Board wants to restrict Property Managers presence at meeting

The Board, according to Davis-stirling.com*, does not have to allow you to attend the hearing in CA. They must allow the owner to attend.

I'm on our HOA board in CA, and we do allow property managers to attend in cases where the owners live out of the area. We've even permitted a tenant to accompany an owner to tell us about his situation, why the owner shouldn't be fined, etc.

But it's up to the Board. It might help if the owner takes a brief factual letter from you to read to the Board if you think it'll help.

*To learn more, See Davis-stirling.com, Main Index, Executive Session, Who May Attend.

Yup.

It sounds to me like it is an executive session, and if so, since you are not a board member, you have to be invited to attend.

Say, Larry, you have a point here. I looked again at the site below and here is the complete quote from the HOA law firm:

"Who May Attend. Directors, managers, recording secretaries, association attorneys, members subject to disciplinary action as well as witnesses called by either side (but only for that portion of meeting involving that person), and others invited by the board (such as vendors bidding on a project) may attend executive sessions."

Read more: Executive Session http://www.davis-stirling.com/tabid/1769/Default.aspx#ixzz2jorRn8Ab
from Davis-Stirling.com by Adams Kessler PLC.

So, if John were to be called as a "witness" by the owner, it appears as though the Board would need to let him attend for that portion of the session, etc. You might ask your owner to give it a try, John. I wonder why the Board is being so uncooperative?

As I said, a tenant came to an ES here with his unit's owner, units' property managers have attended when the owners resided out of state, and we also had an owner's attorney attend and say his piece on behalf of that owner, who attended.

The CA Civil Code that covers what may be discussed in executive session is 1363.05(b), but does not actually state who may attend ES. So perhaps the site relied on something else??? If so, it's unusual they don't cite their source, e.g., case law or whatever.

Sorry, Larry, I must have read it too fast, where is the reference to "industry practice?"

On page http://www.davis-stirling.com/tabid/1269/Default.aspx#axzz2jpnCdPc9 [Who May Attend Meetings] Adams Kessler refers twice to "industry practice."

In discussing whether to allow the spouse of an owner to attend, they state, "industry practice is to allow non-member spouses to attend board meetings."

They also state, "Industry practice is to prohibit non-member lawyers from attending board and membership meetings."

Richard,

Your policy sounds reasonable on the face of it.

The policy articulated by Adams Kessler makes no distinction between the kinds of meetings and makes a blanket statement that, "the legal right to attend meetings as provided for in the Open Meeting Act is reserved for members only."

While I would agree that the statute applies to members only, I found nothing in the law that would indicate that the legislature intended to permit associations to bar others from attending.

Richard,

This advice would seem to contradict the opinions previously cited.

The original question asked, and the Q/A quote above are two different issues.

The original question is for a managing agent of the association, and the latter is a individual property manager for a single unit.

These roles are very different. The managing agent's role is defined in the governing docs.

I'm not aware of any language anywhere that requires the managing agent to be present at any meeting, open or closed. The role of the manager is to perform the duties of the board. Other than providing evidence/advice to the board, the manager has no role at the hearing - its entirely up to the board.

As the managing agent, I would be thrilled to be asked to leave a hearing (although that never happens).

I took this to mean that the OP is a manager overseeing a single rental unit, not the association.

Carol,

I just read CA Civil Code 1363.05(b), The Open Meeting Act, again and failed to find any use of the word "only." The intent of the legislature was clearly to require associations to allow its members to attend its meetings. That is, an association cannot deny a member's attendance (except in some executive sessions). I find no expression in this statute that the legislature intended to bar others from attending. Nor did I find any language in The Open Meeting Act that even remotely implies that an association may adopt rules to exclude non-members.

Perhaps you could quote the exact passage that you feel limits attendance to members only.


That is what I am asking you. You say "CA Civil Code 1363.05(b) plainly states" something that is not there.


When the courts interpret the laws, they view the statutes as being the legislature's intent. I am sorry that those inexperienced in such matters find it perplexing. (I feel the same way when someone discusses quantum physics.) As far as I know, when the legislature enacts a statute they do not generally insert additional wording such as, "This is what we intend, by golly." Most of us seem to be accept that intent is reflected by the law itself.

John from California

Have your client take the association to small claims court and show them a resolution that specifically states lawyers or property managers cannot attend an executive session hearing. The association will lose 99 out of 100. For some reason, small claims commissioners do not like HOAs.

I cannot speak for California, but in Arizona one cannot be compelled to participate in a court action where he has no attorney. Both parties must consent to the no-attorneys rule otherwise attorneys are allowed.

I hope not as that case really does not address the issue.

The plaintiff was an LLC that owned a home occupied by the LLC's managing members. They sought to have their attorney attend the association meetings on their behalf. When the association refused, the plaintiff sued for an injunction.

The appeal stems from the fact that the trial court refused to issue a preliminary injunction. To obtain a preliminary injunction a party must show two things: 1) that the court is likely to issue a permanent injunction on the merits of his claims; and 2) that the plaintiff will suffer irreparable harm without the preliminary injunction. The trial court determined that because the plaintiff could attend the meetings in person that he would not suffer any irreparable harm and therefore was not entitled to the preliminary injunction.

Normally, a party would continue on with his case and seek a final judgment before filing an appeal. In this case, the plaintiff appealed the court's refusal to issue the preliminary injunction and the appellate court agreed with the trial court that the plaintiff had failed to show any irreparable harm. The appellate court did not address the issue of attorneys at meetings; the plaintiff failed to prove one of two required elements, thus the appellate court was able to uphold the trial court's order without deciding the other element.

One note of interest from this case: The ethical rules for attorneys require that when a party is represented by an attorney that all communication with the party must go through the attorney. Most associations have an attorney.

The association's attorney in this case insisted that if the homeowner had an attorney that all communications would have to be between the homeowners' attorneys and the association's attorneys. What he did not argue, but is a logical extension of his assertion, is that if the association has an attorney then all members would have to communicate with the board only through the association's attorneys.

The more I think about this the better I like it. Every time the board meets they would have to have their attorney present. This may cut down on the stupid stuff that HOA boards do.

Attorneys make most of their money defending people who did something stupid. I would rather pay a few hundred bucks for an attorney to advise my board against stupidity before they do it instead of thousands to defend it afterwards.