board voted to selectivly limit hours that one common area is available to residents. What can we do

I live in a 55+ resident owned community in California and am a volunteer in maintaining billiards room equipment. This community is quite large and has four clubhouses. Last Wednesday I went to enter one of our billiard rooms and found the door locked. This room is adjacent to what is called the children's pool. The pool was crowded and one of the residents informed me that the association had closed the common rooms at this clubhouse at 4:30. This person informed me that the reason stated was "security". She told me that the reason given was that homeless people were sleeping on the pool tables. I have been performing my volunteer work on the billiards rooms for approx three years and never has there been an issue with homeless trespassing in the rooms that I, other pool players have encountered nor the association has informed me of.

We do have a professional staff that includes a maintenance manager and an operations manager. I began to drive to the next clubhouse to see if that billiards room was locked when I noticed one of our service vehicles parked behind the association office. I knocked on the door and the operations manager answered. He informed me that the board had voted on Monday to close this clubhouse at 4:30 in the afternoons for unspecified security reasons. He said I should go to the other clubhouse to play. I informed him that when the board had discussed in an open meeting the prospect of closing all common facilities at 4:30 that many residents used the billiards rooms in the evening and might choose to do so on the day of at dinner. It would be impossible to provide amenities to residents through an "after hours" sign up that would be feasible to residents. They wanted to close laundries, the library and living rooms as well. They did not go through with it and I believed the issue was closed. Naive me. (I want to point out that this billiard room is the largest and is the only one that includes a snooker and a true billiards table. Plus it is the only one that has been updated after 20 years of deferred maintenance and is carpeted, a feature important to seniors.) When I do enter the room in the mornings I find evidence of players using the room at night and I also am there at night and see other players.

I have stated that the children's pool was occupied when I arrived. I have been here since 2011 and I know people who have lived here for as long as 25 years and to my knowledge clubhouse and recreational facilities have always been open until 10PM and if not mistaken pools and jacuzzis until 11 PM on Fri and Sat. I was at the jacuzzi at one of the clubhouses Sat evening until nearly 11 and there were two people there when I left. Many nights of the week I have been at the pool areas until or after 11PM including in the presence of our security guard. My point is that if the rules state 10PM yet they are not enforced regarding the pools. Cleaning people turn motion detectors on in the clubhouses starting at 10PM and when they do so residents leave. To summarize, the clubhouse at one of four is being shut down at 4:30 while all other facilities are still operating under the rules of 6:30AM until 10M (not enforced). The board voted to do this on a Monday. I became aware on Wednesday. It has not been posted to date.

I and many of my neighbors want this to go back to the traditional hours. I am looking for advice and confirmation of my understanding of our rights. The first right would be that no rules can be changed as in enacted until being posted to the residents. Would residents have the right to comment before it is enacted? The next right that comes to my mind is the right to quiet enjoyment. We pay for the amenities. We have a tradition of hours as stated above. The affected billiards room closed is unique and not just for the above description. It has the best space, layout and lighting. By lighting I am referring to large picture windows that impair vision when playing in early morning and late afternoon evening in the other two billiard rooms. In addition those rooms are run down and have not been updated except minor things some of which are actually broken such as drapes and window blinds despite being updated who knows when. (Despite being made aware of these issues the board ignores these concerns). Can anyone give me feedback on a cause of action against the association related to a breach of the right to quiet enjoyment via selectively restricting the hours of this facility?

When I went to the clubhouse on Saturday it was locked. I learned that this was not due to oversight but that the association had actually locked it up for the whole weekend. The operations manager neglected to tell me this when we spoke on Wednesday. Incidental to this I called a pool player friend of mine who I know plays on weekends in that room as the carpet is good for his back and is convenient to the 90 year old he plays with who uses a walker. His wife answered. When I told her the reason for the call she told me that her neighbor who is a board member told her of the vote stating that kids from the children's pool were going in the room, messing with things and sleeping on the pool tables in wet bathing suits. Beyond being contradictory to the homeless story it to me is patently absurd. I am there often when the kids are at the pool with grandparents and parents. They are carefully supervised by the adults and do not come in the room. It is astonishing to me that they would close this room even if it happened only once. It is punishing the innocent because of the (alleged) guilty party. In researching this issue I came across a post that mentioned associations taking actions that are illegal or not allowed for being "Capricious and arbitrary". I would appreciate feedback on this.

Following the ops manager suggestion, past experience when this association illegally attempted to force me to remove my over the air TV antenna and addressing the neglected work on the rooms I am writing to the board; asking them to re-open because of the failure to notify, spell out in detail alleged security issues plus preparing to elicit support of the residents to protest and reverse this unfair rule. Finally with the above in mind, in particular "capricious, arbitrary and denial of quiet enjoyment" should we engage an attorney to address this? The community has an arbitration clause with losing party paying all attorney fees.

More importantly read the section on vetoing rule changes.

James

Typically a BOD can make Rules & Regulations controlling the times a common amenity is open. You best bet is not to argue their authority but work to get them to have open hours that better suit people.

Hope this helps.

I agree with the other posters that the board has the authority to set hours for HOA facilities, and unless your documents say otherwise, there is no requirement that they all have the same hours. I doubt that any of the pseudo-legal arguments in your original post would have any legal standing.

They might not have done the required notices, but if you bring that to their attention, they could just make the same decision in a properly noticed meeting. As John says, the fastest and easiest course of action would be to work with the board to understand the problems and help them come up with solutions. Barring that, the next step would be for yourself and like-minded people to run for the board in the next election so you can bring about some positive change.

James,

You have gotten great ideas from many on this forum. I only have one thing to add - gather support.

One person complaining can be seen as a minor issue. However, if you have several members of the Association complaining about the new rule, it may be more of a squeaky wheel that the Board want's to oil.

I really appreciate all the support however I will confess that I am not pleased to hear, although given what I have experienced and read on these forums about boards, I am not surprised that responses state that they can make rules for different hours for different facilities. In certain circumstances I understand this. However my assessment of our community tells me that there is not a crisis in this facility that necessitates locking out the residents at what is an unreasonable hour on the boards account. And I repeat that they attempted to do this two years ago to not just this facility but every single one, common clubhouses and laundry rooms and billiard rooms as well. They proposed a signup request for use of facilities after the 4:30 time. This time incidentally seems to have been suggested and chosen because that is when the paid staff goes home. This is a staff of 8 people including the two positions named. They do not have the responsibility and rarely get involved with policing any trespassing or other nuisances.

Someone asked about the size of your community. We have over 1400 single homes on several square miles laid out on city streets. There are a number of unknown rental units but it is significant certainly not just a few percent. I myself in fact am a renter. Yes there are monthly board meetings for the community. I don't want to get off track but will note that the paid staff sits on the dias with the board, makes motions, interrupts and responds even before board members. I had professional reason to attend board meetings in more than one department of a major city and the executives of those organizations sat at a "reporting" table facing and responding to the board and definitely did not participate with them on the stage.

GlenL you suggested installing key card locks on the facility. I had suggested that to the Operations Mgr (OM) when we discussed issues with trespassers at the pools when the gates had no locks. He told me it was too expensive. The board eventually installed fences around the pools inside the L and U shaped buildings with fences enclosing open areas and added locks with a 1-5 key pad and gave out the code. Next they complained about homeless and theft of toilet paper in clubhouses and installed motion detectors that are turned on when the buildings are locked up at night. Last summer they did a test run with a security guard in summer months. Between the key pads and the guard the pool trespassing diminished as I believe did other trespassing although they leave the club houses unlocked to the street side save for the club house at issue in my first post. It has only had the doors inside the key padded gates unlocked until 10PM when all facilities get locked (in whatever order the cleaning people get to them). And finally a couple of weeks ago they installed security cameras at the pools facing the pools from two sides and cameras focused on the jacuzzis at two of the four locations. Those two are indoors.

I will repeat that I spend a good deal of time in the billiards room and have neither encountered or heard of any transgressions nor have I seen vandal type results as one person claimed. There was vandalism shortly before I lived here. Young teens who have aged beyond their delinquent behavior. There is no damage in this billiard room from any current incident. Period. Children sleeping on billiard tables? In wet bathing suits? This as stated by a board member even if true is a child rearing issue not call for lock down. Anything that would convince me that lock down is called for would already be self evident. I do not expect that the board will convince me that they have sound reason for what they did. My boots are already on the ground. If there is a trespassing issue I have a simple solution, one that is already used at another facility, the shuffle board building. A key. All the association has to do is make do not duplicate door keys, charge a deposit and provide them to residents paying a deposit who desire entry when the room gets locked. This is not difficult.

John I confess I react with questioning their authority when it is illogical. To address directly what you said John, the hours were reasonable, although I could easily stay until midnight, there does need to be a rational time for the responsible persons to secure all the properties at night. I have no problem with it. They have changed the hours for basically two facilities that people are most likely to use, one is a laundry room and the other is our premiere billiards which as noted has the only snooker and billiards tables. They still have some trespassers at other clubhouses at different hours both day and in the middle of the night. Yet they are not or rather have not closed those spaces at 4:30 and perhaps not pointed out earlier on the whole weekend which is what they have done to our billiard room. They know full well it is used by responsible residents at these times. The changed rule is clearly not well thought out. I do know that in the past they had homeless sleeping in at least one laundry room in a different clubhouse as well as thefts and real physical damage to those spaces. They did not lock the rooms even at night. They did resolve those thefts by moving from coins to tokens. Again there has been no physical damage in the billiard room since before I lived here. Yes, what we are trying to accomplish is have the reasonable hours reestablished. It makes no sense to lock up a room that has residents sitting outside it's door at the pool especially when there is a roving security guard that comes around until 10PM to deter and deal with nuisance issues.

Kerry, there are nine positions on the board from President to secretary and four directors. I do not know the details about the four day notice or the quorum. I have noted above that I am a renter not an owner. I am engaged in this because I am a volunteer in the billiards. I know owners, one of whom who is an avid pool player and he has said nothing about a 30 day notice. His wife whom I mentioned in an earlier post told me she did not want me to inform him about this because they had weekend guests and the news would upset him. She characterizes the boards action as "cruel". I can assure you there is no emergency. An emergency is responding to remove a homeless person who encamps in such a space and refuses to budge. Such an interloper can be arrested. Locking out those who have rights to the space is not a solution at least not in a reasonable persons mind. OK. OK. I have spoken with more than a few people who are ready to take action. I will be creating the flier and distributing it with help to every home. It will present as a petition to be signed and an invitation to address the issue to the board at an open meeting. So yes Kerry owners do speak at open meetings.

I'm sorry, James, I didn't notice in your OP that you're a renter. In other words you're not a member of your HOA. It's the owner of your unit who should be addressing the board with a letter. Boards do not need to listen to renters. Whatever communication you want the board to have should go to them via the owner. I'm surprised that you're even permitted to attend Board meetings.

You still can rally others--especially owners to request the Board to resume your previous open hours.

The website is named after the legislation called the Davis-Stirling Act. Grey Davis was former guv of CA. Larry Stirling was a legislator, then judge. He's now a member of the law firm that puts together davis-stirling.com. If you know owners in your HOA who are interested in changing the Board, direct them to this excellent site.

Update on the closure of out common areas. I had a conversation with the operations manager in which he told me that the closure was not a rule change but an "administrative decision" to close the rooms as a way to manage the facility. He said he talked to "his lawyer" and was told that that was legal. I am researching the rules. I don't have at hand a particular copy of those. However as stated earlier I was told when moving in that I could use pools and jacuzzis anytime I wanted and have for three years plus with club house and recreational facility hours of 6:30AM to 10PM. I thought I saw this written down at one point.

In any case I would appreciate if anyone knows anything about a boards right to selectively close one facility that is in all respects serving the same functions and usage as other similar facilities I would appreciate the feedback.

I am confused. You stated you lived in a 55 plus community but there is a children's pool? I live in a 55 plus community and not children are allowed to live in a unit. Of course grandchildren can visit. But if we had a pool of any kind which we don't, I don't think we would provide a pool for children.

Douglass:

I get that the board can set different hours for different facilities in rules changes. The change made here was not in accordance with Stirling Douglass (Calif. Law) in making changes. No 2. The other facilities are of identical purpose as in laundry rooms and billiards rooms. The kind of problems they have at the closed facility are in kind to the problems at other facilities so why close this one. Further making this one different is that it is the sole facility that is locked to the public street. All others are accessible to anyone from the street.

Bonnie:

Yes they built a pool for children who visit. Children are not allowed to live here.

Glen:

Operations manager is full time. I need to confer with him to perform volunteer facility care. I approached him about the closure. He suggested that we request a meeting with the board and petition for keys for pool players. While this has a possibility of working it does not help the woman who could not get in the laundry room yesterday does not drive and does not have the health to take laundry blocks to the next laundry room.
I know I know it's not Texas. The place was developed over years as separate communities by builder and then combined when residents purchased it.

Back to my question from yesterday:

Operations manager claimed that closure was done outside of rules as an administrative decision to manage this particular facility all of which exists to serve the needs of the owners. Does anyone have experience with this kind of action? I want to know if it is allowable under Stirling Davis.

Bottom line is James does not like the new Rules & Regulations, and were I in his position I might not like them either, but the new Rules & Regulations are well within the power of the BOD.

The PM or whatever, is in the uncomfortable position of delivering the BOD message to James and James does not like the message.

James hangs his hat on different rules per different amenity but I see no issues even if I did not like.

I suggest James deal with the BOD and ask for exceptions (key cars, controls, etc.) that work for him.

In the beginning of this discussion it was stated that in order to change a rule the board must comply with California's Davis-Stirling Act requirements in changing rules to whit that notice must me posted for residents for thirty days and that open discussion at board meeting must occur.

In the interim the Operations Manager said it did not apply because the decision was based on "administrative management of the facility" in question. No one as yet has said that such action is legal or not by a board however I have now had occasion to review the community policies and procedures.

I quote relevant section directly from the P&P:

"Guidelines relating to the use of [unnamed association] Clubhouses and other common area facilities.

(11) Requests for use of facilities by individual residents, groups, activities and or COAs...... The resident will agree to the following rules:

# F. Clubhouse hours: 6:30 am to 10:00 pm."

While the above occurs in context with requests for private parties and such it does not read as exclusive to that function. For example, a local horse shoe league has meets with other communities on a regular schedule.. And as long as I have lived here (3 1/2 yrs) and as long as my neighbors can remember, well more than one decade all clubhouses and common facilities such as exercise room and saunas have held to these hours on a general basis and not just for special events like birthday, wedding, anniversary, etc...

Would you think that the Davis-Stirling Act applies to the boards decision to close the billiard room and other clubhouse rooms at this particular clubhouse? There is a laundry room being closed here but it is defined in the P&P as a special facility so I suspect it might not fall under the same aegis.

James,

Sorry, you are NOT a member of the association and have NO SAY WHAT-SO-EVER in the HOA's business !

If you don't like the terms of your lease, or feel that the terms have been changed, take up the issue with your landlord.

OR

In the words of Judge Judy: Mooove

Tough love is love, nonetheless.

You disagree with a BOD decision.

You have no standing as you are not an owner/member of the corporation.

If you like it where you live ... be quiet and enjoy.

If you don't like it ... be quiet and move.

Either way the corporation's business and/or decisions are NOT your concern.

Those are the FACTS, if you disagree with them you will get better results baying at the moon.

I presume you were told such by your landlord.

Take up the issue with him/her.

imo:

as a nonmember you should NOT be permitted to volunteer and disburse funds on behalf of the association

you were given the ID because the member designated their use of the amenities to you as their tenant

evidently the 'managing agent' for the association also acts as a/the broker for rentals

your lease is NOT with the association but with the unit's actual owner

you merely signed it in their agent's office

the owner signed covenants called Covenants, Conditions, and Restrictions (CCRs)

these run with the land and establish the HOA and the Corporation of which he/she is the member

Davis-Sterling governs the MEMBERSHIP and the CORPORATION not the TENANTS

you signed a contract (lease) with said member which includes the delegation of their right to use the 'common elements' of the HOA

You, my poor naïve sucker, have been 'Bagged and Tagged'. ~ Bagged as in you need to pay the landlord and tagged as in IDed and literally tagged with your very own personal ID.

YOU HAVE NO SAY WHATSOEVER IN THE OPERATION OF THE HOA regardless of how they pretend to allow the sheep to have a 'voice' at the 'town hall' meeting of the corporate BOD (in order to keep them and the landlords happy and QUIET)

make enough waves and see just how fast your landlord gets rid of you

CAVEAT EMPTOR

ps. when I unknowingly bought into an HOA (mea culpa) I realized that I shot myself in the foot ~ never ever another HOA for me

trust me, no matter how you try, how you twist and squirm, you will never ever win your battle as a nonmember vs. the HOA

they are merely 'nice mouthing' you in order to maintain the status quo ~ and they will gladly accept any and all free labor which you are willing to provide

you are totally and helplessly at their mercy ~ your only possible recourse is with your landlord who rented to you

BEST OF LUCK TO YOU

Douglass, JohnB26: I must concede that you are correct. Our CC&R's do have a section that defines a member as "record owner of a lot in the development". It was my recollection that when the board appointed me in writing to have the authority to take actions to care for and make expenditures for the care of the billiards rooms that I was informed that as a resident I was a member. It was my understanding that that definition covered my acceded rights to common area services and amenities but excluded me from ownership rights of voting. I was also aware that by definition I was not afforded rights to speak at open meetings, however by courtesy I did find myself allowed to speak at meetings. Our CC&Rs do state that the board may appoint or delegate authority to "persons" in the conduct of affairs of the association.
It is in this capacity as "caretaker" of the billiard rooms that I have gotten involved in all this.

Glen: It is my observation as well as that of my concerned neighbors, home owners, that the incidents of "security issues" neither rise to the level of closure in the designated hours nor that closure is the appropriate response to deal with the issues. Privileged or not they have shared with me and my fellow owners statements of incidents that first make no sense for closure and second have not occurred in the affected property. It becomes absurd to lock the billiards during the hours that a security guard is patrolling the premises. It is clearly a knee jerk response. They have shared with me their intent to close all clubhouse facilities in this community during these hours. What is getting lost here is that a rule has been changed selectively outside of the authority of Davis-Stirling. Remember Davis-Stirling calls for only 120 days of emergency changes. Members deserve to have the board follow the law and provide members a voice and transparency in the boards actions. That has not occurred here. I know I know I am just a "resident". Please read the title of my thread again. It asks "what can we do". I am simply a person with skills (gathering information here, coordinating action and communication) working with my members to protect the members rights. It is not just me against the board. We have written a letter and gathered scores of signatures asking the board to redress the closure, mainly in looking for a way to gain entry to a locked facility. Locking it is not the real problem. Locking out members is.

JohnB26: To clarify, in addition to the above reasoning as to why I have been allowed to volunteer and conduct the affairs I have conducted let me clarify that I have not disbursed association funds. I have purchased materials and paid bills out of my own money and then been reimbursed in keeping with the budgeted amount for that care taking. Again I did so only after and under the written authority and approval of the board. I have during this closure issue been verbally removed from that role by a member of the board. Since day one I have been aware of being exploited by them as free labor. Unfortunately without stepping up proper work would not have gotten done. I was instrumental in getting them to remodel a room suffered twenty years of neglect. The verbal abuse and lack of support made it a thankless task. I am saddened that they could not respect me, their own property or provide the kind of support and guidance to make this place the "prominent" community of their mission statement.

Another clarification. I have signed a lease handed to me by my landlord. A great guy and I am not bagged by him. We all have to pay to live somewhere whether it is a mortgage, taxes or rent. And yet again yesterday I was handed a new copy of a lease agreement by the association for me to sign and agree to. It demands that my landlord (who must also sign) that rights to eviction be handed over to the association for "any rule infraction". So yes if they want to be real ugly, they can toss me out for as little as sitting in the jacuzzi for a few minutes past 10pm. While the risk of making waves is real life is not best lived by rolling over and taking it. Evil does triumph if "good men do nothing". I am not looking to overstate the case here. It's more like the Arab proverb "There are two times a man makes a fool of himself. When he speaks when he should remain silent and when he remains silent when he should speak". Naif that I am I manage to pull both of those off. Yet, I spoke up in the past because I was right and won. They went koo koo with threats to my landlord when I put up my broadcast antenna. It took some digging and pointing out the protections of the FCC for them to back down but if I accepted powerlessness I would have voided my own rights. I am not twisting nor squirming, I am fighting along side my neighbors to achieve what is right. I am confident that will occur. Not at all because I am an over reaching resident but because it is right and because it is what the home owners want. Boards aren't giddy with power. They are also naive and act on their power without foresight.

And John, thank you for sharing your position on HOAs. From your first post I thought you were a candidate for the kind of board I am frustrated by. I will be very very happy when I am no longer faced with their small mindedness. Oh no, never would I buy into this place.

p.p.s.

The original lease you signed with your landlord may have actually been a covenant violation by HIM vs. HOA. It may not have met certain restrictions contained in HIS CCRs.

If it had been compliant you probably would not have signed it as it would be just like the proffered 'new' lease which IS compliant.

The compliant lease will attempt to impose the CCRs upon the renter DIRECTLY but will strip all protections from the renter leaving him at the BOD's mercy.

HOAs do NOT like renters. They attempt to 'protect' themselves from the perceived 'stigma' of the lowly renter.

DO NOT SIGN THE LEASE PROVIDED BY THE HOA ~ IT WILL BECOME YOUR WORST NIGHTMARE

BEST OF LUCK TO YOU

;)

James what you don't seem to understand is that even if the Board violated D-S, there are zero repercussions unless the owners undertake it. The owners alone have the power to veto the rule change as long as they do it in a timely manor (within 30 days), they have the power to either recall the Board or vote in replacements at the next election to reverse the rule and finally they are the ones that have standing to take the Board to court to reverse the rule.

Thanks Kerry: I did look there but could not find a citation about evicting tenants. I did find something on another site: http://www.hoaqanda.com/index.html (a California specific site):

EVICTION BY ASSOCIATION

Q.
Can the board of directors of our homeowners association evict the tenant of a member if the tenant is violating rules of the association?

A.
No. Only the owner of a property can evict the tenant. If the tenant is violating rules of the Association, the board of directors should take action against the member. This can be in the form of a nuisance lawsuit or fines. Some associations have included language in their CC&Rs allowing the association to evict tenants. I believe this is a dangerous approach.

I can gain access to read the CC&Rs to see if we have language allowing eviction by the HOA. Certainly the lease I have signed every year signs the right to evict over to the HOA. I certainly don't like it and will consider not signing at this time.

CAVEAT EMPTOR

Should your next rental be in an HOA I would recommend NOT HAVING ANY DEALINGS WITH THE BOD and only deal with your actual landlord.

THEY must deal with the HOA as a covenant / business relationship; your only contract would be with your landlord.

Having said that, it would be in YOUR interest to read the rules and regulations imposed upon your landlord which, you, as his/her tenant would be 'expected' to follow by the HOA.

Many times the tenant is sold a 'bill of goods' by the landlord and then is stuck in HOA purgatory between the rock (HOA) and the hard place (landlord).

The landlord must deal with the HOA and the tenant (landlord has a contract with both).

If one is the tenant one must deal ONLY with the landlord (tenant has ONE contract).

BEST OF LUCK

(it is their loss when you run far away)