A notice of a disciplinary hearing is not great news, but that is how associations compel owners to be good neighbors.
How one responds to a hearing notice can greatly affect the outcome.
Here are some tips as to how to respond, hopefully toward a more productive hearing presentation and to help avoid wasting the valuable opportunity the hearing provides.
After receiving the notice, read the governing documents. Unfortunately, many homeowners do not read the covenants and rules until there is a problem.
The hearing notice must specify the governing document provision that was violated. Read it. Are you in violation? Can the violation be quickly corrected?
Don’t assume the hearing is because the board is out to get you. If you make it personal, you will reduce your credibility and alienate the board from the outset.
Don’t assume you are the only one. Boards typically do not publicize their enforcement activities.
Don’t bring an attorney. The association attorney will typically not be present in the disciplinary hearing, and the association can bar your attorney from attending under the 2013 appellate ruling in SB Liberty v. Isla Verde. [Besides, the attorney will probably charge you more than the amount of the potential fine.] Keep it neighbor to neighbor.
If the violation was not committed by you but by your tenants, make sure they know of the issue. Since the HOA is connected to you (you are the member), but has no legal relationship to the tenant, the landlord is normally brought to the hearing. Can you get your tenant to promise it won’t happen again?
Prepare. Notify the association manager that you will attend the hearing and speak to the board. Plan your presentation as to both your arguments and your documentation in advance. Find out if the board has a time limit. If not, plan on being brief anyway. Bring enough copies of what you want the board to see so that all directors and the manager have copies.
If you cannot attend the hearing due to travel, illness, or other conflict, let the board know as soon as possible. Ask for a short postponement – but be aware the board is not required to grant postponements and can proceed with the hearing without you present.
When you arrive, notify someone at the hearing that you are present. You may have to wait outside the room for a while, depending on how many other hearings occur that evening.
Don’t argue the rule, but address the violation. The board will not be receptive to criticisms of the CC&R or rule section being enforced. The board wishes to enforce the section, and that is why you were called to a hearing.
If the violation is a first-time issue for you, show proof the violation has been corrected, and ask for a waiver of the fine. The board is not obligated to waive the fine, but your good faith in this regard may be rewarded.
HOA disciplinary hearings don’t occur in a court of law, but are meetings between neighbors. Keep in mind the paramount value of neighborliness. If both board and member keep that in sight at all times, and try to work together as neighbors, the hearing’s outcome can be positive for all concerned.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit questions to Kelly@roattorneys.com.
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