a request to Adams Kessler (www.davis-stirling.com) to either mark it as a recommendation or provide citations and explanations.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Can anyone tell me why a 60 year old case law is being stated here? I see no relevance to Kim's washer and dryer issue, which is what this is supposed to be. Sorry guys.

GeorgeG5 (California)
Posts: 19

Posted:

At the Adams Kessler Web site, the 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).”

Of this passage, DanielH1 writes: “As near as I can tell, www.davis-stirling.com is totally wrong on this. . . . The case did not say anything about the doctor's rights to know the accused or be able to question his accusers. . . . While I normally will accept the opinion of a lawyer at face value, I think that Adams Kessler (and www.davis-stirling.com) are totally wrong. Perhaps it is a good idea or a legal recommendation but it is, as near as I can tell, absolutely not required by law or by precedent.”

The passage on due process at the Adams Kessler site is, however, well-grounded in the rules of law.

We should first of all remember that--when levying assessments and fines, placing liens, and suspending members' privileges--association boards function as "quasi-governments." Richard Thompson, in an essay titled "HOA Rule Tone & Texture," puts it this way: "HOAs are quasi-governments that collect mandatory fees to pay for services, and enforce architectural standards and rules in the same way that any government can. Like other forms of government, if you choose to live there, opting out of fees and controls is not an option. When you buy into an HOA, you automatically agree to be subject to its authority." (http://realtytimes.com/rtpages/20090204_hoatone.htm)

An accused HOA homeowner's right to due process and his or her right to a fair and impartial hearing ultimately stem from the Sixth Amendment to the United States Constitution. That amendment assures "the accused . . . the right to a speedy and public trial, by an impartial jury. . . ." It also mandates that the accused shall "be informed of the nature and cause of the accusation" and that the accused "be confronted with the witnesses against him. . . ."

The reference to "Applebaum v. Board of Directors" at the Adams Kessler site seems appropriate because the plaintiff in that case contended that his hospital's hearing procedure was unfair--that his case had not been heard by an impartial tribunal. In turn, the California Court of Appeal found that the hospital's "investigation was not conducted by state employees insulated from the adjudicatory body by layers of public bureaucracy; it was done by a group which included the instigator of the charges, had overlapping membership in the body . . . which reviewed both the initial and final decisions and to which the majority of the formal adjudicators later belonged. . . . .” The Court consequently concluded: "The question before us is whether this situation . . . presents a violation of fair procedure rights to an impartial tribunal by virtue of a practical probability of unfairness. We hold that it does." (http://www.allianceforpatientsafety.org/applebaum.pdf)

The reference to "Cason v. Glass Bottle Blowers Assn." at the Adams Kessler site seems to me equally appropriate. The Trial Court had found that the plaintiff "had been denied the right to know the charges against him, to confront his [37 Cal.2d 143] accusers, to cross-examine them and to refute their evidence, and it concluded that he had been wrongfully expelled [from the Glass Bottle Blowers Assn.]." The California Court of Appeal in turn held that “It is a fundamental principle of justice that no man may be condemned or prejudiced in his rights without an opportunity to make his defense, and this principle is applicable not only to courts but also to labor unions and similar organizations.” It added that “authorities recognize that such a trial includes the right to notice of the charges, to confront and cross-examine the accusers, and to examine and refute the evidence.” The Court of Appeal concluded: "That the Clerk of this Court is hereby directed to issue a peremptory writ of mandate commanding defendants to afford plaintiff a full and fair hearing or to reinstate him to membership in the Glass Bottle Blowers Association of the United States and Canada and in Local Union #190 thereof" (http://www.lawlink.com/research/CaseLevel3/3516)

In this latter opinion, note the key phrases “fundamental principle of justice” and “similar organizations.” The Adams Kessler citation of these cases therefore seems justified.

DanielH1 (California)
Posts: 482

Posted:

George, I'm happy that you answered and you did provide much more information than I had before.

Your arguments are much better arguments. I really think that Adams Kessler should update their site.

I still think that Applebaum is irrelevant at least in relation to (iii) and (iv). Your argument doesn't seem to dispute that.

I didn't have access to Cason so I couldn't really say what is in it. But you seem to have access to it and it seems to have more relevance.

I'd say that Cason provides a strong argument that (iii) and (iv) are required. It isn't absolute proof but it is a strong argument.

So, I would say that I'm reversing myself and that Adams Kessler site is correct.

I'd like to Adams Kessler update their site with your (George's) argument. That would satisfy me.

Could you provide a link to the text with Cason? That'd be very helpful.

DanielH1 (California)
Posts: 482

Posted:

Oops, Cason is at:

http://www.lawlink.com/research/CaseLevel3/3516

GeorgeG5 (California)
Posts: 19

Posted:

DanielH1,

Over the last five or six months I have at times sampled the postings at this forum, but until 3/14/2010 I had not commented on any of them. The alleged board and managerial actions described in some of the postings I have read are, from the standpoint of the law and from the standpoint of fundamental fairness, dismaying. Over and over I have read anguished posts alleging what amounts to gross denials of fairness and due process. For example, KimM8, a California resident, on 3/10/2010 wrote: "We contiue to get violation notices from our BOD, the newest was to inform us that a hearing schedule for tomorrow has been moved to Friday March 26th. We never received notice of the hearing tomorrow and I spoke to the management co. who told me that someone keeps reporting us which is why we keep getting violation notices." On 3/11/2010, KimM8 added: "We just got back from an impromtu hearing. . . . I asked them what was the bst way to communicate with them since sending e-mails wasn't mutually working. The secretary said they would in the future at least repond that they were looking into/working on the issue. I am very upset about the meeting. I don't plan on committing to anything until I get something official in the mail, stating the reasoning and until the reasoing has been verified."

Reading subsequent postings in this thread, I was relieved to find GlenL suggesting a possible effective response by KimM8: "In CA the BOD is required to follow due process and hold a hearing before they can impose a fine and the accused has the right to know the name of their accuser and to question them." As an authority supporting the course he had suggested, GlenL in a later post wrote: "I’m not an attorney but davis-stirling.com cites two court cases (which I didn’t read), Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; Carson v. Glass Bottle Blowers (1951) 37 Cal.2d 134, 144; as their authority on the matter. I believe while not an actual law enacted by the legislature it is case law and sets the precedent which other courts look to."

In a later post, you dismissed the position Adams Kessler (davis stirling.com) had taken: "I think that Adams Kessler (and www.davis-stirling.com) are totally wrong. Perhaps it is a good idea or a legal recommendation but it is, as near as I can tell, absolutely not required by law or by precedent."

On reading your response I felt compelled to counter this and other of your remarks because they, if allowed to pass unchallenged, might cause many frustrated forum readers (Californian or National) to subsequently not avail themselves of a powerful adversarial argument they might very much need in attempts to deal with uninformed or excessively authoritarian boards and/or managers.

At the Adams Kessler Web site, the 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).”

My understanding of the function of the citations following the Adams Kessler listing of the four elements of due process appears to differ from your understanding. It seems to me that the writer of the passage in question expects us to understand that, if we read through all of the cited legal sources [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)], we will ultimately find passages justifying the four-element definition formulated by Adams Kessler.

In response to my counter-post, you wrote: "I still think that Applebaum is irrelevant at least in relation to (iii) and (iv)." In this statement you seem to be saying that you expect each court opinion (for example, "Applebaum v. Board of Directors") cited by Adams Kessler to contain passages referring to all four elements of due process. I, on the other hand, expect the documents in the aggregate to support the Adams Kessler listing of the four elements of due process.

"Applebaum v. Board of Directors" contains the following statements: "The essence of the concept of fair procedure, like that of due process, is fairness. Adequate notice of charges and a reasonable opportunity to respond are basic to both sets of rights." The last sentence justifies Adams Kessler's first two listed elements--"(i) giving the accused notice of the alleged violation; (ii) providing a reasonable opportunity for the person to defend themselves."

"Cason v. Glass Bottle Blowers Assn." contains the following opinion: "[The plaintive] had been denied the right to know the charges against him, to confront his accusers, to cross-examine them, and to refute their evidence. . . ." This sentence justifies Adams Kessler's last two listed elements--"(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."

It is worth noting that an Oklahoma court's per curiam decision cites "Cason v. Glass Bottle Blowers Assn." in dealing with similar matters. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ok&vol=/supreme/1957/&invol=1957ok260)

MaryA1 (Arizona)
Posts: 7,043

Posted:

George,

Of course the firm of Adams-Kessler knows a lot more about the law than I do (I'm not an attorney); however it seems to me they left out one key ingredient of due process. The appeal should not be made to the accuser but rather to an independent third party. However, in the majority of HOAs the BOD makes the accusation and also hears the appeal. This is NOT the way it should happen. And, although Adams-Kessler states the defendant should know the identity of the accuser this is not the law in most states nor is it written in most assn gov docs. AZ passed a law several years ago which states that if the person receiving the violation notice sends a written response to the assn w/i 10 days he shall receive a response from the BOD which shall include the name of the person who observed the violation.

DanielH1 (California)
Posts: 482

Posted:

George,

I ultimately agreed with you. I only wish that Adams Kessler would have put arguments such as yours on their web site, rather than having me (and, doubtlessly, others) not find enough information on the legal justification for their assertions. I don't think that it is reasonable of them to assert something and then expect non-lawyers to (1) find the text of the relevant cases, (2) read the cases, (3) cherry-pick the support for Adams Kessler's conclusions and (4) convince themselves that Adams Kessler is correct. I think that that's too much to ask of readers.

I am sorry that you are offended by much of the discussion on HOA Talk and my statement specifically. In Kim's case, I don't think that it is reasonable to expect her neighbor report Kim's violation, then show up to Kim's hearing, endure cross-examination from Kim, have Kim be very angry with her and then always be afraid that Kim will get her revenge through anonymous acts of property damage.

I am sympathetic to your point of view. But, for these discussions to be useful, we have to argue about the minimal that HOAs are required to do, not what HOAs should do. And, in some (many) cases, the HOAs and people involved are so dysfunctional that the mimimum is the best that can be accomplished.

GeorgeG5 (California)
Posts: 19

Posted:

Mary,

As I said in my second post in this thread, I have been reading forum posts at HOATalk.com for approximately five or six months. Over that period, I have found your posts informative and wise. I hope that the responses I am about to make to some of your remarks on due process will not appear to you as anything but respectful. I mean them to be so.

First, you wrote: "Of course the firm of Adams-Kessler knows a lot more about the law than I do (I'm not an attorney); however it seems to me they left out one key ingredient of due process. The appeal should not be made to the accuser but rather to an independent third party. However, in the majority of HOAs the BOD makes the accusation and also hears the appeal. This is NOT the way it should happen."

I wonder whether you are in fact right in asserting that "in the majority of HOAs the BOD makes the accusation." In my admittedly limited personal experience, a minority of such accusations are INITIATED by association boards of directors. Instead, it seems to me that members of associations usually call what they consider violations of association CC&Rs or association rules to the attention of boards of directors, and the boards of directors then respond to the accusations made by holding hearings. For example, a neighbor of Mr. X complains to the board that Mr. X's frequent and loud parties are a nuisance; they are keeping him and his wife awake at night. In response to this accusation, the board holds a hearing to determine the validity of the neighbor's accusation.

If Mr. X's accuser is a member of the board, he or she should during the board hearing be allowed to present evidence supporting his accusation, but he should be required to recuse himself from the judgmental phase of the hearing. If he does recuse himself, the conflict of interest you referred to will be avoided (i.e, "The appeal [will] not be made to the accuser but rather to an independent third party [the board]").

This very kind of procedural error was at the heart of one of the cases cited by Adams Kessler--"Applebaum v. Board of Directors." In that case, as I noted in a previous post, the California Court of Appeal in part found that the hospital's "investigation . . . was done by a group which included the instigator of the charges. . . . .” The Court, for this and other reasons, consequently concluded: "The question before us is whether this situation . . . presents a violation of fair procedure rights to an impartial tribunal by virtue of a practical probability of unfairness. We hold that it does."

You also wrote: "And, although Adams-Kessler states the defendant should know the identity of the accuser this is not the law in most states nor is it written in most assn gov docs." With all due respect, I think that it is indeed a requirement in ALL states. The elements of due process are guaranteed by the Sixth Amendment of the United States Constitution ("the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the STATE and DISTRICT [my emphases] wherein the crime shall have been committed; . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him. . . "). Because due process is in the United States a “fundamental principle of justice,” individual states do not therefore have to create statutes for it to be a requirement in their judicial proceedings. Ditto for "assn gov docs" and association hearings.

Finally, you wrote that "AZ passed a law several years ago which states that if the person receiving the violation notice sends a written response to the assn w/i 10 days he shall receive a response from the BOD which shall include the name of the person who observed the violation." I applaud Arizona for passing such a law, not because I think that accused association members in Arizona would have been without the right to due process if the law had not been passed. Your legislature was in this regard being wisely pragmatic by more specifically defining ("written response," "w/i 10 days," etc.) necessary actions by both the accused and the board. However, the requirement that accused persons must "receive a response from the BOD which shall include the name of the person who observed the violation" was in itself already a constitutional necessity even before the passage of the amplifying Arizona law.

HB (Oregon)
Posts: 143

Posted:

Quote:

Posted By KimM8 on 03/10/2010 11:22 AM
We contiue to get violation notices from our BOD, the newest was to inform us that a hearing schedule for tomorrow has been moved to Friday March 26th. We never received notice of the hearing tomorrow and I spoke to the management co. who told me that someone keeps reporting us which is why we keep getting violation notices. I can understand how someone would make the assumption we are using our washer and dryer, because we still have it on our property. However, I have e-mailed, called, attended several meetings all of which it's been indicated that this was resolved.

Yet, we keep getting the violation notices. She suggested I contiue to e-mail and attend the hearings. This is a waste of my time and I told her the board has a short-term memeory problem.

I am thinking of hiring a lawyer to request they stop "harassing" us. But would prefer to take another form of action to get them to stop.

Thoughts?

I feel like they may be entering my property, storage closet on our balcony. She did tell me the balcony was an exclusive use common area, but that they follow the law. I am wondering if we lock that door if the notices would stop...?

Hi Kim,
Seriously, it does sound like you are trying to be difficult to get your point across. It doesn't matter who did what or who else was violating the rules ... make sure you are not. I don't see that the BOD is "harrassing" you at all, merely trying to get the washer/dryer situation resolved. I agree that they are trying to work with you since you have not been fined.

Why do you need proof that the hookups need to be disconnected? Just do it, is it that hard? If it were me I would either sell the washer/dryer or disconnect the hookups. Who has time for this stuff? You are just as much of the problem as the BOD.

GeorgeG5 (California)
Posts: 19

Posted:

Daniel,

I have repeatedly read my post and I can't for the life of me find anything in it that should have led you to believe that I have been, as you seem to have concluded, "offended by much of the discussion on HOA Talk." Nor have I been able to find anything in my post that suggests that I was "offended" by any statements you have made.

I did disagree with some of your remarks, but only because, as I said, "they, if allowed to pass unchallenged, might cause many frustrated forum readers (Californian or National) to subsequently not avail themselves of a powerful adversarial argument they might very much need in attempts to deal with uninformed or excessively authoritarian boards and/or managers."

Across the country, many association members are being blatantly denied their due process rights by dictatorial boards and managers. Those frustrated and beleagured association members need to know that they have due process rights; they need to have an understanding of what the concept of due process involves; and they need to be encouraged to demand their due process rights when they feel that those rights are being ignored in association adversarial proceedings.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Charles,

Thx for the response I really appreciate your insight.

When I said the majority of boards make the accusation I meant it's the board who sends the violation notice; therefore they are making the accusation. I know there are some assn's that rely on the members to inform the board of a violation but whatever the procedure the board should always check out the complaint b/4 sending a violation notice. Sadly, I know this does not always happen.

When I stated it is not the law in most states that the defendant know the identy of the accuser, I was referring to HOA statutes. I should have been more clear. The AZ statute has some flaws in it. It states that if the member contacts the board regarding the violation notice, among other things the board must inform them of the name of the person who observed the violation. The statute only says if the member responds to the violation notice but doesn't elaborate on their response. Did the response ask for the name of the person who observed the violation, ask for an appeal hearing or merely state they would comply with the notice? I have heard that some boards are getting aroung this requirement by stating the PM noticed the violation because the PM must check out all complaints b/4 sending a violation notice.

IMO, HOA due process means the member in violation has a right to an appeal. In AZ HOA state law dictates that a fine cannot be imposed until a member has had an appeal before the board. However, IMO, in order for HOA BODS to act w/i the law (in compliance with criminal code?) regarding due process, the legislature should write laws outlining the correct procedure to follow. Otherwise HOA boards are only going to do what their gov. docs. dictate which may be very far from complying with the law.

GeorgeG5 (California)
Posts: 19

Posted:

Mary,

In the salutation to your last post (3/17/2010) in this thread, you addressed "Charles." I assume that was a memory slip and that you meant to write "George." I furthermore assume that the remarks in the body of your post were meant to be responsive to my post of 3/17/10.

Thank you for the clarifications you made in your post. I do not pretend to be cognizant of the details of Arizona law, but I know something about common law, constitutional law, and California Common Interest Developments law (association law).

I have been a resident in a California HOA for more than 16 years. Our association, like all associations, has had its share of legal squabbles. A fairly recent case, for example, cost the losing party more than $100,000. Costly, but still not as costly as some California association cases. It is not unusual for a California court case to ultimately cost one of the involved parties $500,000 or more. For this reason, it is important that potential litigants (both accused members and hearing boards) know as much about relevant laws as possible before allowing themselves to fall into court quagmires.

My own association's boards have over the last 16 years become increasingly cognizant of, though less than fully knowledgeable of, such relevant bodies of law. In getting relatively up to speed on common law and California association law, they have found the Adams Kessler Website extremely helpful. A newly elected board member preparing for his or her first violations hearing can quickly learn most of what he or she needs to know about relevant laws and procedures at the Adams Kessler site by first pointing his or her Web browser toward the site's main page (http://www.davis-stirling.com/) and then on that main page clicking the "Hearings procedures" link.

The "Hearings procedures" link takes the user to a page titled "RULES ENFORCEMENT." On the "RULES ENFORCEMENT" page the user finds links to short essays on such basic legal concepts as due process, recusal, and anonymous witnesses, as well as numerous links to discussions of relevant California-specific procedures. The Adams Kessler site can, I think, be confidently considered THE layman-oriented California association laws resource.

Is there a similar Website devoted to Arizona association law?

Are you aware of similar Websites devoted to the association laws of other states? If such Websites exist, it would be worth compiling a list of them for users of HOATalk.com.

JodyC (California)
Posts: 3

Posted:

Before a board can meet to consider imposing discipline upon a member, it must notify the member in writing, by either personal delivery or first-class mail, at least 10 days prior to the meeting (unless the governing document set a longer notice period). Civil Code §1363(h). The notice must contain the following:

The date, time, and place of the meeting,

The nature of the alleged violation for which a member may be disciplined, and

A statement that the member has a right to attend the hearing, view the evidence of violation, and present a defense, including his/her own witnesses and documentary evidence.

Tenants. There is no requirement that the association give notice to a tenant of a violation hearing. Notice must be given to the owner of the property. If the owner wants to notify the tenant, that is at the owner's discretion.

Take a look at Davis Stirling website. No need to hire an attorney. The law is clear and you should alert your board as such.

http://www.davis-stirling.com/MainIndex/NoticeofHearing/tabid/1738/Default.aspx

MaryA1 (Arizona)
Posts: 7,043

Posted:

Hi George,

Sorry for calling you Charles, by mistake, of course.

Thx for the info -- I'll have to check out the Adams-Kessler site and make some notes on the "rules enforcement" info. I keep a large binder that is chock full of HOA info that has been most helpful to me over the years.

No, there isn't a comparable website regarding AZ HOA law. However a number of the more prominent HOA attorneys have websites and some publish newsletters that are very helpful. And, of course, there's always CAI. I'm not a member but I do know they have published a lot of very helpful info.

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