HOA not following Davis-Stirling -- Does it matter?

LeeP2 (California)
Posts: 5

Posted:

Hi All,

I'm glad I found this forum. We are a small association in California, and I'm writing on behalf of one of the residents who doesn't always have access to the internet.

A noise complaint was filed with the Board, which is the second complaint after the resident received a warning letter last year. Our Association's rules (and Davis-Stirling), state the resident has a right to a hearing before a fine is levied, but the resident must be notified in writing about the hearing, as well as be given the right to view evidence.

http://www.davis-stirling.com/MainIndex/NoticeofHearing/tabid/1738/Default.aspx#axzz1vATzmlnN

The Board wants to conduct the hearing before the next regular board meeting which is now less than 10 days away. The resident was told there were "several" emails complaining about noise, and asked to see the emails minus the sender info. She just wanted to know what "several" meant. The secretary will not let her see the emails.

The Board is clearly not following Davis-Stirling, so can this hearing even be held?

Thank you!

Lee

LarryB13 (Arizona)
Posts: 4,099

Posted:

If the statutes require that the homeowner be given the right to view the evidence and that evidence consists of emails, then the homeowner has the right to see the emails complete with the headers that identify the complaining parties. I do not see how the board can conduct a lawful hearing without complying with the law.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By LeeP2 on 05/17/2012 3:26 PM

The Board is clearly not following Davis-Stirling, so can this hearing even be held?

In reality, Yes, the hearing could be held.

Would the results be enforceable? That would depend on the individual:

If they comply with the results, then yes it was enforceable.

If they just say no, then the board will likely think it was enforceable and add additional fines, etc.

If they challenge the process in a court of law, perhaps not. However, that probably won't prevent the board from holding another hearing, in compliance with all the laws, and have the same results.

I'd suggest informing the board about the requirements of Davis-Stirling and that the Board is required to comply with them. Note, the unintended consequence could be ticking off the individual who will be making a decision on the issue.

Another option is to have your attorney write the letter. Note, same consequences.

Another option is to bring your attorney to the hearing with you.

LeeP2 (California)
Posts: 5

Posted:

"Note, the unintended consequence could be ticking off the individual who will be making a decision on the issue."

Good point, Tim.

Two of the board members have been very public regarding their dislike for the individual, which does have her concerned and makes her feel as if she won't get a fair hearing anyway.

LeeP2 (California)
Posts: 5

Posted:

Thanks Larry!

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By LeeP2 on 05/17/2012 3:26 PM
Hi All,

I'm glad I found this forum. We are a small association in California, and I'm writing on behalf of one of the residents who doesn't always have access to the internet.

A noise complaint was filed with the Board, which is the second complaint after the resident received a warning letter last year. Our Association's rules (and Davis-Stirling), state the resident has a right to a hearing before a fine is levied, but the resident must be notified in writing about the hearing, as well as be given the right to view evidence.

http://www.davis-stirling.com/MainIndex/NoticeofHearing/tabid/1738/Default.aspx#axzz1vATzmlnN

The Board wants to conduct the hearing before the next regular board meeting which is now less than 10 days away. The resident was told there were "several" emails complaining about noise, and asked to see the emails minus the sender info. She just wanted to know what "several" meant. The secretary will not let her see the emails.

The Board is clearly not following Davis-Stirling, so can this hearing even be held?

Thank you!

Lee

There are four elements that must be met for a hearing. All four elements must be met. Those elements are:

1. Notification in writing by personal delivery or first-class mail (ant NOT email) at least 10 days before the hearing. Time, date and location of the hearing must be included.
2. Nature of the complaint.
3. The person can request the hearing be during executive session.
4. Notification of the decision is also by first class mail or personal delivery within 15 days.

As a matter of due process, the person does have the right to know who the accuser is. At this point, you only have two complaint letters and have stretched the truth. Two emails are not several. If this is all the evidence, then the board is on shaking ground. False statements by the board come under another code (corporate).

8215. Any officers, directors, employees or agents of a corporation who do any of the following are liable jointly and severally for all the damages resulting therefrom to the corporation or any person injured thereby who relied thereupon or to both:
(a) Make, issue, deliver or publish any prospectus, report,
circular, certificate, financial statement, balance sheet, public notice or document respecting the corporation or its memberships, assets, liabilities, capital, dividends, business, earnings or accounts which is false in any material respect, knowing it to be false, or participate in the making, issuance, delivery or publication thereof with knowledge that the same is false in a material respect.
(b) Make or cause to be made in the books, minutes, records or accounts of a corporation any entry which is false in any material particular knowing such entry is false.
(c) Remove, erase, alter or cancel any entry in any books or records of the corporation, with intent to deceive.

You mention that board members have openly stated that they dislike this individual. The question then becomes can they be fair and impartial? How does the board know if the people making the accusation aren't doing so out of malice?

Noise is something easy to complain about, but just how loud is it really? Would the measure of noise be considered a problem by a reasonable person? When does it occur? What is the duration?

Consider how an animal control officer would investigate a barking dog complaint. If your board is not investigating the complaint in a similar manner, you are also on shaky ground.

The board's decision could be challenged in court and then if the person gets legal advice from a lawyer and prevails, the association could be required to pay those fees.

LeeP2 (California)
Posts: 5

Posted:

Quote:

Posted By JM10 on 05/19/2012 4:19 AM

Posted By LeeP2 on 05/17/2012 3:26 PM
Hi All,

I'm glad I found this forum. We are a small association in California, and I'm writing on behalf of one of the residents who doesn't always have access to the internet.

A noise complaint was filed with the Board, which is the second complaint after the resident received a warning letter last year. Our Association's rules (and Davis-Stirling), state the resident has a right to a hearing before a fine is levied, but the resident must be notified in writing about the hearing, as well as be given the right to view evidence.

http://www.davis-stirling.com/MainIndex/NoticeofHearing/tabid/1738/Default.aspx#axzz1vATzmlnN

The Board wants to conduct the hearing before the next regular board meeting which is now less than 10 days away. The resident was told there were "several" emails complaining about noise, and asked to see the emails minus the sender info. She just wanted to know what "several" meant. The secretary will not let her see the emails.

The Board is clearly not following Davis-Stirling, so can this hearing even be held?

Thank you!

Lee

There are four elements that must be met for a hearing. All four elements must be met. Those elements are:

1. Notification in writing by personal delivery or first-class mail (ant NOT email) at least 10 days before the hearing. Time, date and location of the hearing must be included.
2. Nature of the complaint.
3. The person can request the hearing be during executive session.
4. Notification of the decision is also by first class mail or personal delivery within 15 days.

As a matter of due process, the person does have the right to know who the accuser is. At this point, you only have two complaint letters and have stretched the truth. Two emails are not several. If this is all the evidence, then the board is on shaking ground. False statements by the board come under another code (corporate).

8215. Any officers, directors, employees or agents of a corporation who do any of the following are liable jointly and severally for all the damages resulting therefrom to the corporation or any person injured thereby who relied thereupon or to both:
(a) Make, issue, deliver or publish any prospectus, report,
circular, certificate, financial statement, balance sheet, public notice or document respecting the corporation or its memberships, assets, liabilities, capital, dividends, business, earnings or accounts which is false in any material respect, knowing it to be false, or participate in the making, issuance, delivery or publication thereof with knowledge that the same is false in a material respect.
(b) Make or cause to be made in the books, minutes, records or accounts of a corporation any entry which is false in any material particular knowing such entry is false.
(c) Remove, erase, alter or cancel any entry in any books or records of the corporation, with intent to deceive.

You mention that board members have openly stated that they dislike this individual. The question then becomes can they be fair and impartial? How does the board know if the people making the accusation aren't doing so out of malice?

Noise is something easy to complain about, but just how loud is it really? Would the measure of noise be considered a problem by a reasonable person? When does it occur? What is the duration?

Consider how an animal control officer would investigate a barking dog complaint. If your board is not investigating the complaint in a similar manner, you are also on shaky ground.

The board's decision could be challenged in court and then if the person gets legal advice from a lawyer and prevails, the association could be required to pay those fees.

Wow, JM10, thanks for such a thoughtful reply. The noise complaint was regarding the resident slamming her front door and yelling at her son to hurry up. (I think they were late for something). It occurred late one weekend morning. I heard it and didn't think it was that big of a deal, but knowing how quick others are to go after this resident, I wasn't surprised to see it on the agenda.

She knows she won't get an impartial hearing and has even asked for mediation so it will be interesting to see how it plays out.

JM10 (California)
Posts: 503

Posted:

This sounds like a one-time occurrence and should not be considered under a noise nuisance complaint.

I used to volunteer for a humane society, but barking as a noise issue is a common problem. So I understand how these issues are investigated. An analogy is often drawn between barking and a car alarm although you have less control over a dog barking (I had a dog that became hysterical after an earthquake).

A one-time occurrence at a time when most people are awake (late on a weekend morning) fails to meet a reasonable standard for nuisance noise. It's similar to a dog barking once for less than a minute at 10 or 11 a.m.

Rather, if either the dog barking or the door slamming happened regularly before 8 a.m. or after 10 p.m. and lasted for a minute (duration), then it would be a problem for the board.

If I were the resident in question, I would feel that this attention is unreasonable and the action is frivolous. She may be able to build a case in time for discrimination or arbitrary and capricious enforcement of the CC&R. Under the Davis-Stirling Act, rules must be in writing, they must be fair. If every HOA was to begin having hearings over slammed doors and a single loud utterance, I think there will be a lot of disgruntled parents and children and husbands and wives hauled into executive sessions, but I don't know if HOA boards should really get into the business of family counseling.