fines without evidence or proof - hearsay

Started by StaceyL • 53 replies • 13147 views

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StaceyL (California)
Posts: 25

Posted:

I live in a very small HOA - 10 units, 6 of which are on the board. Two of them have made it very clear in meetings that they want me out. We are all owners, with the exception of 1 renter. I was fined and paid $100.00 a few months ago for a noise violation (my 11 year old son slammed the door. the first time was a year prior to that (a warning letter). I asked for evidence to which they said they don't have to have any proof - just their word. This month, I have hearing tonight for 9 additional alleged violations within a 10 day period (can be $250.00 each one) and then another one on the agenda for this months meeting ($400.00 fine). Some of these days I was not even home during these times. I have bank statements showing activity but they don't provide actual times. I have been told by one of the two board members that she "tracks and monitors" me. I don't feel like I should have to live my life by a notebook and log my every waking minute - which they say is irrelevant since 3 board members are saying I did something even when I was not home.
This is a long standing problem with singling me out for things and ignoring others. There are renters and another owner who violate parking rules (multiple times in a year) and are never addressed. There is also an owner who admits he has been violating a leash law for 14 months and why should it apply to him when it was written for my dogs. They are never given a warning letter or fine and items are generically addressed on agenda regarding them, while my items are specific to my unit.
The members of the board who have made it their goal to remove me for years have said that they will continue to fine me until they can put a lean on my place and force me out.
Our minutes are vague at the best - lots of stuff is missing. I tape recorded a meeting (with the board permission) of my last hearing, and the president said he would keep calling cps and the police until I "changed my ways". They say they can hear me swearing and yelling in my unit, slamming my front and car door. The poice and cps have said their calls are false and have not cited me at all. The board seems to think they are above the law and can hold rules like "any noise can be interpreted as a violation and fined".
do they have this absolute power that makes them above the law and civil rights? Do I have any recourse in this matter? I don't have money to fight them with costly attorneys, and our rules and regulations specify that anybody who tries to fight them legally must pay for the hoa atty fees upfront to fight against the person. They can make any rules they like and only enforce rules if they decide to (can ignore for others but not me).
This is affecting my physical and mental health as well as that of my 11 year old son, who I have to try and keep completely quiet at all times.
Does anybody have any suggestions for an atty that will work on a contingency? I have a ton of emails and such with evidence and one board member who tries to back me up - but then she ends up on the agenda and gets attacked for made up stuff.

StaceyL (California)
Posts: 25

Posted:

one more thing - the people accusing me are the same that hold the hearing and make the judgement of fines and if it is valid. There is no impariality here at all. I requested mediation and letters and phone calls were made to the president and he refused. Our rules and regulations say I have a right to mediation. (6 of the 10 units are board members and not an outside agency overseeing.) How can I protect myself from attack from board members who go on their own hearsay and are trying to force me out. They have said they can enforce a rule for me and ignore it for anybody else because they are the board and they decide what they will enforce and what they will not.

BB7 (Missouri)
Posts: 23

Posted:

If you can afford to move do it and slap a big lawsuit against them for making life so miserable you have the right to the quiet enjoyment of your property. Don't talk to them without recording or getting everything in writng anything from cps or the police stating the calls to them are unwarrented (sp ?) And slap a REALLY BIG lawsuit against them !!!!!!!!

StaceyL (California)
Posts: 25

Posted:

I am a single mom who with one income - mine (no child support). I inhereted this condo from my aunt who passed away. The one board member who has continually gone after me since the day I moved in (I did not ask her permission to remove a dead tree from my private backyard) told all the other members about this. The president screamed in my face about how undeserving I was to get this condo for free when he worked his whole life... are you getting the picture??

StaceyL (California)
Posts: 25

Posted:

this is the line they take (quiet enjoyment of their property)... they say I slam the door of my car and house (even when I was not there). Three of them get together and coordinate their dates and times on the agenda, and say they don't have to have proof - just their word. Our board is self governed and most of them are puppets the the one who "runs it". I asked for proof last time and was told they did not need any. I said it was not fair for them to accuse, try and fine me on their own - in court it would be different. They said they don't have to abide by any city or civil laws because they are the board and they can make the rules and enforce them as they see fit.
Does anybody have experience with fighting this kind of board or am I just kicking dirt and will lose my condo anyways because they will keep making up things to fine me for.
My hearing is tonight....

StaceyL (California)
Posts: 25

Posted:

I have two letters from CPS stating they are false complaints. The police said they only assign cse numbers to real complaints and don't record false ones.

CarolR11 (Colorado)
Posts: 2,563

Posted:

If your income is not very high, Stacey, you may qualify for some sort of legal aid services. I'm guessing you could check with your local Health and Human Services agency. If what you say is accurate, the Board is violating many of your legal rights as a homeowner and Member of your HOA. Are you sure you're the owner of record?

Some of these rights should be spelled out in your HOA governing documents--your CC&Rs and/or Bylaws. Probably the Bylaws, by the way, state how many members should be on your board of Directors. Six in an HOA of 10 is way too many.

In CA, the main legislation that shows you your rights is the Davis-Stirling statutes found in CA Civil Code. There's a site called davis-stirling.com that can give you all kinds of info about the only legal ways for Boards to conduct hearings, about the requirement for mediation, etc. The site is authored by an HOA legal firm

Why is the Board stating that they've called CPS (Child Protective Services)? Are they claiming that you're a danger to your child? Let us say that you aren't putting your child in danger. You may have a case of defamation of character--maybe both libel and slander. But I'm only seeing your side of the story and I'm in no way attached to the legal profession.

Other than removing the dead tree, are most of the alleged violations noise nuisances? It sounds like the hearings are not held in a private executive session, which is in violation of Davis-Stirling.

But, it seems like you're going to need an attorney--an HOA attorney. One may be willing to provide you a free first consultation. But

By the way, I don't believe liens on your property can force you to move or sell your unit. IF the liens ARE legal, and I don't know if they would be, you'd pay the fines if and when you sell your unit.

StaceyL (California)
Posts: 25

Posted:

I do not qualify for low income help. I am the owner of record. This is the fact that had the president of the HOA screaming in my face about. I pointed out the requirement in our rules and regs (which they go by and which they change at their leisure) that I am entitled to mediation. The president's response was that he is not wasting his time going to mediation. In the meeting, he stated that I was to be fined and when the other board member said I am entitled to a hearing, he said fine, we will hold a hearing and then fine her. Our minutes do not record information in detail. The private executive session is the 6 board members - same as the hoa board. I was told by cps that if I got the d.a.s office involved and filed a suit against them I had a good case. I really don't want the legal expense (I don't have the extra money to fight a hoa that I have to pay for their atty fees upfront also)... and I just want them to leave me alone - just like they do everyone else. I was told I don't have any legal or civil rights living in a hoa. I have pointed out the Davis-Sterling stuff and they ignore it and say they go by their rules and they can make any rule. It was not the board that called cps - it was the president - the same day I told him and another owner that they could not trap squirrels - and they said you wait and see what happens to you - then next day cps was at the school - and sent me a letter saying it was a false complaint. The second time he called he initiated a call to the police saying my dog was barking, and infused it with child endangerment. They came out, and said they could see there was no abuse or endangerment. They really dont want to get involved and told me to get an atty and that my board was out of control. They told the president (he wanted me cited for swearing) that I could swear all I wanted outside until 10 pm and inside they could not control what I say at all... he replied that they would make a rule about swearing and noise inside units.
Long story.... I want to know if I have a leg to stand on or it it is true that boards can do anything they want and enforce or not for one and violate civil and city laws to their own use or not. I know I will need an atty - but dont even know if their rule about me having to pay their atty fees up front is legal or not. They say if they make it a rule it stands and hoa's can do what they want. there is one board member who tries to help, but then they go after her with "charges" to keep her quiet. She said she would like to help more, but I know she has to live there also, and it will cause trouble for her. It is mainly one person who "runs" the board - with the president as her first puppet, and her minions who do her bidding - they agree to anything she says. They go so far as to say in a meeting when I bring something up - "I don't recall saying that ever, does anybody else recall it" and they all echo "no, we don't recall it" - like sheep.
sorry to ramble.

GlenL (Ohio)
Posts: 5,491

Posted:

HOA Boards can do pretty much what they want as long as the members are willing to put up with it. You have three choices I see:
1. Live with it.
2. Sell and move.
3. Get medieval on their ass.

Whether they want to or not they need to follow Davis-Stirling and if they don't you need to start suing them, you can do it in small claims court. Since the president is making calls as a fellow homeowner sue him personally, not the HOA.

I'm not an attorney but what you describe certainly sounds like criminal harassment based on what you've posted. You also might try filing a complaint with HUD on them violating you and your son's rights. Believe it or not children are a protected class.

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

BB7 (Missouri)
Posts: 23

Posted:

"Quiet enjoyment " does not mean no noise it means you can live on your property without harrassment etc.

StaceyL (California)
Posts: 25

Posted:

thank you all... I will see what happens tonight. I have asked who complains and they say they won't reveal for fear of retaliation (another of their rules) (despite the fact that I have never done anything to any of them). I have nultiple emails about them not putting parking on the agenda for the renters that violate the rules constantly - they ignore it. And, the owner with the dog that has been loose for 14 months that they ignore. If I parked 2 cars inside or had my dogs off leash (the rule was made for me because somebody stepped in dog poo and they said it had to be my dogs of course). I would be on the agenda instantly. They say they can ignore the rules for them, but enforce or make up rules I have to abide by.
Does not seem legally or civilly correct, but who knows.
When push comes to shove, most of the other board members say they don't want any part of the fines and accusations - they stay out of it - it is the two main ones and the newest owner who jumped on the bandwagon (presumably to stay safe with them).

StaceyL (California)
Posts: 25

Posted:

quiet enjoyment by their definition means no kids being heard (except the presidents of course) and no playdates ever for my son at my house (would be a noise violation) and no being a kid and playing outside or in my backyard because they can hear - never mind the neighbors in back who have several kids and yell and have parties and they never say anything.
It also means that they can interpret freely what a noise violation means (in their words) and fine accordingly.
They even have a rule about no kids on bikes - it ruins the blacktop in the parking lot they say..

GlenL (Ohio)
Posts: 5,491

Posted:

Stacy check out: http://www.davis-stirling.com/tabid/730/Default.aspx#axzz2E2Upvn2L
davis-stirling.com's page on due process.

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

BradP (Kansas)
Posts: 2,640

Posted:

Stacey

Not an attorney and this is strictly my opinion. Quiet enjoyment aside the covenants can not be unreasonable, you are allowed to live your life as a normal person would do, walking, talking, having reasonable friends over for your child with reasonable noise levels. You can not get fined without proof, what happens when you go to court they will need proof such as time it happened, what was said, etc. If they can not provide that proof or if they conspire to make it up and you can show you weren't there that will look very, very bad on them.

As I see this it sounds like your board is singling you out for whatever reason and they smell blood. I would normally advise a sit down meeting with them to ask "what the heck is your problem" type situation but not sure it will do any good here.

If I were you I would start shopping around for an attorney, if what you have written is true they will see the dollar signs and someone should be willing to work on a contingency for you, especially given your financial situation. Unfortunately i think that is the only thing here that will work unless the board does an about face. If you ignore the fines they can eventually take away your condo so i think your best course of action is to strike first.

StaceyL (California)
Posts: 25

Posted:

well they fined me $250.00 - without proof - just on their hearsay. I said I did not slam any doors and they say I did - no proof either way (how do I prove this one)... guilty until proven innocent in my HOA unfortunately. The two who have always come after me are hot on it and have recruited two more - one a recent addition to the board. They still refuse to tell me who complained about me and said they are not interested in mediation even though I requested it. They are going ahead with the fine anyways. I asked for mediation because I said it was not inpartial or fair that the very two plus the other two recruited who are accusing me are the ones holding the hearing, deciding the punishment and issuing the fine. They are acting as accuser, judge, jury and sentencer all in one. Our rules say they have to have 3 complaints from different people on the same thing to be on the agenda... with me - they only have one person on each one and the other two are doing the rest - different days and times each. They are free to fine me daily apparently if they so desire based on their saying they don't need evidence or proof besides their saying I did something. They also fined me $250.00 for the one additional on on this months agenda - which does not have any information on it on the agenda besides a date - when I asked they said they will provide it to me at the next hearing when they fine me. They have from 10/28 until today to come up with any additional fines they wish to impose at their will apparently. I did not deny the swearing or yelling - which they say is all inside my unit (not outside at all) - and supposedly shook walls and doors the farthest from my unit - but only on those that accuse me. The last time they said I knocked pictures off the walls, shook the glass in the sliding doors and windows and shook the house by slamming the door - our place is evidentally not safe in CA to live in in case of an earthquake in that matter. The othes mostly stay out of it and keep quiet. I said I was not here on some of these dates that they accuse me of slamming doors and they said I am being fined anyways because they get together and say I did it - without ever actually witnessing it.
They have now taken Christmas away from my son to pay their fines - and it looks like they will take the condo eventually if they keep it up - along with his school, sports, friends etc etc.
I cannot pay fines and bills and afford to do things for and with my son also. They are so bent on getting me out they don't realize what they are doing to him.
When I brought up the issue of the dog being off leash (one of my accusers) he said it has been 14 months and it never appeared on the agenda so it does not matter - even though he admits he broke the rule daily for 14 months. When I brought up the double parking by the renters, my biggest accuser told the board that instead of sending them a warning letter that they should go talk to them in person instead about parking - I and somebody else have brought this up several times for the agenda in the past year and it never makes it on addresse to them - have the emails to prove it - they do not enforce rules for some and are constantly looking for stuff on me. I have been asked to be fined by the person for not clearing up the leaves from their tree that fall into my backyard in the time frame she wants me to - I generally do it 2-3x in winter. She actually told me that if I did not want to pick up the leaves in my backyard that I should not have moved in. She is the "board of one" and rules this HOA. She also sets the standard for attack and recruits others on her side - she hand picked the president - there was never a vote by all owners on what positions they would hold (proxy in there were only 6 applicants for 6 positions) - she told us she asked him and he accepted the position.
Is it legal for a board to say that if you try and fight them legally you have to pay their atty fees up front to fight you - in other words you have to pay both sides no matter what - seems like a way to keep people in line.

BradP (Kansas)
Posts: 2,640

Posted:

Stacey

Time for an attorney...how it will work is when you slap a suit against them they should forward that information to their insurance company and they would cover the legal bills up front. If they do not have insurance they are in fact idiots and then the funding would come from association reserves, if you do not have enough of them they could do a special assessment and spread it amongts all owners equally.

If what you have written is true enough is enough, they need to be put in their place and unfortunately only an attorney can help you with it. Good luck.

JM10 (California)
Posts: 503

Posted:

Stacey:

Take a deep breathe. You are obviously very upset. I feel I totally understand your situation. Once you've calmed down, write a chronological list of occurrences and see if there is a pattern or what you can prove in court.

You need to get everything in writing in all cases.

1. Familiarize yourself with your CC&R.
2. Familiarize yourself with the Davis-Stirling Act.
3. Question everything in writing.
4. Talk to people in Fair Housing. They can help you determine if the government will take action for discrimination against protected minorities.

A slammed door doesn't meet any reasonable criteria for a noise nuisance violation. I have to wonder how six out of 10 are on the board because in our 10-unit former HOA there were only 3 directors on the board.

You might see if you can get the local news interested in your case or your local legislative rep. I personally feel that there should be more governance of HOAs because of rogue board such as yours and the one we suffered through.

You can contact me directly at [email protected]

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Does your HOA have a fining schedule set up and passed to ALL members? They must have a fining schedule in place before they can enforce any fines. A HOA does have the power to place fines but that has to be defined.

Your HOA's statement is half right about if you sue them. If you sue your HOA you are suing yourself and your neighbors. It would mean you would be paying on BOTH sides. Even if you won unless you ask the court to have the HOA pay your legal costs and keep you out of any special assessments as a result. The court would have to determine that NOT anyone else. They are NOT right in you having to pay their legal costs upfront. You and your members do that with your dues. Which you need to keep paying so you have power.

I am going to tell you some "inside" information that could possibly help you. It's NOT good information and due to the above statement about a fining schedule, may NOT apply. Fines are empty threats of a HOA for the most part. They can NOT lien or foreclose on your for unpaid fines in most HOA's. (Find out in your particular state as Virginia is an exception). This means they can't take away your home based on not paying fines. They may try to sue you. Which they may try to do. However, your better off if they do sue you as it is cheaper to countersue them. You just have to respond to the claim and put in your expenses incurred.

In this situation, your much better off them suing you. It shouldn't ruin your credit either at that point as they don't have your social security number. The case should only effect your credit if you don't pay if they do win. Which really they are only getting a "judgement" against you. Which isn't a lien and you can sell the property.

Merry Christmas...

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MelissaP1 on 12/07/2012 8:42 AM
Does your HOA have a fining schedule set up and passed to ALL members? They must have a fining schedule in place before they can enforce any fines. A HOA does have the power to place fines but that has to be defined.

Your HOA's statement is half right about if you sue them. If you sue your HOA you are suing yourself and your neighbors. It would mean you would be paying on BOTH sides. Even if you won unless you ask the court to have the HOA pay your legal costs and keep you out of any special assessments as a result. The court would have to determine that NOT anyone else. They are NOT right in you having to pay their legal costs upfront. You and your members do that with your dues. Which you need to keep paying so you have power.

I am going to tell you some "inside" information that could possibly help you. It's NOT good information and due to the above statement about a fining schedule, may NOT apply. Fines are empty threats of a HOA for the most part. They can NOT lien or foreclose on your for unpaid fines in most HOA's. (Find out in your particular state as Virginia is an exception). This means they can't take away your home based on not paying fines. They may try to sue you. Which they may try to do. However, your better off if they do sue you as it is cheaper to countersue them. You just have to respond to the claim and put in your expenses incurred.

In this situation, your much better off them suing you. It shouldn't ruin your credit either at that point as they don't have your social security number. The case should only effect your credit if you don't pay if they do win. Which really they are only getting a "judgement" against you. Which isn't a lien and you can sell the property.

Merry Christmas...

so what your saying is she should continue to let them put bogus fines on her that will total thousands of dollars and let them run rough shot over her? I am sorry, her board is way out of line and taking legal action, special assessment aside, is appropriate in this case

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am saying if the HOA wants to collect these fines, then they need to sue for them. Otherwise, I wouldn't waste my money paying the fines our pursuing my own lawsuit against the HOA. It is cheaper to countersue than to bring a lawsuit. Plus the court would be the decider on who pays who's court costs NOT the HOA's.

Former HOA President

StaceyL (California)
Posts: 25

Posted:

they do not follow Davis-Sterling on quite a few accounts, but as they say they are the board and can do what they want, and make rules that supercede any city, civil and legal rights one may have.
Fines are 1st offence - warning letter; 2nd $100.00; recurring $250.00; persistent (as determined by board of directors)... this leaves it wide open. It says list is not all inclusive - fines for persistent offenses are at the disgretion of the board, amounts predicated upon severity of violation and may include legal action or arbitration hearing.
Their rule for noise says: noise must be kept to a minimum throughout the complex. ..shall avoid making loud, distubing or objectionable noises. Persons in other units shall not be unduly dirturbed by sounds emanating for your unit or patio....exercise restraint in creating nose before 8am or after 10pm weenights and 11 pm Fri and Sat. Barking dogs and crying cats shall be controlled; noisy vehicles are prohibited in common area and parking lot. This leaves it wide open to "interpretation". They also say they can impose fines on me for the same thing they ignore for others... it is up to them. I still am waiting to see how many days they are going to try and fine me for in November on the next January agenda. Since they do not have to have proof and only their word saying I did it, it leaves them pretty wide open as to when and how many days they rack up.
As for the fines it says all legal fees or cost ncurred the by the assn to enforce vioations or collect fines will be responsibility of owner. ... see collections policy, which states delinquent late charge of $25.00 and after 45 days goes to collections, and a prelien letter is sent. Also says they can foreclose on a lien and take property as decided by the board.
Basically, as they have told me if I don't pay any fines on time, they will happily proceed with all legal action to put a lien and take the condo from me and incure all atty costs my way.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Is this collection policy in your CC&R's or by laws? Honestly it does NOT sound legal enough for me. They don't want anyone to challenge that. I could go into more details but not on my computer. However, very suspicious that this policy is not legal.

Former HOA President

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I got to my computer and re-read your post. Mind you I am NOT a lawyer nor do I represent myself as such. However, I have taken a few legal courses that allow me to be able to know a thing or two. Your HOA's policy is full of flaws but also misconstrude facts. Most of their collection policy wouldn't hold up in court. Too many reasons for me to comment and best to be handled by the court system.

I am in a giving mood and giving you some advice I wouldn't want anyone in my HOA to know...My advice is still to let them sue you to collect. You need to file a counter suit in response to their suit. A lawyer isn't necessarily needed to file the counter suit as you just reply to their suit. You may want to call up to find out how that process works if you get the paperwork for a lawsuit because you do need to file a reply to it. If you don't, then they can win on the basis you didn't reply.

Your job now is to collect proof on your part. What consitute as proof? Witnesses are great if you can get them. Which may not happen. The other thing you have in your favor. No police reports for noise. How they going to prove your noisy if there are no police reports regarding the issue? Seems they are relying on witnesses not fact. If the police were called out multiple times for noise control then the HOA would have a case and proof. The fact there are no such reports supports your side of things. Something I wouldn't let them know you know until court. It's kind of your slam dunk moment.

The state laws can't be superceded by the HOA's rules. There are limitations on fines and interest a person can legally be charged. The court can throw out or lower the amount to be paid if any. The court will also determine who pays the legal and filing fees.

Keep in mind that the court system can only make one "whole". The HOA can't make a profit. The court may allow them to continue fining in the worst case scenerio. However, fines are really what I call "punitive profit" for a HOA. Fines are not the basis for their budget. Only dues/special assessments are. So making fines enforceable is kind of tricky for a HOA at the end of the day. What some do is apply your dues toward the amount of fines you owe. That way they can show you owe money and then lien for that. That is how they can lien for fines. Otherwise they don't have much power to lien/foreclose for straight out fines.

I would take my chances and make them prove their case. Stop them intimidating you and your neighbors. It's time to teach them a lesson they are under very false impressions...

Former HOA President

JM10 (California)
Posts: 503

Posted:

I agree with Melissa. Our HOA took us to court and, indeed, they were trying to make a profit. We were threatened with fines almost every week, but we challenged them in writing. We did not attend the hearing because it was not properly formed (only two out of four elements). They took us to court; we countersued for production of documents.

They lost.

Start educating yourself. The HOA must abide by the CC&R, city, state and federal laws. Federal laws come first.

JM10 (California)
Posts: 503

Posted:

StaceyL (California)
Posts: 25

Posted:

thanks - I will do all advice.
I really appreciate the help.

NicoleW4 (Georgia)
Posts: 41

Posted:

Quote:

Please describe more of what you mean by "only" getting a judgement?

NicoleW4 (Georgia)
Posts: 41

Posted:

Hi Glen,

I see you are in Ohio. Is the Davis-Stirling Act only valid for California?

Does anyone know the Civil Code or HOA related code for Georgia. I can not seem to find it.

Thanks,

MikeS1
Posts: 521

Posted:

It's clear that they really do NOT know the actual meaning of Quiet Enjoyment. http://legal-dictionary.thefreedictionary.com/Quiet+enjoyment

You would think that your state would have a ombudsman or review board for HOA's and COA's. Most states are moving in that direction (as Virginia did this year). Is that not the case in your state Nicole?

Noise is a very difficult thing to guage or quantify ( in decibels). I think that they are way out on a limb on this one.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By NicoleW4 on 12/11/2012 5:12 AM
Hi Glen,

I see you are in Ohio. Is the Davis-Stirling Act only valid for California?

Does anyone know the Civil Code or HOA related code for Georgia. I can not seem to find it.

Thanks,

Yes, it is only applicable to California.

Google Georgia Property Owner's Act & Georgia Non-profit Corporations Laws

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

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You don't walk out of the courthouse with a "Check or Cash" in your hand. The court grants you a "Judgement" for the money. There are then different ways you can collect on that judgement. Garnishing wages, taking something of value and selling it, or use it to place a lien. (Which a lien is another form of a judgement). I don't advocate a lawsuit over a lien when a HOA is trying to collect back dues.

Former HOA President

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Former HOA President

FredO (California)
Posts: 198

Posted:

Stacey,

The Davis-Stirling Act here in Calif is essentially worthless. These are a set of Civil Codes that have no teeth. There is no Government agency or LEO that will force an HOA to abide by them. There is no way for the Homeowner being singled out for vendetta or other fabricated reason by the board to have any leverage to get the board to leave them alone. A hostile BoD just tells you to go ahead and sue them.

I live in Calif in a CID with an HOA. My BoD is violating the Davis-Stirling Act all over the place. The government agencies all say that any issues with an HOA are Civil Matters yet the HOA is committing real crimes such as Fraud, Extortion and Conspiracy. Even the gov't agencies suggest suing in civil court yet the actual crimes should be covered by the Penal Code.

The only exception is that the State AG will act if there is Financial abuse like theft or embezzlement and if the board is not issuing the required financial reports. For everything else, you are on your own.

Look at your governing docs. If you can prove that they are singling you out for selective enforcement of the rules and CC&R's then you have a very strong case for "Willful Infliction of Emotional Stress". This is a civil tort in Calif. Since what they are doing is considered willful acts, with premeditation, this is something that their D&O insurance won't cover.

Per davis-Stirling, you are entitled to due process, like seeing the evidence against you (including names of people complaining). They can say that they have to afford privacy to the complaining party but the CC&R's cannot violate the Davis-Stirling Act (which gives you the right to know who is accusing you of violations) or the US constitution to face your accuser.

My opinion and advice is to get a lawyer to write a letter outlining that they have crossed the line and are now personally liable for their actions as well as the entire HOA is responsible for allowing it to happen. Make this a "demand Letter". You can request in the demand letter that they stop harassing you or claim monetary damages as well. This is the first required step towards a lawsuit. Next, make a written request for a formal meeting with your board. This is called "Meet and Confer" in Davis-Stirling. The intent here is that the BoD select one person to sit and meet with you. Anything agreed to is binding. The next step (if that fails) is to make a written formal request for Mediation. The Davis-Stirling act requires this step before going to trial. Mediation cost is split 50-50 with the HOA. (Note- In your demand letter make sure you request them to pay legal fees and lawyer costs, this way if mediation results in favor to you, they pay for it)

If they are not following the Davis-Stirling Act (which it sounds like they are not doing) then you make sure you follow it and document it. When it comes time for formal mediation or an actual court trial, this will have great bearing on any awards to you. It sounds like the board is committing crimes such as filing false police (CPS) reports in attempts to intimidate you. Speak to the police about this to file a crime report and suggest it get referred to the local D.A. for consideration. If CPS (??) didn't file a report there should still be a log of them sending someone out to respond or investigate the claim. This means there is some sort of paper trail to prove your case of the "willful infliction of emotional stress". The fact that they used a gov't agency to threaten you will result in you getting higher award or such.

They have definitely impacted your right to the peaceful use and enjoyment of your property. The fact that they are watching you and the basically invading your privacy are all good reasons to stand up for your rights.

I am new to this forum/board (1st post) and while there are people who say that suing the HOA is suing yourself or that suing the HOA will inflict monetary harm on innocent members of the HOA. I say that is not true. There are no innocent victims if you sue the HOA. All members who have allowed the situation to escalate to the point that the only recourse is to sue are guilty of allowing this to happen.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By FredO on 12/12/2012 1:00 PM
Stacey,

The Davis-Stirling Act here in Calif is essentially worthless. These are a set of Civil Codes that have no teeth. There is no Government agency or LEO that will force an HOA to abide by them. There is no way for the Homeowner being singled out for vendetta or other fabricated reason by the board to have any leverage to get the board to leave them alone. A hostile BoD just tells you to go ahead and sue them.

I live in Calif in a CID with an HOA. My BoD is violating the Davis-Stirling Act all over the place. The government agencies all say that any issues with an HOA are Civil Matters yet the HOA is committing real crimes such as Fraud, Extortion and Conspiracy. Even the gov't agencies suggest suing in civil court yet the actual crimes should be covered by the Penal Code.

The only exception is that the State AG will act if there is Financial abuse like theft or embezzlement and if the board is not issuing the required financial reports. For everything else, you are on your own.

Look at your governing docs. If you can prove that they are singling you out for selective enforcement of the rules and CC&R's then you have a very strong case for "Willful Infliction of Emotional Stress". This is a civil tort in Calif. Since what they are doing is considered willful acts, with premeditation, this is something that their D&O insurance won't cover.

Per davis-Stirling, you are entitled to due process, like seeing the evidence against you (including names of people complaining). They can say that they have to afford privacy to the complaining party but the CC&R's cannot violate the Davis-Stirling Act (which gives you the right to know who is accusing you of violations) or the US constitution to face your accuser.

My opinion and advice is to get a lawyer to write a letter outlining that they have crossed the line and are now personally liable for their actions as well as the entire HOA is responsible for allowing it to happen. Make this a "demand Letter". You can request in the demand letter that they stop harassing you or claim monetary damages as well. This is the first required step towards a lawsuit. Next, make a written request for a formal meeting with your board. This is called "Meet and Confer" in Davis-Stirling. The intent here is that the BoD select one person to sit and meet with you. Anything agreed to is binding. The next step (if that fails) is to make a written formal request for Mediation. The Davis-Stirling act requires this step before going to trial. Mediation cost is split 50-50 with the HOA. (Note- In your demand letter make sure you request them to pay legal fees and lawyer costs, this way if mediation results in favor to you, they pay for it)

If they are not following the Davis-Stirling Act (which it sounds like they are not doing) then you make sure you follow it and document it. When it comes time for formal mediation or an actual court trial, this will have great bearing on any awards to you. It sounds like the board is committing crimes such as filing false police (CPS) reports in attempts to intimidate you. Speak to the police about this to file a crime report and suggest it get referred to the local D.A. for consideration. If CPS (??) didn't file a report there should still be a log of them sending someone out to respond or investigate the claim. This means there is some sort of paper trail to prove your case of the "willful infliction of emotional stress". The fact that they used a gov't agency to threaten you will result in you getting higher award or such.

They have definitely impacted your right to the peaceful use and enjoyment of your property. The fact that they are watching you and the basically invading your privacy are all good reasons to stand up for your rights.

I am new to this forum/board (1st post) and while there are people who say that suing the HOA is suing yourself or that suing the HOA will inflict monetary harm on innocent members of the HOA. I say that is not true. There are no innocent victims if you sue the HOA. All members who have allowed the situation to escalate to the point that the only recourse is to sue are guilty of allowing this to happen.

I agree that if the members allow an unjust situation to exist, it is partially their fault as well. We had that situation at our former HOA. We made sure that the other members were informed of our side of the situation by putting out an unofficial newsletter, particularly since the HOA was breaking many different civil codes as well as licensing and safety codes.

Anyone could have stood up, however, they did not. In the end, the HOA only had to pay out about $600, plus the cost of bringing a case against us in small claims court (which they lost). The HOA members will likely have to pay for higher insurance premiums when the policy comes up for renewal this spring.

We had to pay for our own lawyer and it's likely that most people won't be able to afford the money we paid and put on credit until the mediation agreement forced the insurance to pay a sizable judgment that covered those expenses. This is the problem with the Davis-Stirling Act.

A lot of cities offer free mediation services. We attempted to go through this, however, the insurance agency (Farmers) advised the HOA board against this and paid for a professional mediator. Farmers used some dishonest tactics to increase the cost to us and this would have a chilling effect on others.

I wrote to various representatives but received no reply. I also feel the Davis-Stirling Act needs more teeth because the HOA board really suffered not at all.

StaceyL (California)
Posts: 25

Posted:

I asked for mediation and letters and phone calls were made, and our HOA president said he is a volunteer and does not wish to waste his personal time on this matter. Unfortunately, we are a very small HOA - 10 units, of which 6 are on the board. There is no outside governing body at all to regulate or make sure it runs fairly. The ones who accuse me are the ones who are on the board, hold the hearing, make the decision, and set the fines - and elect themselves every year - there is no impartialness at all. They have been running the board since I moved in almost 8 years ago. The ones who are accusing me are the ones everybody else agrees with no matter what - very rarely does somebody not vote their way, and then they get shot down anyways. Crossing the board members gets you on the agenda the following month, and usually as a reply to the email. Our board has never come to me directly with anything, I am on the agenda most months for some item or another - by hearsay or them looking over my fence and monitoring my activities like they have said they do. Most stuff gets excused or is not valid by the time they hold the meeting (if I have not swept up the leaves behind my 6+ foot solid fenced in backyard from the neighbors tree in the fall in the time they want me to do it) (or putting a rug on the back balcony for a couple of hours to air it out). The board is the only ones who get a vote - on any items in the meetings, on decisions in hearings and meetings, and on who gets to be the board members each year - only they vote, and the others live by it. There are 6 positions on the board, and the 6 current board members vote on who the next 6 will be and what positions they hold - usually themselves with the exception being a new person who has bought a unit - usually for one year. The one board member has told us the last 2 years that she spoke with the individual personally and asked him to be president and he accepted and so it will be. If you are not on the board, you have no say whatsoever in anything living there - and if you are and don't agree with them and vote their way - watch out for your back. There are some who never come to the board meetings at all. There are those that violate the rules (board members) - but because it never gets on the agenda, or if it does, it is "generic" and not directed at them, nothing ever happens. One board member admitted a violation for 14 months, and the board has all seen it and done nothing - so it does not matter in their eyes that the rule was broken because it was not on the agenda. Another breaks rules and seems to be exempt also. A renter has more rights then an owner - because the board has always taken a special consideration for this offender, even to the point of giving her permission to trap wild animals in the yard which is a Fish and Game violation.
I am waiting for a consultation with an atty to see if I have a leg to stand on, or if they will continue to seek out ways to target me and make my life miserable.

JM10 (California)
Posts: 503

Posted:

You need to learn how to conduct your affairs in a more business-like manner. The HOA board does not have a choice. If you request mediation, they are required to attend. A member has a choice; the board does not.

You do not seem to understand your civil rights or the CC&R.

You need to educate yourself.

StaceyL (California)
Posts: 25

Posted:

I did try and explain my civil rights and they said the board makes their rules and they override city, civil etc -that when you live in a hoa situation, your civil rights come behind the rules and regs and cc&rs - which they change the rules and regs to their situation. Example, they called the police and wanted me cited for swearing - the police said it is not against the law and quiet hours are after 10PM (this was outside and overheard middle of day) and the member said they will make a rule that prohibits it - this falls under their blanket noise violation rules - most of their rules are blanket rules - they can be interpreted as they need and enforced for one person only if they see fit - per the board when questioned. Items get on the agenda if they see fit and can apply to one and not another. This is exactly what I am trying to fight. The mediator said they cannot help me because the board refuses to go.

FredO (California)
Posts: 198

Posted:

StaceyL

Your civil rights CANNOT be trumped by the HOA or by CC&R's. Per the US governing documents (the Declaration of Independence and the Constitution) your civil rights are inalienable. There is no authority in the land that can deprive you of your rights.

I am not a lawyer - please, please go see a licensed attorney for proper legal advice. My suggestions are just that, suggestions only!

Is your HOA following the rules in the Davis-Stirling Act with regards to financial reporting? If not, then this is your in to go to the Calif Attorney Generals office with a complaint. Once they start looking at them then the HOA will more than likely be compelled to start following other laws with regards to how they are acting. This may result in the HOA leaving you alone and backing off. Financial crimes could lead to jail time if they are misusing funds or not issuing the required reports. If they become so busy dealing with the state, they just won't have time of effort to spend on you.

Sounds like money is tight to hire a lawyer, look at paralegals as well. A well written demand letter can do wonders.

Another avenue for you to look at, here in Calif is small claims court. Usually a local law school or the small claims court itself has advisors to help folks through the process. They can not offer full on legal advice like a lawyer would do but they can help you determine if you can sue for something in small claims court. Judgement limit is now $10,000

You have to find whatever it is that is a legal cause of action. You will have to document damages.

Sounds like they are going well beyond the intent of your governing documents in watching your every move. This "might" be falling under the willful infliction of emotional stress which is a cause of action here in Calif. The only problem is, I do not think this one is allowed in small claims court (otherwise everyone would be doing it). Bottom line, it is time for you to see a lawyer. Other avenues to check for legal assistance is the local housing authority (they may have services to help), or go to any local law school as they may have clinics which help people for such things.

If what the HOA is doing meets the legal definition of harassment in Calif, then you may be able to get the courts help to file a restraining order on them. This is usually for a year but can be set for three years depending on circumstances.

As other posters have stated, mediation is required in Calif before going to trial. The HOA is mandated by Davis-Stirling to attend. Send them a letter requesting mediation via USPS with Return receipt for proof of delivery. Document their response. Mediation is binding. If they refuse, then you can go to a lawyer with this proof, this may give enough incentive for a lawyer to take your case on contingency since if you go to court and the HOA is a no-show, you can get a summary judgement from them and a court order requiring them to follow the Davis-Stirling Act.

let us know what you end up doing.
Good Luck

StaceyL (California)
Posts: 25

Posted:

thank you so much for all your advice - following up and will follow up and let you know what happens.
Their time limit the letter to me expires today (15 days per Davis Sterling) - with the last $250.00 fines for "noise violation".
So far I have not received any written letter from them explaining the fine and such - just the hearing on the 3rd.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By StaceyL on 12/17/2012 4:07 PM
I did try and explain my civil rights and they said the board makes their rules and they override city, civil etc -that when you live in a hoa situation, your civil rights come behind the rules and regs and cc&rs - which they change the rules and regs to their situation. Example, they called the police and wanted me cited for swearing - the police said it is not against the law and quiet hours are after 10PM (this was outside and overheard middle of day) and the member said they will make a rule that prohibits it - this falls under their blanket noise violation rules - most of their rules are blanket rules - they can be interpreted as they need and enforced for one person only if they see fit - per the board when questioned. Items get on the agenda if they see fit and can apply to one and not another. This is exactly what I am trying to fight. The mediator said they cannot help me because the board refuses to go.

I'm guessing that the door slamming was also during the day time and yet you got fined for it? I wouldn't have paid the fine.

Record the police call. Ask the police for some statement.

That's how you begin your harassment complaint.

When they attempt to abrogate your civil rights, you need to stand firm.

They cannot override (state/federal) civil law or city regulations. No discussion. No explanation. Just a statement. You need to repeat it and put it in writing. If they need an explanation, tell them to consult a lawyer and have the lawyer send you notification.

Assertiveness training wouldn't hurt IMHO.

JM10 (California)
Posts: 503

Posted:

Quote:

StaceyL (California)
Posts: 25

Posted:

I did not pay the fine of $250.00 and they are telling me monthly they are adding a $25.00 late fee onto it. I explained that they did not follow proper procedure, etc etc and that I had requested mediation and was denied by the board because the president didnt feel like it. The next month, I had another noise violation which they dropped. They still are "excusing a neighbor" for a noise violation (which could have been him instead of me the days I was not home) because he is contrite and apologetic and they "all get along". Our rules say all noise must be kept to a minimum at all times - and they are going after it like a pitbull.... to the point of having called the police in the past (who said no law against it until after 10pm).
I have another noise violation this month on the agenda, and plan to apologize and be contrite and see where it gets me. They say they can enforce a rule for me only and ignore it for others, or completely ignore rule violations for others repeatedly. Nobody else has gotten a warning letter, hearing or fine over rule violations. Just this last weekend I pointed out to the presidents wife a rule violation (after an hour of it) and was told she does not have time to read the rules shrugged her shoulders when I mentioned this was a rule of our HOA.
on the merry go round again - but standing firm.

FredO (California)
Posts: 198

Posted:

Quote:

Posted By StaceyL on 04/02/2013 3:31 PM
They say they can enforce a rule for me only and ignore it for others, or completely ignore rule violations for others repeatedly. Nobody else has gotten a warning letter, hearing or fine over rule violations. Just this last weekend I pointed out to the presidents wife a rule violation (after an hour of it) and was told she does not have time to read the rules shrugged her shoulders when I mentioned this was a rule of our HOA.
on the merry go round again - but standing firm.

Get them to put it in writing that they have the option of only enforcing against you. Make your own calls to the police to report other noise violations by others that "meet" the public law definition of noise.

In your governing documents, is there anything that describes or defines what a noise violation is? Like how many decibels noise has to be in order to be a violation of the cc&r's or other rules? Plus, how to they definitively measure this volume of sound in order to verify a complaint?

If they can't produce this sort of evidence or definitions that are reasonable (or will be seen as reasonable by a Judge) then you can tell them to go F*&K off and sue you. Wait for them to sue you, then do as Melissa always says, file a counter claim against them for harassment. Obviously they are stalking you by putting you under this level of surveillance. Let them file against you first, then countersuing them is cheaper for you.

Un-equal enforcement of the rules is a violation of your civil rights and you are entitled to equal protection under the law. The courts have found for Owners like you many times when you are being picked on. The fact they have made statements to you that you are the only one having the noise ordinance enforced against is not going to look good for them when it goes to court. Get them to put this in writing in one form or another - write a letter requesting a response and bait them into putting down. This will seal their fate if it goes to court. It sounds like they are flat out stupid enough to actually put something in writing for you to use against them.

Sounds like they are definitely NOT following the Davis-Sterling Act. Sounds like they have a really subjective rule on noise. This too, will not be well received by a Judge (when it goes to court - and it looks like it will have to to get it settled).

KevinK7 (Florida)
Posts: 1,343

Posted:

Is it possible to get a restraining order against these individuals? That way they have to keep their distance and if they poke their heads over your fence to spy they would be in violation of the order.

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By FredO on 04/03/2013 11:09 PM

Stacey,
This is spot-on. If your version of the story is correct, you are not experiencing HOA issues.
You are experiencing harassment which is manifesting itself in the form of run-ins with the HOA and clearly discriminatory ones at that.

Get them to put in-writing, or even record them stating that they can selectively apply rules. No judge will be favorable to them in that

If you haven't already, start documenting.... EVERYTHING. When you come & go, who you talked to, when they said violations took place, and especially who said what as closely as you can recall if you're not able to record conversations. As openly discriminatory as they are, I would expect them to self-incriminate if you held a cell phone up to video record a conversation.

An HOA has the obligation to fairly and equally apply rules. Failure to do so opens them up to a discrimination lawsuit (against which the HOA is probably not insured).

Schedule an appointment with an attorney. You should be able to find one that will give you a free initial consultation. Go in with your facts straight as well as an approximate timeline and the "who said what". Present things as factual, not emotionally, and see what they think your recourse may be.

FredO (California)
Posts: 198

Posted:

Stacey,

Are you a single Mom? are you a member of any other "protected class" of citizen as defined by the U.S. Gov't? Is your child disabled or been diagnosed with even a learning disability or the most common thing for kids these days - ADHD. If so, then what they are doing is discriminating against you to try to get you to move, this is blatantly against the law (in other words, some of them could actually go to jail/prison over this).

Sounds like they are a bunch of small minded bullies.
You can record them making their statements with your cell phone, make sure you know how to use it and can do so without them noticing. They are sure going to violate your rights and break the law with what they have been saying and continue to say.

Tell them, yet again, that they cannot violate your rights. When the dumb ass President responds that you have given up all your rights by living in an HOA, you will have him. Take the recording to a lawyer and possibly the authorities.

If you have a camcorder or even a decent smart phone, you can video them actually surveilling you (which is stalking and harassment).

After you get them dead to rights, have a lawyer write them a demand letter stating that you will sue them for "THEIR" homes and break the HOA altogether. Tell these a-holes that once you own their homes you will rent them out to whomever you see fit to.

You have to be assertive as they think they can intimidate and bully you. That is how these a-holes operate in many HOA's. A few people go rogue and ruin it for everyone.

Suing them in this situation is the right thing to do. The HOA is so small (I think you said 10 units) that the majority are harassing you. The others are guilty of allowing these bullies to bully you, so they deserve to be punished by higher dues and whatever comes of it. They are allowing this to happen. These idiots have already proven "what sort of neighbors" they are so sue the hell out of them and the HOA.

Remember also, if any of the board members are acting out of vindictiveness their D & O insurance may not cover them for some or all of their actions.

Good luck!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Seriously people who want to play "Victim" are just too annoying... Seems to me your logic would be the exact epitome of bullying. Drag the other people in and make them pay? Sounds like someone who doesn't realize what they are doing themselves is what they claim everyone else is doing to them. It's never a good idea to sue your HOA or the HOA to sue you. That's just showing you don't know any better and lack education on HOA's. Just putting that out there...

Former HOA President

StaceyL (California)
Posts: 25

Posted:

at our last hoa meeting, they now decided to go ahead with mediation to collect the fine that I said I would not pay (violated Davis Sterling on many levels). Interestingly enough, each time I have asked for mediation (free through our city) they have refused and now they are going only to move forward with a lein against me. One person even gave me a real estate flyer at the meeting and told me to call them and they will give me cash and I can move. They have said their goal is to get me to move before. I am standing firm - as their "fine policy" says recurring fines can be at any $ amount they determine and this could easily get out of hand if I cave and pay all that they accuse me of. I also have another noise violation - they refuse to divulge (based on their hoa rules) who is accusing me and only that is is "yelling". This one is 4 board members and 2 guests. It is turning into a witch hunt for sure.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Stacy,

As you know, with these type of complaints it becomes an "I say - they say" type of argument.
Typically if there are more than one individual on any one side of the argument, that can add credibility to that side. Therefore, make sure you bring any and all documentation with you to the mediation that supports your side of the issue.

StaceyL (California)
Posts: 25

Posted:

Exactly what his has been for 8 years. They get together and said I slammed a car door and my front door - 9 times within 10 days - some of those days I was not even home. I have been told by them (the board memebers) that they "track me" and "monitor me". The board is made up of 6 of 10 owners in a 10 unit complex. Only they get to vote on any issues - so no chance of ever voting them off the board. The hearings are held by the same people - the ones accusing me, they do not provide any evidence except their word that they all hear it and they "know" it was me. They decide the outcome of the hearing and the fines levied. There is no impartiality ever here. Unfortunately, there is no outside or top governing body hearing these cases or making sure things run as they should. There was another person who got a noise violation repeatedly, and theirs was dismissed (because they board president) said he went and talked to him in person and sees no reason to fine him or send a warning letter (they have multiple parking violations also over a year) on any issues and they are all dismissed. The only reason I am still here is because my son is in a good school and I don't think I should be forced out by a board for something I did not do. They have called the police and CPS and made false complaints - of which I have letters from the agency saying they are unfounded calls against me. If I pay their $250.00 fine for each time they say I have a noise violation, they will continue on this charade and do what they say and "take my place from me by fining me until I cannot pay". I plan on fighting it out. I have asked in writing for them to leave me alone like I leave them alone. I have had accusations when I have been 75 miles away at a horse show (and have the hotel receipts to prove it). There has to be some justice somewhere in CA about this kind of thing happening.

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