Small Claim Court Judgment

The HOA won a small claim court judgment against a homeowner for delinquent special assessment. The judgment was appealed and was reinstated by the appeal judge. The judgment money was not satisfied by the homeowner, however, the homeowner hired an Attorney who sent a letter to the HOA requesting documentations for his client, which was already provided to his client through out the course of the trial. Her Attorney is insisting that the HOA to supply the information.
My questions, does the HOA have the right to deny the request until the judgment is fully paid? The CC&R limit the homeowner right to the full use and enjoyment of his individual owned subdivision interest when a judgment of a court order to pay assessment duly levied by the Association, does that include financial documentations?

I'm not an attorney but I don't see how a trial can ensue with evidence given regarding the validity of the unpaid charge(s), have a judge's (and appellate judge) decision for the monies to be paid, and then have the loser's attorney ask what the charges are for! I would think the HOA could deny the request cold. If the homeowner has a problem with that, she could file a separate action based on HOA 'rules' etc. But the special assessment case is done imo.

That said, if the request is an easy one to fulfill (Mark's question), maybe it would be more practical to just go ahead and do that.

A few pages plus a copy of the Condo. Bylaws.

Bylaws as in recorded in the deed, or separate and not recorded?

It is best to turn this court judgment into a lien as fast as possible. A lien will prevent them from selling the home without paying the judgment. A court judgment allows them to run off and not pay. It can take years and it has to be renewed in a few years in order to collect. A lot of wasted time and money. A lien would be the first recommended means of action before going for a court judgment/lawsuit.

CC&R's and Articles of Incorporation are PUBLIC documents and filed. They are filed at the local courthouse for the CC&R's and Articles of Incorporation at the State level. By-laws are a bit more complicated. Some states do require by-laws to be filed with the CC&R's. We do it as a "courtesy" as the by-laws are typically PRIVATE to the corporation/HOA. However, the CC&R's override the by-laws regardless. Not sure why they would even bother with the by-laws.

I say if it's the CC&R's they want, then the lawyer should know they are on file at the courthouse and NOT the HOA's responsibility to provide. The only person with any slight responsibility to provide the HOA documents was the previous owner. There are no requirements Realtors, Lawyers, or the HOA provide these documents to a potential buyer. It is the right of the buyer to be informed... Thus why the documents are kept PUBLIC. It is a just good "business practice" in my opinion for a HOA to provide documents.

Yes, they are on the hook for paying the special assessment if it was voted on properly and put into place. I had a person who tried to skip out on a special assessment for us getting separate water meters. It was a special $350 amount. They refused to pay and even their dues. Tried to get the tenant to pay... We foreclosed on them and their tenant sued them and won. All they had to do was pay the money owed and kept the house...

Unhappy HO has a new attorney, which is why they are requesting the docs, they are so wrapped up in it that they will fight it until it kills them or their job, marriage, etc and they found one attorney who will milk it because they can, in hopes of "finding fault" with the last attorney.

Cynical? Yes. Send it to them, it's easy enough to do.

Most people do NOT know the documents are available PUBLICLY prior to purchasing. First time I bought into a HOA, I had no idea what the documents were until closing day. They were then brought to the closing by the previous owners. A scenario I've heard time and time again. Who is going to hold up closing to read documents? If you just finished a lease agreement and have a moving truck parked outside?

You are NOT an owner until you sign the dotted line. Which means that by-laws NOT typically being "Public" are not always available until closing. The other ones are available since they are PUBLIC. I can't fault someone in purchasing in a HOA for NOT being properly informed of the documentation due to how the system works. Each state is different in the requirements of filing as well. I can't speak for each and every HOA on the planet on how, who, and if documents are provided. I can only state that By-laws are typically "Internal" HOA documents and CC&R's/Articles are PUBLIC. You may not get a copy of the bylaws until purchase day.

I have been through a similar issue and we had to foreclose on the person. However, we never sued them. We simply filed a lien for unpaid dues and unpaid assessment. We put in a policy of 6 months we liened once I was in office. That way we did not "randomly" pick and choose who we collected on. A solid collection policy shows one is not "selective enforcement". Which is what it sounds like the new attorney may be trying to prove.

Our person went through 4 lawyers and stiffed them. Their renter they had paying off their second mortgage in a "false rent-to-own" scenario went on to sue them in court for back over payments. I testified in court over the matter. We were able to finally foreclose on the property. It took about 8 months and the property sat vacant for over a year due to issues. Eventually it sold at a tax auction for unpaid taxes. We could not touch the property.

So I would consider going the lien process ASAP and making a solid collections policy. That way this won't happen in the future. 6 months lien, 1 year CONSIDER foreclosure. Stop going the lawsuit route...

Melissa

In California, governing documents are required to be provided when escrow has opened, not when a person is signing the final documents at closing. Matter of fact, California Civil Code §4530 requires the seller to provide the buyer ten different documents and the request cannot be deny except for payment of the fees.

As the OP is from California, it might be helpful to provide correct information per state laws.

Thank you, I agree with you, why the attorney want the documentations is beyond me, the case was settled by the appeal judge. We will file a lien on the property to protect the HOA, usually SCC judgments are hard to collect.

Alex, I very much like Larry's elaboration of our overall general advice.

Thanks, Richard for repeating CA statutes on the point of H/Os having access to their governing docs. In addition, in CA, but also in MANY states sellers, must provide many documents to buyers well before the close of escrow, not when the UHaul's engine running curbside! But whenever I ask Melissa what the AL law about this, which must be what she keeps repeating, she never replies.

But I'm curious about your quote here, Richard: "A delinquent homeowner does not have the right to the private side of the site, if there privileges were properly suspended, in California, its called due process."

The privileges that our HOA may suspend are in both our CC&Rs and are repeated in our bylaws. They do not include barring the delinquent owner from the private part of our website. Please cite your source, Richard. And even if so, the HOA still is required to provide them to this Owner.

Kerry

I was going to add, the documents are available to them, but at a cost to them. The website is an amenity, that they choose not to enjoy because of lack of payments.The private side requires a username and password given to them by an administrator. Of course, this is only done after due process. If, they become delinquent after they had signed up, and after due process, their log-in is suspended or cancelled.

Kerry

I suggest you have it added with either your R & R's or Collection Policy.

Sure, why not give them back the key to the pool so they can work on their tans while reading the documents(s) they freely choose to ignore?

I'm with Amanda (welcome to the forum), Richard. I don't see how suspending access to the protected site benefits an HOA at all!! We won't be amending our R&Rs for that reason. Or is there actually something fun on your protected site? Anything on ours, an Owner can get from our PM via written request. So why make more work for our PM?

In our urban high rise, suspending controlled access Visitor Parking privileges really does work!

Alex

I am not nor do I play a lawyer.

My reading is the person had their day in court and the new lawyer is looking to find grounds for an appeal.

That said, my advice is do not play lawyer. I suggest you respond with the required information that an owner would be entitled to. Do not add Internet suggested legal comments, play lawyer mumbo jumbo, etc. Do not play lawyer. Play photo copy button presser only especially if what they are requesting is simple enough to do. Send the copies with a note saying as per your request and no other comments/wording, etc.

My other advice is turn the request over to your association's attorney. This is the same advice as above. Do not play lawyer.

Hope this helps.

A client not being honest with their attorney, what a shock that would be!

I still like your advice best, Larry.

Larry

It would shock me that they never told their lawyer about the other courts but it is possible. Thus I would advise if going sent copies requested also send any copies of the court verdicts but again, no comments, only copies.