HOA Management saying HOA Board Members Cannot Communicate with Owners - Stirling Davis Act

BrittneyB (California)
Posts: 8

Posted:

State: California

We have been having an issue with our HOA management company for the last 5 months. They have been exceptionally unresponsive to both homeowners and our HOA board. This has resulted in ongoing damage to our home every time it rains.

Our management company continues to state that the HOA board members are not allowed to communicate with us per the Stirling-Davis Act. We have sent several emails to both the HOA board members and our management company and never get responses. As a result, the management company is consistently providing false information to the board, delaying repairs that are the HOAs responsibility. We try to communicate with the board clarifying what is happening, and then the management company messages them privately saying they cannot respond to us. I have read through our CNRs and management agreement multiple times and nowhere does it say that they cannot contact us. I've also been trying to research and decipher the Stirling-Davis Act, and it is my understanding that the board cannot make decisions or hold unofficial meetings, not that they cannot simply respond to an email or ask follow up questions.

We are in the most convoluted, shady situation and I'm worried it needs a lawyer at this point, which I cannot afford.

Any resources or advice is much appreciated.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By BrittneyB on 05/05/2023 11:47 AM
I've also been trying to research and decipher the Stirling-Davis Act, and it is my understanding that the board cannot make decisions or hold unofficial meetings, not that they cannot simply respond to an email or ask follow up questions.

This is true. However, best practices is for owners to communicate with the board (1) between meetings only through the manager; or (2) using the statutorily required open forum segment of board meetings. Proceeding otherwise loans itself to some chaos. The best directors might accept an email between meetings and simply say, "I will forward this to the board." Individual directors should not be responding to concerns any further than this, as this easily leads to misunderstandings.

How often do your HOA's bylaws require board meetings? Are you receiving proper notice of these meetings, as required by law? Did you know California law requires that the board offer an "open forum" segment at each board meeting, where owners can raise concerns. Do consider beginning to read here: https://www.davis-stirling.com/HOME/H/HOA-Board-Meeting-Open-Forum

davis-stirling.com is a site authored by a certain California law firm. I think it is an outstanding resource, though not all of us here agree with it all of the time.

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

BrittneyB (California)
Posts: 8

Posted:

The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

CathyA3 (Ohio)
Posts: 6,299

Posted:

FWIW, last year we were informed by our manager that homeowners should contact her with questions and issues, not talk directly to individual board members. Liability was mentioned. This had followed an abrupt resignation by one of the directors a few weeks earlier.

No details were provided, so it's hard to tell if we're dealing with some misbehaving board members, an overly controlling manager, or a little of both. I lean toward the third option based on other things that have happened, but who knows...

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By BrittneyB on 05/05/2023 12:08 PM
The meetings are only held 1x per month; we have to email same day before 12pm to get an invite code - and I am allowed only 3 minutes to speak and then the board is told they cannot respond or ask questions. So at what point can we actually communicate with the board and address their concerns? That leaves us with communicating to the management company, who is not communicating to the board (we have an insider on the board who is on our side but doesn't know what to do to help).

I presume these meetings are held online. I think the requirement to get an invite code is okay. It's certainly not illegal. The time limit has to be reasonable. From discussion at this forum, I think there is general agreement that three minutes is "reasonable."

Here are the limits of what the Board can do during the open forum segment:
https://www.davis-stirling.com/HOME/O/Open-Forum-Questions

The reason for the limits is because the board is supposed to stay homed in on discussion of only what is on the agenda. The agenda was presumably properly noticed. Owners decide whether to attend or not based on what is on the agenda. To get into a long discussion of something not on the agenda would possibly violate California law.

You can go to a meeting and speak about how whoever is telling the board it cannot response at all, not one bit, seems to be mistaken. Refer them to Civil Code 4930(b).

This insider can ask for topics to be placed on the agenda. The insider should start reading at the davis-stirling site, preferably here: https://www.davis-stirling.com/HOME/S/Setting-the-Agenda

Is your board holding annual elections? The easiest path to major change (such that the board is complying with the law and covenants) is to change the board majority at the annual election.

On some issues, if the board is not complying with the law despite repeated requests, you should consider "Internal Dispute Resolution." See https://www.davis-stirling.com/HOME/I/Internal-Dispute-Resolution

You want to remain polite and just-the-facts of your requests. Stick with the most egregious violations of the law. Always cite the law or covenant when making a request to do xyz, staying humble. None of here are attorneys. Several of us are "armchair paralegals" who aim to help people prepare for a meeting with an attorney or possibly get boards to see the light.

Note on posting here: After clicking on the "Submit" button, wait ten seconds. Posts always come through after clicking on "Submit" just once. It's just not always immediately obvious that posting was successful.

TerriS6 (California)
Posts: 3,284

Posted:

The Davis-Stirling Act does not prohibit board members from talking to homeowners. The fact that you never get a response is not a good sign. The management company appears to be practicing law without a license! The board is required to make diligent investigations about anything brought to their attention that is within their authority. It sounds like the management company anticipates litigation for some reason. The board is not required to allow members to speak only at Open Forum. It can entertain comments at every agenda item if it wants to.

Board is required to give 4 days notice for a meeting and provide an in-person venue during the meeting in addition to Zoom and phone. If you request all meeting notices be sent to you by email, they have to do it. The Open Meeting Act is patterned after the Ralph M. Brown Act for government agencies. They are limited as to discussion during Open Forum - you can read the limitations online. Another good site is findhoalaw.com put up by Tinnelly law firm. Just remember most law firms specializing in HOA law represent the board not members so their advice is usually how the board can protect itself.

JamesB37 (California)
Posts: 351

Posted:

I would ask for a copy of the management contract - I did and I was quite surprised about some things that were in it:

"Agent will correspond with homeowners and others concerning compliance
with Association documents, homeowners' requests, architectural and
maintenance matters, and other items within the scope of Association's
responsibilities."

This was a real eye-opener, especially since I found out our 'agent' was also the community manager of another HOA:

"as part of this contract will provide a 100% dedicated manager and assistant that will work in the
XXXXXXXXXXX office for the sole purpose of managing XXXXXXXXXXXXX Association."

Lastly, there is a section of the law when it comes to document requests in California:

(h) Requesting parties shall have the option of receiving specifically identified records by electronic transmission or machine-readable storage media as long as those records can be transmitted in a redacted format that does not allow the records to be altered. The cost of duplication shall be limited to the direct cost of producing the copy of a record in that electronic format. The association may deliver specifically identified records by electronic transmission or machine-readable storage media as long as those records can be transmitted in a redacted format that prevents the records from being altered.

I always ask for records in 'electronic format' to be delivered by email. When I first started asking for documents, the HOA attorney wrote that I had to go to the PMC's office to pick them up and the cost would be 15¢ per page. Once I pointed out the 'electronic transmission' option, they have just been emailing them to me at no charge.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?secti5205&lawCode=CIV

MarkM19 (Texas)
Posts: 1,459

Posted:

Brittney,
You really did not state what the issue is you are having with your property. If you have an issue that needs repair or replacement it is not the boards job to handle these items. It is the PMCs job and if the job does not get done then the board should step in and escalate it with management. If you send a request in by email and get no response resend it and you have an email trail of the lack of service.

The reason why Managers do not like board members reaching out to owners is because if 1 board member says anything it becomes "the board told me" As the president of our large HOA, I can tell you that this can and does happen. With FB and the other social media sites out there, it is very easy for a board member to get caught up in the moment and try and help. I always advise my board members if this happens, they must make sure that say in the communication that they are not speaking for the board. They are just 20% of the board giving their personal feedback.

Sounds to me like you have a weak board that may be hiding a bit from their duties. Property Managers get paid to do the daily activities in the HOA.

The time for you to speak at a board meeting is correct and normal. If I were you, I would ask for your comments to be noted in the minutes and depending on your issue the item be placed on next month's agenda so you can hear the board discuss at the open meeting.

Without knowing more about your service issue, it is a little hard to give any real advice.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By MarkM19 on 05/05/2023 3:35 PM
Brittney,
You really did not state what the issue is you are having with your property. If you have an issue that needs repair or replacement it is not the boards job to handle these items. It is the PMCs job and if the job does not get done then the board should step in and escalate it with management. If you send a request in by email and get no response resend it and you have an email trail of the lack of service.

The reason why Managers do not like board members reaching out to owners is because if 1 board member says anything it becomes "the board told me" As the president of our large HOA, I can tell you that this can and does happen. With FB and the other social media sites out there, it is very easy for a board member to get caught up in the moment and try and help. I always advise my board members if this happens, they must make sure that say in the communication that they are not speaking for the board. They are just 20% of the board giving their personal feedback.

Sounds to me like you have a weak board that may be hiding a bit from their duties. Property Managers get paid to do the daily activities in the HOA.

The time for you to speak at a board meeting is correct and normal. If I were you, I would ask for your comments to be noted in the minutes and depending on your issue the item be placed on next month's agenda so you can hear the board discuss at the open meeting.

Without knowing more about your service issue, it is a little hard to give any real advice.

I agree with everything you said under normal circumstances. However if I take her statement, "We have been having an issue with our HOA management company for the last 5 months. They have been exceptionally unresponsive to both homeowners and our HOA board. This has resulted in ongoing damage to our home every time it rains.", at face value then there may be a need for a board to communicate directly with a homeowner.

KerryL1 (California)
Posts: 14,550

Posted:

With MarkM, please tell us how the rain enters your home. Is it a condo? Can you cite your CC&Rs where it says the Assoc. is responsible for the damage? Look also in the insurance section of your CC&Rs.

In our HOA, too, Owners communicate with the PM. But, the board does make decisions at open board meetings about reimbursement or repairs when it's debatable about who's responsible. Our condo HOA's board probably has 2-3 such requests on every monthly open meeting agenda. Almost every month, th requester is turned down because they want reimbursement for something our CC&Rs clearly show is their responsibility.

I'd say your best bet is to submit an agenda item via the PM to the board requesting that your repair or reimbursement request be on the next board open meeting agenda. Show your evidence from your CC&Rs about why you should be reimbursed or the HOA should make the repair. Some CC&Rs have a Maintenance Matrix in an Appendix that shows who's responsible for what.

Meanwhile. AT the next open Board meeting, make your reservation for open forum required, and speak clearly with your evidence about why the Association should reimburse you or make repairs. Ask that your request be on the next open meeting agenda. Your open forums allow 3 minutes, ours only allow two.

But others are correct, no board members should correspond privately with you or any Owner. It leads to misunderstandings, just as others suggest. Not only that, some directors are ignorant and may give you incorrect info. You want the entire Board to somehow hear you. Why? Because ONLY the entire board may make a decision. And act. That ONLY may occur at noticed meetings of the Board. So, why doesn't your friend on the Board place your item on the agenda of the next open meeting?

Do read your HOA's contract with your management company too.