Picking who can use the common gym...

OI VEY!!!

Please hear me out.

Our cc&r's do NOT state anything about being delingquent in dues and use of common area niceties. I know this first hand as I assisted the current board on editing and erecting a new set of CCRs which has NOT beeen passed by our homeowners..

Our current governing documents do not have any allowance for delinquent homeowners.. neither does our current rules and regs..

Our Gym was just completely redone and clean and shiney. It's awaiting an "OPEN HOUSE" according to our website.

The website also says that if you are delinquent in dues.. you can't use this or be given the passcode. How can this be enforced if there currently is NOTHING on record for delinquent homeowner and common area use of items?

Does this sound incorrect? I spoke to one of the committee members who put the room together and she said the board is making it a "rule" that you have to be current on dues...

We according to DSL here in California have to have rules set forth to homeowners so they may vote on them or respond. Nothing has be shared in open forum, posted to homeonwers. Our current CCDRs and rules and regs have NOTHING on record stating that anything is off limits for those behind in dues. Is our board acting rouge??

Does this apply to late dues? I cant see that specifically..

Here's more on this, Fiona.

Specifically, Due Process in this context in the California Civil Code means following a clearly defined series of steps, and when Davis-Stirling talks about governing documents, it generally means bylaws and CC&R's:

Suspending Common area privileges

Provided due process is followed, associations may suspend an owner's common area privileges. The privileges suspended will vary from association to association. In addition to an owner's right to vote, the following privileges may be suspended:

Cable TV. If an association has a bulk contract with the cable company, those services can be suspended.

Laundry. If laundry machines are paid through owners' dues, the service can be suspended. If they are coin operated, it cannot.

Elevators. Associations cannot suspend elevator service. Elevators have been classified in landlord-tenant law as a utility that cannot be suspended. Moreover, if an elderly or medically challenged owner or guest is forced to walk up stairwells and has a heart attack, the association will likely be sued.

Main Lobbies. Associations cannot bar owners and guests from walking through the lobby. Owners have the right of ingress and egress. Except as provided by an order of the court, associations may not deny owners or occupants access to their separate interests by restricting access through the common areas. Civil Code §1361.5.
Recreational Facilities. Use of the recreational facilities such as the pool, gym, tennis courts, etc. may be suspended.

Clubhouse. Use of the clubhouse for functions unrelated to association elections can be suspended.

Parking. Associations that provide valet parking (mostly highrise associations) can suspend those privileges to delinquent owners and their family and guests. Guest parking can also be suspended.

Miscellaneous. Receiving and sending calls through the association's switchboard (mostly highrise associations) can be suspended as well as signing for packages and deliveries (mostly associations with onsite staffing). The announcement of guests can be suspended (mostly gated communities and highrises), i.e. guests can be turned away and told to contact the owner and have him/her meet the guest at the front gate or building entrance.

Utilities. The courts treat associations as landlords when it comes to utilities. Under landlord-tenant law, landlords may not interfere with or terminate utility services (gas, electricity, heat, etc.).

Impact of Suspension. If there are multiple owners of a unit/lot, the suspension of rights/privileges for one owner suspends the rights/privileges of all residents of that unit/lot.

RECOMMENDATION. Boards should check with their association's legal counsel to make sure they have proper procedures in place for suspending privileges.

Rob

Here's the problem, Fiona:

If the association, though the Board, wants to use withholding of privileges to, shall we say, encourage deadbeats to pay their fees, that's reasonable. It's really not fair for homeowners to live in a common interest development, and not pay their fair share of the expenses, which is what the fees are for.

But!!

If the Board of Directors fails to follow the law in denying privileges for this purpose, it is simply setting the association up for a nightmare, when the "victim" of these illegal actions turns around and sues the association, or otherwise bites the BOD in the butt. I've been living in a California CID since 1987, and trust me: I've seen more backfires than you can possibly manage. There's nothing more disheartening than a BOD that tries to do the right thing in protecting the interests (and wallets!) of the homeowners, only to have to then devote huge amounts of time and resources to defend themselves from clever jerks who end up skating, just because the BOD failed to cross the T's and dot the I's in some policy they adopt.

Fair warning: the Board needs to consult your HOA's attorney before going down this road.

Rob