Board Harasses Members

Our HOA Board has been using it authority with no consequences to harass and discredit member it does not like. One case was a children’s birthday party where a member rented the clubhouse and was accused of leaving cigarettes buts around. Another member was accused of turning off the main water lines and posting signs for maintenance without any authority from the Board. In both case: THIS NEVER HAPPEN and there are witness to refute these claims. When the Board was confronted at the Open Meeting as to why they are making up these stories, they would provide no answer and make no statements deferring it to a private meeting where they would be the five Board officers against a single homeowner.

I believe there must be some law where a Board cannot use its public authority against individual members to discredit and harass them. Do any one of you have a solution for this problem? It is making for a very uncomfortable community.

I am being harassed by my HOA and not only do they make up rules that are not in the CC&Rs, but they actually sent multiple letters claiming that I was violating a rule that I wasn't and was also clearly the responsibility of the city. The CC&R's state that Code Enforcement should be contacted for parking and inoperable vehicles. When I wouldn't move the car parked in my driveway that my neighbor didn't like, a complaint was filed with the city. Someone from code enforcement came to my home to follow up on the complaint and cleared me of any alleged violations because I wasn't breaking any laws. I was then called to a hearing because they kept saying I couldn't park my car in the driveway since the tags were expired, but that wasn't anywhere in the CC&Rs so they tried to say it was a commercial vehicle which was not allowed. The hearing request also included a new alleged violation that I had never been notified of.When I got to my hearing and told them that my car wasn't a commercial vehicle and I had been telling them that for months, they told me I was violating a different rule which they had never notified me of (I got the first letter about this new rule in the mail the next day) so I was completely unprepared to respond to. They ended up fining me $50 for the violation that was never documented prior to the hearing, was not true, and they had no documentation or evidence to back up the claim and $50 for a city ordinance that I wasn't violating. That car has been moved to a mechanic's garage so I can get it registered and park it on the street. Since then, I have been written up for having a basketball hoop in my driveway which is not in the CC&Rs and I have documented at least 10 other houses with basketball hoops in their driveways and using Google maps, I have proof those basketball hoops have been there since 2008. Today I got a letter saying that my trash cans were on the curb at 9:45am the day before trash day and they aren't supposed to be taken out before 5:00pm. Since I have been working nights and don't even get up until 10:00am, I am 100% positive that the trash cans were my neighbors since he always brings his out first thing in the morning. And of course, there was not picture or anything to back up their claim. Sorry for the rant, but I live in California, I have spent many, many hours reading the Davis-Stirling Act and I have quoted civil codes in my letters to the HOA - it doesn't matter......they just ignore it. Since it is 4:00am and I am not asleep, that should give you an indication of how much stress this is causing! And now I shall respond to my violation letter.

Thanks for the quick response! I did go to an attorney who reviewed all my documentation and recommended that I move. He felt that it would cost me too much money but he did think I could get the maximum amount if I went to small claims court. Unfortunately, I am very confident the complaints are coming from one of my neighbors who will always find something to complain about regardless of what I do. When I was called in for my first hearing, I told them that I knew he was the one who complained so now they always say they saw the violation during a normal drive through the neighborhood. My neighbor has been complaining since we moved in 8 years ago and my husband figured out how to get him to leave us alone by threatening to do physical harm, but unfortunately my husband passed away 4 years ago and I will do anything to avoid confrontation. I am also self-employed and still haven't recovered financially from when I didn't work in order to take care of my husband and I really don't have much fight in me and small claims feels like it would be a a huge undertaking for me.

Since we just put a new board in place last month, I think the trash can violation was done with the new board. We do have a property manager that does all the communication for the board so it's hard to tell.

Regarding the basketball hoop, I would accept that if the violation letter was sent within a few months of getting it, but it had been there for 18 months and I got the violation a few months after I moved the car my neighbor didn't like. Plus, there was another house on my street that had purchased a hoop a year after I got mine and his is still in his driveway all the time.

1. Did you pay the fine?

2. Get everything in writing and build up statistical information.

3. The board has to provide proof. If it cannot and still fines you or if they do not follow the required notification for a hearing and the notification of violation, then in small claims court, they will likely be denied. In this case, I would have not paid the fine and then waited for the board to take me to small claims court. You can also check to see if these items were discussed at a board meeting prior to your notification. If not, then you ask if they are holding secret meetings, also a no-no in California. If an issue is NOT on the agenda and the agenda isn't properly posted per state law and your CC&R, then it should never have been discussed. This includes in executive meetings.

4. The HOA board can't ignore certain letters, particularly if you ask for third party mediation. The homeowner member can refuse, but not the board. If the board refuses, then it is in violation of state law.

! well said !

As a related question, is testimony from directors sufficient evidence? If so, it seems hopeless where the board is the prosecutor and the jury. Or if hired help or other homeowners can be recruited as "witnesses", the verdict could again be guilty even without any verifiable evidence that is more reliable than just words.

Edit: Meant to say "If challenged, board has to provide proof of adequate notice and opportunity ..."

If a director is a witness, then that director should not vote at the hearing because of conflict of interest. This is recusal and part of Robert's Rules, but also part of our justice system.

In this manner, the prosecutor, witness and jury should not be the same. If a director is a witness and was allowed to vote, this is a problem of due process. This is also why a person has a right to confront his/her accuser(s). To learn that the accuser/witness is the judge should be grounds for an alternative venue.

Witnesses could be found, but to say recruited would sound like someone is being coached.

If the HOA Board does not understand due process and the evidence used is questionable, then a small claims court judge can help resolve the problem, but before that a mediator might be used.

From the Stirling Davis website: ADR REQUIRED. As provided for in Civil Code §5930, an association or a member of a common interest development may not file an enforcement action in superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution.

Read more: Request ADR http://www.davis-stirling.com/MainIndex/RequestADR/tabid/1249/Default.aspx#ixzz3EpFYpGni
from Davis-Stirling.com by Adams Kessler PLC. If your association needs legal assistance, call us at (800) 464-2817.

If I was going to take your idea to the extreme, then I would wait until all the board members are at the pool and then pee in the pool. No director could vote on a ruling against me.

There is no such thing as an automatic conflict of interest just because a board member both observes and incident and decides on an incident. Conflict of interest has to do with having personal interests that might conflict with the best interests of the HOA, not with the possibility that a person wears more than one hat (which all directors do from time to time). Of course, a voluntary decision to not vote could cut down on potential noise from the peanut gallery, but if the peanut gallery is so delicate, there are much bigger problems in that HOA.

Due process is about adequate prior notice and an opportunity for an unbiased hearing. Nothing you have stated indicates that a hearing before the HOA board will be automatically biased just because a director observed an event.

If someone is being coached or recruited as you suggest, then it's time to change the make-up of the board. If information presented by a director is questionable, then it may be time to change out that director. But once again, there are no automatic rules of mandatory exclusion. It always depends on the situation.

There are two types of due process: substantive and procedural.

Because a HOA is a nonprofit business in California and, you might be interested to know that every state has its own definition of due process, there are codes or laws that govern it and in some cases elements must be fulfilled it there is a conflict of interest.

In general, you never want the witnesses to be the judges.However, this is not addressed in the California code regarding conflict of interest (5350) and that specific code does have instances of automatic conflict of interest and mandatory exclusion.

I made note of the word "recruited" because someone else used it and questioned the definition of the phrase.

The original topic is harassment by the board. If this is true, then I am providing suggestions in how to handle it.

Yes, if there is harassment by the board, then the board needs to change.

Hi JM

You certainly have many positive common sense ideas. It is truly unfortunate that gender bias and an autocratic board member spoiled the experience for you.

It appears from what you say that the HOA board was comfortable with keeping its head in the sand on many critical issues and retaliated against you for upsetting the apple cart.

It would be interesting to learn more about how the various courts dealt with your complaints. Could you share the contents of those judges' rulings with the rest of us.

Not sure what you are saying here: "The last time, I challenged the court's decision and showed that the court was wrong in its interpretation of the law."

Are you saying that you appealed a judge's decision, and the appellate court reversed that decision? Or are you saying something else?

First court case with judge #1.
We brought the case because we were being refused entry to meetings. This was the initial reason.

Prior to filing the court case, I at great length explained the codes via email that required open meetings in the state of California. I cc'd all three board members. The board members were asked orally, but more importantly, in writing about the meeting times.

We also asked for the minutes to the meeting to which my husband was refused entry. We received the minutes on our doormat. The meeting minutes listed the date of the next meeting which was that exact day. This means, all three board members were well aware of the date, time and place of the next meeting but refused to disclose it until after the next meeting. We had up until that day posted the question on the community board only to have it ripped down. We then posted the question "When is the next HOA board meeting?" on our garage door and on our entry door.

We were then told that the meeting was an executive meeting. California limits what can be discussed in an executive meeting and the meeting minutes still must list them. Further, if the agenda hasn't been properly posted (per California code) and distributed (per CC&R), then nothing can be properly discussed.

After the case was filed and received by the HOA board, the HOA board then allowed my husband entry, but forbid him from speaking at all.

We asked for mediation, but were denied and threatened with various fines for things that were not listed in the CC&R and I challenged. The board claimed and told the other members that they had consulted with a lawyer, but they never produced the name to us, when requested, or later to our lawyer. They didn't know the difference between the Davis-Stirling Act and the Brown Act (which they called the Browning Act).

We asked for financial documents and insurance. We were ignored.

Two board members showed up in small claims court. They wouldn't even tell us who the officers were, but we learned much later that the persons were the president and the treasurer. The treasurer did most of the talking. They produced letters from other HOA members saying we were horrible people or that our dogs shed too much or that there was a problem with barking dogs (which there was, but it wasn't our dogs and they had to back down and it never came to a hearing on that issue). The judge rightfully told them that this was immaterial. It did, however, show that there was a secret meeting during which they decided to have more secret meetings with each individual member and urge them to write such letters.

This was a 10 unit HOA. Not everyone wrote letters. If the judge wasn't paying attention, she would not have realized that one came from the wife of a director and another came from a director. Note that the wife was the former president.

So by the time of the first court case:
1. We requested notification by email of the meetings.
2. We requested the handover of financial documents and insurance documents.
3. We requested that the board be sanctioned.

The board was fined $600 and had to pay court costs. The board (2 of three members) agreed to mediation on the other issues. The judge totally supported my posting fliers to ask about the meeting--something that the board was sure would be a penalty for us and even listed that as one of the instances of trouble making.

Court Case #2 under judge #2

The board wanted to charge us for the installation of a lawn (damage to community property) and fraud because my husband had been a director (treasurer) and had accepted money ($5 per week) for maintaining and taking out the recycling.

Although I explained via email about the elements required for a hearing and due process, the board failed to fulfill all the elements and I advised my husband not to attend.

We were found at fault and charged about $2000 or more.

The problems in this were:
1. Due to the drought, the former board that included my husband as treasurer, the current treasurer's wife as president and another person, had unanimously voted to let the lawn die.
2. Although the decision was unanimous, the board only singled out my husband to take on the cost.
3. The board refused to produce newsletters and minutes about this decision.
4. The board also came about amount by using an estimate from a company that they did not use.
5. By looking at the financials (papers we requested and received as a result of court case #1), we could ascertain that the actual cost was much less and by looking at the work, the cost included the removal of a cherry tree and work on the driveway. This was fraud and quite easily exposed in court.
6. We were able to produce newsletters that showed this had been a board decision. No one had objected. In SoCal, the lawn was going to die with so little water anyway.
7. Since my husband was a director, he should NOT receive monies for being a director, however, directors aren't usually required to do janitorial services. I had previously explained this to the board.
8. Procedural problems would be the manner of delivery and the person who was making the charges was also a director making this a conflict of interest.

We counter-sued for
1. More documents, including the newsletters that everyone but we were receiving
2. Copies of the contracts for all the work
3. The two documents that all HOA are required to turn over to the state and where at that point delinquent.

Only the treasurer showed up.

The judge denied this motion.

Court case #3: Under judge #2
I challenged the judge based on the corporate law, Stirling-Davis and the chilling effect it would have on free speech since the newsletters are supposed to be open to all opinions. So that means I was using California codes for HOAs and corporations as well as the federal law as guaranteed by the Constitution.

The board argued against it but the judge didn't buy it. The judge required that documents be produced, but failed to delineate all the documents.

There is no appellate court when you are the person making the charge and challenging the decision. You go before the same judge and explain very politely how they are wrong. I wrote up the brief by myself.The judge wasn't happy but respected what I was saying.

By this time, we had a lawyer because the board had refused to respond to the free mediator and had not provided the insurance papers. This means they were in contempt of court. The board actually never showed up to mediation, but the insurance had to pay for two full days of a professional mediator.

Because the board continued to have secret meetings and because they and the rest of the members weren't afraid of legal liability we decided to move and sold at a loss. The board actually did much to prevent us from selling our home. Even though we won the cases, they continued to prevent us from attending meetings. The treasurer even stole three signs from our balcony. They refused to meet after our inspector found termites.

The board of directors was definitely at fault, but so where the members who refused to do anything about it. Using our own money, we notified all the members about the termites. I know that a year or so later more termites were found, but no tenting was done. Whenever I mentioned legal liability, people denigrated me and said that they wanted to be just friendly and like a family. WE also had been cleaning up animal feces, clearing the drainage grates during rains to prevent flooding in all of the garages and clearing out the spiders (there was a spider infestation, but by year #2, I wasn't going to do it any more).

In all cases, I informed all of the directors (all men) of the legal codes and what code they were violating via email. Ignorance is not a defense, but it also isn't a defense when someone has told you about the legal codes.

I did not feel that the treasurer was a stable person and some of his actions displayed problems with anger management. So I did fear that if I had stayed that there was a potential for more intrusions in privacy (since to steal the signs he had to climb up on a ladder to reach our balcony) and possible violence against me (and not my husband). I had, after all, won three cases as a result of the policies led by one man and supported by at least two other men.

To warn other people, I have written about this and will continue to write about it.

"I think there's a lesson to be learned from this: Don't expect the courts to fix a bad relationship."
Yes, it would seem that as more and more of these cases hits the court system, they, the judges are learning just that. When it's one HO against the HOA, right or wrong, they will see it as a bad relationship. Now bring in many HO's to fight the board, maybe then it can be judged on it's merits.

Thank you for posting your cases here, it is valuable reading material.

All

JM10 is a newspaper writer so she could be prone to look/start/incite issues as fodder for her columns. Her hands are not that clean when it comes to HOA's.