Board emailing notices of fines, rather than following Davis-Stirling

Started by JenniferM9 • 15 replies • 2709 views

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JenniferM9 (California)
Posts: 42

Posted:

Hello,

Our association's secretary is sending fine noticies and warning letters out via email rather than personal delivery or First Class Mail, which goes against Davis-Stirling. Is it ever okay for a board to not follow Davis-Stirling protocal?

Thanks!

Notice of Fine Policy

If an association adopts or has adopted a policy imposing any monetary penalty, including any fee, on any association member for a violation of the governing documents or rules of the association, including any penalties relating to the activities of a guest or invitee of a member, the board of directors must adopt and distribute to each member, by personal delivery or first-class mail, a schedule of the penalties that may be imposed for those violations, which must be in accordance with authorization for member discipline contained in the governing documents. Civil Code §1363(f).

Read more: Notice of Fine Policy http://www.davis-stirling.com/MainIndex/NoticeofFinePolicy/tabid/1752/Default.aspx#ixzz2HPq6bdPG
from Davis-Stirling.com by Adams Kessler PLC.

============================================

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Have you ever consider it is cheaper for the HOa to and takes less effort to update to new technolgy the rules? Notification is notification if it gets the message through...

Former HOA President

JenniferM9 (California)
Posts: 42

Posted:

Quote:

Posted By MelissaP1 on 01/08/2013 12:20 PM
Have you ever consider it is cheaper for the HOa to and takes less effort to update to new technolgy the rules? Notification is notification if it gets the message through...

I understand that, but my question is more in regards to Davis-Stirling which states how it should be done. Additionally, it would be very easy for the intended recipient to say they never received the email. However, my real question is why does Davis-Stirling state board protocals if it doesn't matter if they are followed or not?

CarolR11 (Colorado)
Posts: 2,563

Posted:

In CA per Davis-Stirling, calls to hearing must be delivered to the alleged violator by 1st class mail or personal delivery. The same is trued of the Board's decision following said hearing-1st class mail or personal delivery.

Is the secretary the Board secretary, Jennifer your type "association" secretary)? If iI were you, I'd write a letter to the board president pointing out the legal way to follow due process including 1st class mailing of the decision to fine (or not to fine). Your Board, after all, could be sued (thought unlikely) by a disgruntled member who claims s/he never received the illegal email.

By the way, Jennifer, it might be a good idea to review the rest of CC1363.

LauraR5 (Tennessee)
Posts: 220

Posted:

Last year, my HOA went over-budget on postage by thousands of dollars. Why? Because we changed several rules and we had to mail all 236 homeowners several documents throughout the year to ensure that they received the new policies. Of course, some said they still did not receive them. There's really no sure-fire way to guarantee a homeowner gets something besides knocking on his door and putting it in his hand.

Starting this year, homeowners who want to receive communications in paper form (except for violations notices, which still must be sent by postal mail) will be charged an administrative fee by our management company to cover the postage.

Yes, I know legally notices have to be mailed. But in this day and age, you can email someone and they get the document instantaneously to their telephone, something I'm sure they never imagined when they were writing the Davis Stirling laws. Personally, I'd rather get something in an email than mail, because I every time I get mail, I think about how little money our HOA has and mail costs money.

If there are shenanigans going on, then address the shenanigans. If they're aren't, and it's working, don't get so caught up in the letter of the law.

CarolR11 (Colorado)
Posts: 2,563

Posted:

There are many HOA materials in CA that Owners can receive by email including the annual budget & reserves summaries, annual audit, proposed rule changes and so on. But Owners must provide written permission. As a director, I certainly would not knowingly break the law and my Board colleagues wouldn't either.

But I don't know what's legal in Tenn.

The first version of Davis-Stirling (which applies to Cali only) was written maybe 25 years ago and has been revised numerous times. This is why is now includes HOA's being able to send all of the above by email if Owners want it.

JonD1
Posts: 2,350

Posted:

Laura:

Our documents require notification by...... are you ready...Western Union.

So if we followed the letter of our documents the MC would at the Western Union office (wherever that is if there is still one) sending out letters.

Legal guidelines like Davis-Sterling IMO are not the Holy Grail. To sit around working to find out where the leter of that law is being violated is IMO counterproductive.

Yes if two or more Board members end up in Dunkin Donuts at the same time one of them must run out to avoid violating the law. SECRET MEETINGS DS VIOLATION!!!!!!! CALL THE POLICE.

Is the use of e-mail causing a problem? If not then let it go.

Yes there could be a "they did not send me a first class mail violation notice" lawsuit. I would be willing to live with the risk.

Over the years we have tried to get together a list of e-mail addresses to use for emergency notices, water shut offs, and other items that are time sensitive plus they SAVE $$$$$$$$$$.

But that requires common sense and a willingness to act in violation of the law. I guess I'm just a law breaker.........

If you find yourself reading DS every night there is a problem and it might not be with your association.

JenniferM9 (California)
Posts: 42

Posted:

Quote:

Posted By CarolR11 on 01/08/2013 12:43 PM
In CA per Davis-Stirling, calls to hearing must be delivered to the alleged violator by 1st class mail or personal delivery. The same is trued of the Board's decision following said hearing-1st class mail or personal delivery.

Is the secretary the Board secretary, Jennifer your type "association" secretary)? If iI were you, I'd write a letter to the board president pointing out the legal way to follow due process including 1st class mailing of the decision to fine (or not to fine). Your Board, after all, could be sued (thought unlikely) by a disgruntled member who claims s/he never received the illegal email.

By the way, Jennifer, it might be a good idea to review the rest of CC1363.

Thank you!

Quote:

Posted By JonD1 on 01/08/2013 4:28 PM
Laura:

If you find yourself reading DS every night there is a problem and it might not be with your association.

No need to get snarky, I was merely helping a friend who is feeling overwhelmed.

JM10 (California)
Posts: 503

Posted:

If the notifications aren't made by personal delivery or first class mail as required, then your board will have a hard time collecting in small claims court.

After I explained this to the HOA board where I formerly lived, they sent an email to us. This meant that they failed to meet one of the four requirements for a hearing. They also wouldn't give the name of the complainant or allow us to see the evidence before hand or produce documents (meeting minutes) that might shed light on the issues we were to be fined for. They then failed to give us proper notice and by doing so met only two of the four elements required for a hearing.

The board took us to court and lost, but their behavior was also used against them during mediation. So we won three court cases and the insurance had to pay for the HOA board's failure to follow state codes.

Remind them that in small claims court and higher civil courts, service by mail or personal service is still required and in California a HOA board must meet similar standards for service.

JenniferM9 (California)
Posts: 42

Posted:

Quote:

Posted By JM10 on 01/08/2013 6:23 PM
If the notifications aren't made by personal delivery or first class mail as required, then your board will have a hard time collecting in small claims court.

After I explained this to the HOA board where I formerly lived, they sent an email to us. This meant that they failed to meet one of the four requirements for a hearing. They also wouldn't give the name of the complainant or allow us to see the evidence before hand or produce documents (meeting minutes) that might shed light on the issues we were to be fined for. They then failed to give us proper notice and by doing so met only two of the four elements required for a hearing.

The board took us to court and lost, but their behavior was also used against them during mediation. So we won three court cases and the insurance had to pay for the HOA board's failure to follow state codes.

Remind them that in small claims court and higher civil courts, service by mail or personal service is still required and in California a HOA board must meet similar standards for service.

JM: This is really good information, thank you so much!

CarolR11 (Colorado)
Posts: 2,563

Posted:

I have to respectfully disagree with JM about one item, Jennifer. In CA HOA's, the name of the accuser doesn't need to be revealed to the alleged violator UNLESS the accuser is the only person who witnessed the infraction. Or if the case does make its way to the courts (which has never happened in our HOA).

If Board members, property managers or security staff corroborates the violation, the HOA is named as the complainant on the call to hearing. The individual staffer or director need not be identified.

How this plays out in real life depends, though, on the size, staff, etc. of the HOA. Our Board wouldn't mail a first "courtesy" (warning) letter and then call anyone to hearing if the violation isn't cured based on one neighbor's complaint as we require corroboration.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By CarolR11 on 01/09/2013 10:42 AM
I have to respectfully disagree with JM about one item, Jennifer. In CA HOA's, the name of the accuser doesn't need to be revealed to the alleged violator UNLESS the accuser is the only person who witnessed the infraction. Or if the case does make its way to the courts (which has never happened in our HOA).

If Board members, property managers or security staff corroborates the violation, the HOA is named as the complainant on the call to hearing. The individual staffer or director need not be identified.

How this plays out in real life depends, though, on the size, staff, etc. of the HOA. Our Board wouldn't mail a first "courtesy" (warning) letter and then call anyone to hearing if the violation isn't cured based on one neighbor's complaint as we require corroboration.

I mentioned two elements of due process. We were not able to know who was complaining AND we were not allowed to view the evidence against us.

As Carol points, out, the HOA can be named as the complainant. In our case, there was no one named as the complainant. Not the HOA and not any individual member. So when I say the HOA wouldn't give us the name of the complainant I literally mean they wouldn't give us the name. At that time, the HOA wouldn't even tell us who was the president or secretary. At some point, they did tell us who the treasurer was.

So in actuality, I don't disagree with Carol. Carol is working under the assumption of a normal HOA. Most HOA boards will tell you simple things like who the officers are and don't require small claims court visits in order to find out this information. Our HOA board was so secretive, that they refused to inform the state of California who the officers were, one of the two required filings with the Secretary of State. As of last week, the State of California has processed all filings from the end of October and our HOA still hasn't filed those two documents.

In the actual complaint against us, if the board had been willing to look at the newsletters and the meeting minutes (the board refused to even give us the minutes) or even ask the one other former board member who was not married to a current board member, it would have been clear that both decisions were made by the previous board of directors. Further, one of the reasons, the board of directors refused to give us the other part of the evidence and a really good reason why one should always ask to see all records is that the actual cost of the so-called repairs was a few hundred dollars less than what they claimed was the actual cost. They meant to profit by this hearing. They tried to do this by presenting the "cost" as a contract proposal from a firm that they did not use. The work was done without a contract (illegal in California and against are CC&R because of the amount it cost). This is fraud. Because their loss in any of the three small claims court cases was not reported to the members and because of member apathy, our reputation was smeared. Proper investigation is due diligence and part of the fiduciary duty of board members.

In our case, we were being bullied repeatedly by threats of fines, including about dogs barking, but each time I asked for more information they declined to provide it. This hearing actually helped establish a pattern of abuse.

I write this for two reasons: as warning to HOA boards that they need to run their HOA like a business and not a schoolyard without a teacher's supervision and as a warning to all members that they need to look at the documents they have a right to see. As members, they have legal liability and that might end up meaning an added cost in insurance when their board takes such unwise actions. The insurance company would not have settled out of court for a few tens of thousands unless they were quite sure an actual court action would cost them hundreds of thousands. We took on the additional cost of mailing to each member an unofficial newsletter that warned the other members. No one stood up to support us. In which case, silence is tacit approval. There's a heavy price for apathy.

KevinK7 (Florida)
Posts: 1,343

Posted:

The way I see it, all laws should be treated the same. If the board could save money using email but the law says traditional mail, looks like the HOA better use mail. While the board may want to try and be "nice" about things and take into consideration the funds from the neighborhood, if they don't follow the law it would cost the homeowners a lot more. And homeowners should understand that it is a corporation - not some club that can do whatever they want.

JM10 (California)
Posts: 503

Posted:

Here's something that might help. This PDF is from HOA Law Blog This was written in March/April 2010.

I sent this link to my former HOA board, but it didn't help.

This is a more recent article by a different law firm about 2012 laws.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Thanks, JM, for including "recent article" that interested board members or homeowners can review re: recent legislation. Our MC is very good at keeping us directors and our PM up to date on these matters--sends us a summary of upcoming effective legislation at the end of every calendar year.

But for self-managed HOA's new board members, etc., the article JM includes is a very nice summary.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I should have added that the legislation only applies to Calif.

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