Why not illegal for board to retaliate?

Started by TerriS6 • 27 replies • 832 views

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TerriS6 (California)
Posts: 3,284

Posted:

In California, why is it not illegal for a board to retaliate against a member who invokes the provisions of the Davis-Stirling Act?
I think Colorado has such a protection.

ElleN (Idaho)
Posts: 4,420

Posted:

That California HOA statutes lack an anti-retaliation section is a shame, AFAIC.

I know of no state that has such a HOA statute section.

The Fair Housing Act has an anti-retaliation section, for those who retaliate against anyone filing a fair housing complaint. The retaliation must clearly be linked to the FHA complaint. One cannot just infer that because xyz was done to an owner that xyz is retaliation. The causal link that is required is much discussed in the case law. The anti-retaliation section is one of the most invoked sections of Fair Housing Law (along with the FHA sections covering discrimination based on familial status and disability). Employment discrimination statutes (state and federal) also have anti-retaliation sections.

While the standard is high to prove retaliation, it nonetheless would help thwart retaliation at least a little, in my opinion.

I see a HOA anti-retaliation statute section was proposed by the Colorado legislature around 2016. It does not appear to have become law.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A counter-suit is NOT considered retaliation unless the court determines it was filed in such. The HOA has every right to collect money owed as any other party involved in a court case. So if you file a lawsuit against your HOA, they can file back. They can also demand their expenses be paid if the lawsuit was found not valid. It is called "damages". The court system can only make one "WHOLE". Meaning each party involved is allowed to collect what they paid out once the court decides. They are not entitled to a "profit" nor in most cases punitive damages. It is very very rare for a court to decide there is punitive damages involved in a small claims court or other court levels.

Former HOA President

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MelissaP1 on 08/20/2023 9:44 AM
A counter-suit is NOT considered retaliation unless the court determines it was filed in such. The HOA has every right to collect money owed as any other party involved in a court case. So if you file a lawsuit against your HOA, they can file back. They can also demand their expenses be paid if the lawsuit was found not valid. It is called "damages".

False.

Quote:

Posted By MelissaP1 on 08/20/2023 9:44 AM
The court system can only make one "WHOLE". Meaning each party involved is allowed to collect what they paid out once the court decides.

False.
Either a statute section or the provisions of the Declaration must specifically say the prevailing side gets its attorney fees paid by the losing party.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 08/20/2023 9:44 AM
A counter-suit is NOT consideredg retaliation unless the court determines it was filed in such. The HOA has every right to collect money owed as any other party involved in a court case. So if you file a lawsuit against your HOA, they can file back. They can also demand their expenses be paid if the lawsuit was found not valid. It is called "damages". The court system can only make one "WHOLE". Meaning each party involved is allowed to collect what they paid out once the court decides. They are not entitled to a "profit" nor in most cases punitive damages. It is very very rare for a court to decide there is punitive damages involved in a small claims court or other court levels.

The board has never "counter-sued" me. It didn't even appeal any of the court's decisions.
The HOA only has a right to collect money when it follows legal procedures.

By retaliation I mean slanderous personal attacks at every meeting for 4 years, threatening to fine me $100./day for something not in violation, illegally posting my personal info in a public area for at least 4 months total, doing no road maintenance for 4 years, including no pothole repair, and announcing to members at every opportunity that it's my fault, and on and on, stating at meetings we are the worst neighbors they've (chairman and director wife) ever had yet never once complaining to us about anything.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Ellen that is the definition of making one whole. The money one spends filing and legal fees is part of the making one whole. It is not just what your suing for. You are to leave the lawsuit as if it never happened. That is whole.

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

Well, there are defamation and libel statutes, which are civil actions, you can sue (again). A Google search indicates there are 4 elements of libel and five for defamation, so if you think you have the evidence to prove them, go for it.

Of these, I think the most difficult you have to prove is damage to one's reputation, so maybe you should start there. Can you PROVE your relationship with your neighbors has been flushed down the sewer because of the board's actions? Are you getting nastygrams in your mailbox and emails? Threatening phone calls in the middle of the night? Can you show a change in behavior from before all this started to what's happened since?

I think of what happened to the election workers in Georgia and what lies and dsmned lies did to their lives (remember they received DEATH THREATS) vs.you being threatened with fines. I'm not suggesting your situation isn't annoying and shouldn't be addressed, but anyone reading comments on this website knows or should know it's never easy to speak truth to power.

You've shown you're not afraid of them and so now it's looking more like a passing match between you, the board (more likely the chairman and wife), and I wouldn't be surprised if everyone else is sick of all of you and don't care either way. Maybe it's time to stop and think a bit and choose your next battles carefully and get some allies.

By the way if there hasn't been road maintenance in four years, wouldn't that affect everybody in your community? Why would the board say "we hate Terri, so we'll show her be not repaying the roads". That doesn't make any kind of nonsense.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

TerriS6 (California)
Posts: 3,284

Posted:

I wouldn't go the defamation route...it's bigger than that. It's being punished for availing myself of consumer protection laws.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MelissaP1 on 08/20/2023 10:42 AM
that is the definition of making one whole.

When it comes to attorney fees, this definition is irrelevant.

Quote:

Posted By MelissaP1 on 08/20/2023 10:42 AM
It is not just what your suing for. You are to leave the lawsuit as if it never happened. That is whole.

Nope. See my post responding to your first post. Attorney's fees are often not awarded to the prevailing side. Why? Because of what is called "The American Rule." Which of course you will not look up.

What your posts offer to readers here is an example of the director who has no interest in learning and, even when told the correct answer, continues with the wrong answer.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 08/20/2023 10:26 AM

By retaliation I mean slanderous personal attacks at every meeting for 4 years, threatening to fine me $100./day for something not in violation, illegally posting my personal info in a public area for at least 4 months total, doing no road maintenance for 4 years, including no pothole repair, and announcing to members at every opportunity that it's my fault, and on and on, stating at meetings we are the worst neighbors they've (chairman and director wife) ever had yet never once complaining to us about anything.

If statutes prohibited retaliation for complaining of violations of D-S and the covenants, then some of the above might meet the standard for unlawful retaliation. Some might not. The nexus between complaining of violations of the statute and the negative actions taken against you have to be clear.

In other words, if you had complained instead of a fair housing act violation, much of what you described would likely not be actionable as "retaliation."

My point is that much of the harassment an HOA perpetrates is either lawful or difficult to stop.

LizD3 (California)
Posts: 200

Posted:

- If they are slandering you, you can take them to court (it is my understanding that slander is tricky to prove). Personally, I’d ignore what they say as moronic and beneath you.

- If they threaten to fine you – but do not – ignore this, too. Ditto them insulting you. (My Board has threatened to fine me, press charges, and called me names, but they have never fined me, never pressed charges, and the name calling is petty and sophomoric, so I ignore it all.)

- If they illegally post personal info, either take it down (not very satisfying, I know) and/or post theirs (Sorry, I thought the Board wanted personal info posted).

- Refusing to do maintenance – you can take them to court over this (Duty to Repair / Maintain: Civ. Code § 4775).

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By SheliaH on 08/20/2023 11:10 AM
Well, there are defamation and libel statutes, which are civil actions, you can sue (again). A Google search indicates there are 4 elements of libel and five for defamation, so if you think you have the evidence to prove them, go for it.

Of these, I think the most difficult you have to prove is damage to one's reputation, so maybe you should start there. Can you PROVE your relationship with your neighbors has been flushed down the sewer because of the board's actions? Are you getting nastygrams in your mailbox and emails? Threatening phone calls in the middle of the night? Can you show a change in behavior from before all this started to what's happened since?

I think of what happened to the election workers in Georgia and what lies and dsmned lies did to their lives (remember they received DEATH THREATS) vs.you being threatened with fines. I'm not suggesting your situation isn't annoying and shouldn't be addressed, but anyone reading comments on this website knows or should know it's never easy to speak truth to power.

You've shown you're not afraid of them and so now it's looking more like a passing match between you, the board (more likely the chairman and wife), and I wouldn't be surprised if everyone else is sick of all of you and don't care either way. Maybe it's time to stop and think a bit and choose your next battles carefully and get some allies.

By the way if there hasn't been road maintenance in four years, wouldn't that affect everybody in your community? Why would the board say "we hate Terri, so we'll show her be not repaying the roads". That doesn't make any kind of nonsense.

Paragraph 2: big time "yes" all except the midnight phone calls.

TerriS6 (California)
Posts: 3,284

Posted:

Re the last paragraph, the board only discovered two years ago that a reserve study and reserve account are required. They've been putting all the assessments into that except for routine operating expenses like insurance, weed abatement, inspector of elections, etc.

LizD3 (California)
Posts: 200

Posted:

Quote:

Posted By SheliaH on 08/20/2023 11:10 AM
Why would the board say "we hate Terri, so we'll show her be not repaying the roads". That doesn't make any kind of nonsense.

I believe it.

My board once had me get quotes for a simple job but when I was doing it, the licensed vendor found a critically dangerous problem that required repair or it would be catastrophic for the entire building. It took 4 additional licensed vendors, 2 government inspectors, 1 public utility inspector, and more months and emails than I can count before the board would do the repair.

Why? It wasn’t because they couldn't see the problem – I could point to it – it was because it was me who brought it to their attention.

I believe Terri’s board would say that. You’re right, it doesn't make any kind of nonsense. But that is what my petty, foolish board did.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Well if the shoe fits... Seriously you sued your HOA twice right? And now you wonder why they won't or can't fix a pothole? It must be all about you? Well you made the HOA spend whatever money they had dealing with YOUR issues. There is no more money left to deal with the REAL issues they should be working on. Unless they have a special assessment or raise dues. What response are they supposed to say when someone asks why they have to pay more? Well one of our members decided to take us to court and we had to use the money for that. Someone asks what member? Why can't they say your name? Was it a private result that isn't on file? Nope. A lawsuit is usually PUBLIC information. Plus the rest of your HOA has every right to know who the member is or are that was involved in whatever caused the problem.

Many HOA's will release names of members behind in dues. I don't agree with it but they do. That isn't harassment. A member owes dues and this is their name.

Why do you think it's okay to attack and nickpick your HOA and they can't do anything back? That is just selfish and childish. Grow up.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 08/21/2023 4:21 AM
Well if the shoe fits... Seriously you sued your HOA twice right? And now you wonder why they won't or can't fix a pothole? It must be all about you? Well you made the HOA spend whatever money they had dealing with YOUR issues. There is no more money left to deal with the REAL issues they should be working on. Unless they have a special assessment or raise dues. What response are they supposed to say when someone asks why they have to pay more? Well one of our members decided to take us to court and we had to use the money for that. Someone asks what member? Why can't they say your name? Was it a private result that isn't on file? Nope. A lawsuit is usually PUBLIC information. Plus the rest of your HOA has every right to know who the member is or are that was involved in whatever caused the problem.

Many HOA's will release names of members behind in dues. I don't agree with it but they do. That isn't harassment. A member owes dues and this is their name.

Why do you think it's okay to attack and nickpick your HOA and they can't do anything back? That is just selfish and childish. Grow up.

Now that we all know when you were on your board, you were so incompetent, you didn't have the funds to record a lien. You failed your membership. It's no wonder you would defend another incompetent board!

Your statements are factually incorrect.

Releasing personal information is illegal.

Arrogant people like you would never be able to admit that a board was wrong. I bet you had fun harassing your members.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You are a bully to your HOA and want to keep being one as if your their hero. I do not think your HOA is retaliating against you at all. I think they are in their rights to tell people who you are and what actions you have taken against them.

A double edged sword works two ways. If you do the stabbing then expect a wound or two against you for doing it.

Former HOA President

ElleN (Idaho)
Posts: 4,420

Posted:

-- One option for TerriS6 to consider is a suit for harassment. As a starting point, see https://www.davis-stirling.com/HOME/H/HOA-Harassment-Defined

-- Unless TerriS6 can show she suffered a financial loss as a direct result of things the Board said about her, then forget about suing for defamation/slander/libel.

-- If TerriS6 had medical bills due to the board's (attempted) intentional infliction of emotional distress (IIED), then she might be able to sue for the latter. Be aware that the bar for a successful IIED lawsuit is extremely high.

-- This board has clearly been highly incompetent in the way it runs the HOA. The directors are also incredibly immature with the way they are responding to someone who it appears to a large extent set the board straight with regard to its statutory obligations and obligations pursuant to the declaration. However this board's response to someone who pointed out their mistakes is not uncommon. The board's response is not right. It is wrong. Unfortunately legal remedies are not promising here, except maybe for a lawsuit for harassment.

-- One other problem is the possibility that TerriS6, while getting up to speed on the law here, may have herself asserted certain things that are in fact not correct. She herself may have made false statements about either the corporation or individual directors. Now there's a full-on war. It happens. Given how TerriS6 and her husband do not seem to have the support of other owners, changing the board make-up is unlikely. This narrows down considerably the options the two of them have.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 08/21/2023 6:39 AM
You are a bully to your HOA and want to keep being one as if your their hero. I do not think your HOA is retaliating against you at all. I think they are in their rights to tell people who you are and what actions you have taken against them.

A double edged sword works two ways. If you do the stabbing then expect a wound or two against you for doing it.

5 directors + HOA lawyer + association checkbook against 1 member. The 1 member is the bully? Very funny. AND the court disagreed with you.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 08/21/2023 6:55 AM
-- One option for TerriS6 to consider is a suit for harassment. As a starting point, see https://www.davis-stirling.com/HOME/H/HOA-Harassment-Defined

-- Unless TerriS6 can show she suffered a financial loss as a direct result of things the Board said about her, then forget about suing for defamation/slander/libel.

-- If TerriS6 had medical bills due to the board's (attempted) intentional infliction of emotional distress (IIED), then she might be able to sue for the latter. Be aware that the bar for a successful IIED lawsuit is extremely high.

-- This board has clearly been highly incompetent in the way it runs the HOA. The directors are also incredibly immature with the way they are responding to someone who it appears to a large extent set the board straight with regard to its statutory obligations and obligations pursuant to the declaration. However this board's response to someone who pointed out their mistakes is not uncommon. The board's response is not right. It is wrong. Unfortunately legal remedies are not promising here, except maybe for a lawsuit for harassment.

-- One other problem is the possibility that TerriS6, while getting up to speed on the law here, may have herself asserted certain things that are in fact not correct. She herself may have made false statements about either the corporation or individual directors. Now there's a full-on war. It happens. Given how TerriS6 and her husband do not seem to have the support of other owners, changing the board make-up is unlikely. This narrows down considerably the options the two of them have.

Defamation per se does not require proof of loss but as said, it's bigger than defamation.
When the court ruled increases unlawful, half the members asked for refunds.
Lots of support but I never ask for participation since people are averse to conflict.

ElleN (Idaho)
Posts: 4,420

Posted:

Has the board make-up changed at all since you took the HOA to small claims court?

Has the majority of the board changed at all?

If no, then if this were me, and for all practical purposes, support would be absent.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 08/21/2023 7:57 AM
Has the board make-up changed at all since you took the HOA to small claims court?

Has the majority of the board changed at all?

If no, then if this were me, and for all practical purposes, support would be absent.

This is an astute point, one I've thought of, and one that makes me wonder why I have done stupid stuff like donate the court awards back to the association and ask for a maximum fine of $1. per violation when the court can impose $500./each. I'm trying to correct the board without punishing the members but the members keep voting in the chairman who picks everyone else. I'm a slow learner I guess.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 08/21/2023 8:04 AM
makes me wonder why I have done stupid stuff like donate the court awards back to the association and ask for a maximum fine of $1. per violation when the court can impose $500./each.

Wow. I would not call this "stupid." I would call what you did (with the small claims court penalties on the HOAs) your best chance of demonstrating (1) what your actual goals are and (2) that you were trying to be more-than-fair with the small courts claims.

I am not sure I would have done what you did (with regard to the penalties). As you know well, going to small claims court is a lot of work.

I figure: The emotion behind "revenge" is powerful and so complex it is not even worth analyzing. Instead and regardless of how much in the right one might be, one should always expect revenge. Yes, this reality deters people from doing the right thing. But it is still reality. 1.5 cents.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 08/21/2023 8:16 AM

Thanks.
I did keep the 4th award because my friend said she would never speak to me again if I didn't.

TerriS6 (California)
Posts: 3,284

Posted:

Some cases have considered associations and members as landlord/tenants. It is illegal for a landlord to retaliate against a tenant for exercising his legal rights under state or local laws.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 08/21/2023 8:51 AM
Some cases have considered associations and members as landlord/tenants. It is illegal for a landlord to retaliate against a tenant for exercising his legal rights under state or local laws.

Good point but I am not hopeful. California's tenant anti-retaliation law appears here: https://codes.findlaw.com/ca/civil-code/civ-sect-1942-5/ . It refers to the tenant exercising his rights per "this chapter," meaning Chapter 2 - Hiring of Real Property, California Civil Code Division 3, Part 4, Title 5, Chapter 2 sections 1940-1954.06 . See https://law.justia.com/codes/california/2022/code-civ/division-3/part-4/title-5/

Per
https://law.justia.com/codes/california/2022/code-civ/division-3/part-4/title-5/chapter-2/section-1940/, the chapter applies to people who "hire" (rent) a "dwelling unit." I do not think this chapter applies to an owner of a lot and home in a subdivision.

TerriS6 (California)
Posts: 3,284

Posted:

No, I don't either and there is probably nothing yet that applies but...

State has laws that protect association and members
Association has powers authorized by the state, even greater than those granted to a landlord, e.g. foreclosing on a lien
Association has a duty to maintain common areas which includes assessment collection policies and how common areas are managed
Association is accountable for protecting the rights and investment of the members
Members have legal remedies to protect their rights

Even though HOAs have greater powers over members than landlords have over tenants, there is no provision to stop a board from retaliating against a member who relies on the law to protect his rights.

ElleN (Idaho)
Posts: 4,420

Posted:

I support an anti-retaliation HOA statute section. This is despite the high bar that would likely be required to enforce it. Said "high bar" being similar to other statutes' anti-retaliation sections and how the courts interpret this.

Of interest may be the wording that the Fair Housing Act and CFR interpreting this use:

(b) It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this part.

(c) Conduct made unlawful under this section includes, but is not limited to, the following:

(1) Coercing a person, either orally, in writing, or by other means, to deny or limit the benefits provided that person in connection with the sale or rental of a dwelling or in connection with a residential real estate-related transaction because of race, color, religion, sex, handicap, familial status, or national origin.

(2) Threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or national origin of such persons, or of visitors or associates of such persons.

(3) Threatening an employee or agent with dismissal or an adverse employment action, or taking such adverse employment action, for any effort to assist a person seeking access to the sale or rental of a dwelling or seeking access to any residential real estate-related transaction, because of the race, color, religion, sex, handicap, familial status, or national origin of that person or of any person associated with that person.

(4) Intimidating or threatening any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise, rights granted or protected by this part.

(5) Retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act.

(6) Retaliating against any person because that person reported a discriminatory housing practice to a housing provider or other authority.

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