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DonB8 (California)
Posts: 12
Posted:
We have two neighbors locked in a long standing feud. One sends complaint letters to the board on a regular basis. Most, if not all, are completely baseless.
The second neighbor has finally had enough and wants to sue for harassment, and has requested copies of the letters the first party has sent to us complaining about him.
It's my contention that those are private correspondence and shouldn't be released unless subpoenaed in the eventuality of a lawsuit. That way we would remain neutral, and not divulge confidential information.
I don't want to take sides, and I don't want to break the law, so I come to you in hopes of receiving good advice. I realize this is a legal question, but thought I'd try here before spending money on an attorney.
Thank you in advance for any help you might offer.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Don,

If the board has found all of the first owner's letters baseless and has taken no action on the complaints made, a good argument can be made that the letters were a privileged communication between the first owner and the association. Even though the second owner was the subject of the letters, the letters were not directed to the second owner and the receiving party (the association) took no action against the second owner. Harassment normally requires some annoying activity taken directly against the victim or by inducing a third party to act for the perpetrator.

Hold on to the letters as they are part of the association's records.

I just took a quick look at Davis-Sterling, because you are in California, and you may not have an obligation to provide copies of the letters to the second owner as they are not financial records. Take a closer look at that site to see if there is a requirement to disclose non-financial records to the members. http://www.davis-stirling.com/MainIndex/Statutes/CivilCode13652/tabid/894/Default.aspx#axzz2IeZeKTCa

If the second owner proceeds with a lawsuit against the first owner, the second owner will have an opportunity to request those records under discovery in the civil proceeding.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Ahh, the old who is the complaining party question and is there a right to privacy. This has been asked before and honestly, it depends on your Associations enforcement policy.

My Association will respond to any written complaint and investigate the alleged infraction.
If the Association sees the infraction then, for us, the Association becomes the complaintant (similar to the police responding to a call, if they see something that is in violation of the law, then they are the witness to the criminal act). However, if the Association determines that their is not a violation at that time, they respond to the written complaint saying that the issue was investigated and no violation was found. The letter and the response is then filed in both lot files (the complainer and the alleged violator).

Each member is legally allowed to look at their file, and since the letters are filed in each lot file, the member would see them.

If your Association has a policy that each complaint of an alleged violation would be considered confidential, then you would need to follow your policy. However, considering that the Association is being caught in the middle, if your policy is silent I would suggest you get a legal opinion from your Association attorney.

CarolR11 (Colorado)
Posts: 2,563
Posted:
Welcome, Don!

Occasionally, alleged violators ask to see violations reports about their activities. Our Prop. Mgr. replies with the names & addresses of those who complained redacted from the complaint form or letter. We require corroboration of alleged violations, and the Incident Reports also are sent to the alleged violators. The security staffer, board member or PM or Mgr. Assistant's names also are redacted. Because we require corroboration, we RARELY get requests to see the actual reports. Occasionally, corroboration is in the form of time stamped pics, which also would be sent to the alleged violator. I don't know, though, if what we do is "legal."

We're high rise twin towers, though, so the alleged violator wouldn't automatically know who complained.

You're right, if this goes to court, the name of the complainant would need to be revealed.

Are the complaints about actual violations specified in your CC&Rs or Rules & Regs?

If you'r not familiar with it, Don, take a look at Davis-stirling.com for all sorts of info & legislation about CA HOAs that might help you. You still, however, may have to see advice from your HOA attorney.
DonB8 (California)
Posts: 12
Posted:
We did investigate each complaint and sent the complaining party a well thought out response on each one.We are as tired of the complaints as is the party to whom the complaints are issued. No action was needed or taken in any of the complaints.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By DonB8 on 01/21/2013 3:30 PM

We are as tired of the complaints as is the party to whom the complaints are issued.

I can understand that. Unfortunately, the Association must investigate each one.

We had a somewhat similar issue, the ousted architectural chair was bitter and complained about multiple things (99% were unfounded - which is part of the reason they were ousted) to the new committee. When the committee had had enough, we started to respond that the Association was unclear as to what covenant/rule/regulation was being violated and would they please provide the section. This lessened the number of complaints.

Additionally, where there was no violation we added the following in our response: However, per our governing documents (cited) and State law (cited), if they believed that there was a violation that they were free to file legal action at their expense against the member. For some unknown reason, once we started including that in the letters the complaints stopped.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
There is no harassment if no action was taken. I can send you a letter all day long about a member's grass being too tall but if the HOA doesn't take action then the member being complained about isn't be harassed. Plus it is NOT harassment if the HOA sends notification to correct an action.

It sounds like these two are trying to drag the HOA into their battle. Just don't let them. If they threaten to sue, then be it. Let them sue each other. Have their lawyers subpeona the documents from the HOA. Whatever happens just don't let them make the HOA their great divide/communicator.

Let them both know that the HOA is made up of EVERYBODY in the neighborhood. Which means that ALL members would also have access to the records as well if they want to play that game. You sue your HOA your suing yourself and your neighbors. Let that philosphy set in for a bit for them to chill out and back off the HOA. They need to put this into the police area and NOT the HOA to manage. Harassement is a legal issue NOT an HOA's.

I had a policy of reading correspondense we received at our open meeting. Let it be known if one writes a letter to the HOA that it will be read openly amongst all the members in attendance. It will still be a board decision what to do and how to respond. However, it will be known to everyone in attendance what is going on. Add a little embarassment to the mix. If they get into a fight then call the police.

Former HOA President
DonB8 (California)
Posts: 12
Posted:
We are getting some great replies, and some very helpful information from all of you. We really appreciate you taking the time to offer such good advice.
If anyone else wishes to jump in, please go for it..
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By DonB8 on 01/21/2013 2:23 PM
We have two neighbors locked in a long standing feud. One sends complaint letters to the board on a regular basis. Most, if not all, are completely baseless.

I say if they sent unsolicited mail to the BOD, then it is public information and you can share it with anyone you care to share it with.

The second neighbor has finally had enough and wants to sue for harassment, and has requested copies of the letters the first party has sent to us complaining about him.

I say give him the copies.

It's my contention that those are private correspondence and shouldn't be released unless subpoenaed in the eventuality of a lawsuit. That way we would remain neutral, and not divulge confidential information.

I say do not play lawyer. Th

I don't want to take sides, and I don't want to break the law, so I come to you in hopes of receiving good advice. I realize this is a legal question, but thought I'd try here before spending money on an attorney.

I say if uncomfortable then do ask for legal advice.

Thank you in advance for any help you might offer.

Glad to give my advice but I have been shown to be wrong.....more then once.....LOL
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
In my town, if someone complains and it is against some town rule, the town puts it with the property file. If it has merit, the town writes a response, and also puts a copy in the file. Anyone can go to the town hall and look at any file. Its public records.

If your all and mighty HOA thinks they know more than these highly paid professionals, go ahead and keep your secrets. Its only a delay tactic because it will be Subpoenaed/disposed/etc anyway.

So why bother hiding it?
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By TimB4 on 01/21/2013 3:47 PM
Unfortunately, the Association must investigate each [complaint].

Unless your covenants or state law mandate that the association must investigate each complaint, or the covenants give exclusive enforcement to the association, there is no legal duty to check into each complaint. The association has a lot discretion over which battles to fight.

I know of only one court case where an association was compelled to take an enforcement action and in that case the declaration stated that the association had a duty to enforce the covenants and that the duty was exclusive to the association. That is, members had no authority to enforce covenants on their own.

Sending the chronic complainers a letter advising them that they take legal action on their own dime is an excellent idea but I would do it before wasting too much time investigating.

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