Small Claims advisable in this situation?

Started by MattC5 • 73 replies • 1266 views

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MattC5 (California)
Posts: 13

Posted:

Newly elected Board passed sweeping rule changes - new Architectural Guidelines that, among other things, restrict hardscape to 25% of the lawn. Lots of protests, all comments ignored. This is a 20yr old 100 home SFH community in CA. $50 HOA fee - HOA responsible for the private road mainly. 50%+ owners (including the prior President) converted their 200sqft lawn to hardscape around 2014-16. Few took HOA approval, most didn't. CC&R mandates approval - but in those days no one complained.

Now we are getting violation notices - retroactively submit application for approval and add more plants.

Note the following -
1. Our CC&R does not provide any architectural guideline. Rules & Regulations had an line that said - landscape improvements are approved as follows: groundcover, lawn/sod, shrubs, plants, trees.
2. I am aware of Civil Code Section 4735. But I think Board can argue that new rules are not against water efficient landscape, they are just asking us to plant more water efficient plants.
3. I am aware of the 5 yr statute of limitation on enforcement. Recently I read this article - https://www.ericksenarbuthnot.com/article/grandfathered_in/ - since we were NOT in compliance earlier, court will most likely not uphold this excuse.

I love sparse lawns. Easier on the eye than poorly maintained/designed lawns converted to gardens. The new standards have been set by some residents in the architecture committee who seem to have something against hardscape. In a way, feels discriminatory.

But court doesn't care for my feelings! Hence, given the above info, would you recommend that I take the HOA to small claims? The situation doesn't merit a civic court case, imo. Afaik, even if I loose the small claims case, HOA cannot charge their lawyer fees, so it feels like I don't have much to lose by taking the HOA to small claims.

What do y'll thnk?

DeanJ
Posts: 1,786

Posted:

What is the monetary damage you want small claims courts to address? I suspect the HOA’s attorney would move for dismissal because the case is in the wring venue.

ElleN (Idaho)
Posts: 4,420

Posted:

MattC5, IMO your starting point here should be Internal Dispute Resolution (IDR). Look this up on the Davis-stirling.com site.

Quote:

Posted By MattC5 on 12/13/2023 10:01 PM
Newly elected Board passed sweeping rule changes - new Architectural Guidelines that, among other things, restrict hardscape to 25% of the lawn.

If you can finger a violation of Civ Code 4735 here, then yes, you can sue for injunctive relief, but not in small claims court.

Other valid claims regarding the landscaping may exist as well, but similarly, suing for injunctive relief would have to take place in superior court (not small claims court).

The Ca HOA statute only permits a few types of claims for injunctive relief to be brought in small claims court. Two examples of HOA-related claims over which small claims court has jurisdiction are disputes over elections and disputes over records requests.

If fines are involved, then the monetary requirement might possibly result in small claims court having jurisdiction, but I would not want to risk it.

SheliaH (Indiana)
Posts: 6,964

Posted:

You said most people didn't get prior approval for the changes they made - and that's part of the problem. You don't just ignore CCR requirements because you think they're stupid or "no one complained." You may be OK with sparse lawns, but you live in a HOA and are legally obligated to comply. CCRs aren't the 10 commandments - from time to time the should be reviewed to ensure they're keeping up with current law as well as changes in the community.

Your documents may also have language that states tge failure if tge board to enforce tge CCRs doesn't preclude a future board from doing so in the future. Pull out your copy and read what it says. While you're at it, see what they say about the board's authority to establish additional rules. This can be necessary to flesh out the CCRs, but can't supersede them.

In this case, yours say groundcover, lawns plants and trees are subject to approval. It appears the board is becoming more specific as to what the landscaping and hardscsping should be. It's a good idea to poll the community and get its opinion, but sometimes it's necessary for the board to be the adults in the room and make decisions that are necessary.

There are pros and cons to hardscaping and it may people have done whatever for too long and there's no rhyme or reason to the community's overall look. it's not about cookie cutter houses, but it helps to put some thought into what's being done. That may be why hardscaping is being limited. In light of climate change it does make sense to plant water efficient plants

Instead of suing, have you considered rallying your neighbors together and presenting the board with your concerns? You can poll the community yourselves to see what's most objectionable and focus on getting that modified or dropped altogether. You can also do some research on xeriscaping and see how it, plus hardscsping can work together. And you can always vite out this board in the next election if nothing works. This process takes longer, but it's cheaper than going to court

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

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You all know it is coming... Suing your HOA is suing yourself and your neighbors.

A thing about landscaping. We encourage the use of pine mulch. Our HOA had termites in the ground. Which feeds off wood chips in gardens. They are next to your homes .. The HOA was not responsible for pest control. If you used certain materials or locations it encouraged pests and entering your house. Pine mulch does not attract termites or other insects as readily.

You also have to be aware of tree growth rates. Had people try to plant plastic plants. Bright red rocks in a color scheme of muted colors not setting well.

There are reasons why denied. You can not get what you want all the time.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MattC5 on 12/13/2023 10:01 PM
Newly elected Board passed sweeping rule changes - new Architectural Guidelines that, among other things, restrict hardscape to 25% of the lawn. Lots of protests, all comments ignored. This is a 20yr old 100 home SFH community in CA. $50 HOA fee - HOA responsible for the private road mainly. 50%+ owners (including the prior President) converted their 200sqft lawn to hardscape around 2014-16. Few took HOA approval, most didn't. CC&R mandates approval - but in those days no one complained.

Now we are getting violation notices - retroactively submit application for approval and add more plants.

Note the following -
1. Our CC&R does not provide any architectural guideline. Rules & Regulations had an line that said - landscape improvements are approved as follows: groundcover, lawn/sod, shrubs, plants, trees.
2. I am aware of Civil Code Section 4735. But I think Board can argue that new rules are not against water efficient landscape, they are just asking us to plant more water efficient plants.
3. I am aware of the 5 yr statute of limitation on enforcement. Recently I read this article - https://www.ericksenarbuthnot.com/article/grandfathered_in/ - since we were NOT in compliance earlier, court will most likely not uphold this excuse.

I love sparse lawns. Easier on the eye than poorly maintained/designed lawns converted to gardens. The new standards have been set by some residents in the architecture committee who seem to have something against hardscape. In a way, feels discriminatory.

But court doesn't care for my feelings! Hence, given the above info, would you recommend that I take the HOA to small claims? The situation doesn't merit a civic court case, imo. Afaik, even if I loose the small claims case, HOA cannot charge their lawyer fees, so it feels like I don't have much to lose by taking the HOA to small claims.

What do y'll thnk?

You can enforce the CC&Rs in small claims court. You can ask for various kinds of orders. And you can ask for your costs to file the claim.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 12/14/2023 8:17 AM
You can enforce the CC&Rs in small claims court.

Only when an elections violation is alleged; or a records inspection violation is alleged; or, depending on the details, when the owner claims the HOA owes him/her money below a certain threshold is involved. See California Code, Code of Civil Procedure - CCP § 116.220 and the few sections of the California HOA act that expressly authorize small claims court jurisdiction.

Terri is going to go on and on about this, and without any citation for her claims. Listen to her; do not listen to her. If you take this landscaping issue to small claims court, I think you may risk a judge imposing the cost of the HOA defending itself (attorney prep fees for the board) on you.

TerriS6 (California)
Posts: 3,284

Posted:

You could get all your legal bases together then write a letter to the association asking for the same thing you will ask in small claims court. You could also try IDR. But sometimes a board won't listen, leaving no option for the member but to go to court.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Translates to you can force the HOA to use their budget to pay for your issue by costing everyone in your HOA. Plus lawsuits look great for your HOAs credit level. Especially when filling out the PUD form. It just may increase refinance rates and limit loan programs. FHA and other government backed loans will no longer lend money to potential buyers because number of lawsuits filed. Facts.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Matt, why some posters are bent on disparaging my remarks, I can only guess. I do have personal experience taking my association to small claims court for violating the CC&Rs. The judgments were in my favir every time and the board was fined several times. I'm happy to help anyone else because sometimes a board just won't communicate.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 12/14/2023 8:27 AM

If you take this landscaping issue to small claims court, I think you may risk a judge imposing the cost of the HOA defending itself (attorney prep fees for the board) on you.

Civil Code 5975.Enforcement of Governing Documents.
...
(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 12/14/2023 8:34 AM
The judgments were in my favir every time and the board was fined several times.

Undoubtedly it was either the fact that you sued over records requests, election disputes, or possible the fines authorized by statutes (that allowed you to say money was owed) that gave small claims court jurisdiction.

I do not see that a HOA's violation of the landscaping covenants or landscaping statute sections is fine-able.

But go ahead and file in small claims court over any landscaping violations. See what happens. I just do not like the risk of the judge ruling for the HOA on procedural grounds, and an owner having the HOA's attorney fees imposed on him/her.

MattC5 (California)
Posts: 13

Posted:

The HOA doesn't seem to be doing anything that's blatantly unlawful. CC&R can be amended, so can the rules.
I feel the proposed changes are UNREASONABLE.
- Why target hardscaping only? Nothing in the CC&R against hardscaping. (Except for the one line in the Rules doc (#1 in my post) which I don't know how to interpret.)
- Former president's lawn was completely bare bone - covered with mulch. This guy was a stickler for rules. Board must have approved such landscape 10 years ago.
- When I bought my house 10 years ago, there were ZERO plants on the lawn. There was grass, that I replaced with stones and added shrubbery. The board president praised my work!
- Some residents choose to pack the 200sqft lawn with plants, such gardens soon decay into a mess of dead plants.

Yet, the new rules specifically targets (1)hardscapes and (2)lawns covered with mulch. They are asking me to add more plants. The rules are not being written by a professional, rather by some residents in the architecture committee. The looks (and possibly value) of my house is being decided by some residents who
- possibly do not have any better idea than I have
- may be biased
This is my real complaint! Trying to figure out how to present the case in the small claims, if that's at all feasible.

TerriS6 (California)
Posts: 3,284

Posted:

From the California small claims court website: "Except for trial de novo and extremely rare instances, attorneys’ fees are not recoverable as court costs or damages."

I have recovered modest attorneys fees twice in small claims court because the statutes specifically allowed for it. The defendant was never awarded attorney fees.

Very strange that people are actually upset that someone is weighing the option of small claims court.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MattC5 on 12/14/2023 8:46 AM
The HOA doesn't seem to be doing anything that's blatantly unlawful. CC&R can be amended, so can the rules.
I feel the proposed changes are UNREASONABLE.
- Why target hardscaping only? Nothing in the CC&R against hardscaping. (Except for the one line in the Rules doc (#1 in my post) which I don't know how to interpret.)
- Former president's lawn was completely bare bone - covered with mulch. This guy was a stickler for rules. Board must have approved such landscape 10 years ago.
- When I bought my house 10 years ago, there were ZERO plants on the lawn. There was grass, that I replaced with stones and added shrubbery. The board president praised my work!
- Some residents choose to pack the 200sqft lawn with plants, such gardens soon decay into a mess of dead plants.

Yet, the new rules specifically targets (1)hardscapes and (2)lawns covered with mulch. They are asking me to add more plants. The rules are not being written by a professional, rather by some residents in the architecture committee. The looks (and possibly value) of my house is being decided by some residents who
- possibly do not have any better idea than I have
- may be biased
This is my real complaint! Trying to figure out how to present the case in the small claims, if that's at all feasible.

If your garden was essentially finished 5 years ago, CCP 336(b) should apply. I would be surprised if anything in your Declaration gives the board the power to make members add certain things to their gardens. Rules have to be consistent with the Declaration. In small claims court there is a very useful form SC-105 called Request For Court Order and Answer which can be filed before or after judgment is rendered but after your claim is filed. You can ask the court to order the association to cease enforcement proceedings against you because it violates CCP 336(b).

https://www.realestatelanduseandenvironmentallaw.com/five-year-statute-of-limitations-applies-to-unrecorded-rules-of-homeowners-association.html#:~:text=CCP%20section%20336(b)%20provides,a%20deed%2C%20declaration%2C%20or%20other

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 12/14/2023 8:47 AM
From the California small claims court website: "Except for trial de novo and extremely rare instances, attorneys’ fees are not recoverable as court costs or damages."

Better look up "trial de novo" and appeals by losing parties.

Quote:

Posted By TerriS6 on 12/14/2023 8:47 AM
I have recovered modest attorneys fees twice in small claims court because the statutes specifically allowed for it.

Q.E.D.

In addition, many HOAs now have the HOA attorney send a preservation letter to the complainant the instant a threat of a lawsuit occurs. A "preservation letter" is a lawful means of harassing an owner. The scoop:

A HOA has to let its insurer know anytime there is a threat of litigation. Why? Because for one thing, the insurance policy provides some-to-all of the indemnification for directors' and officers' actions. The insurance company needs to be able to protect both the HOA's and its interests as best it can.

If an owner really wants xyz from a HOA, then the owner is stuck escalating to the point of threatening a lawsuit. Savvy HOA attorneys know this. If the attorney (or board?) does not like an owner's request to do xyz, the attorney/board ignores the request until a lawsuit threat is made. This triggers action by either the HOA attorney or an attorney paid for by the HOA's insurer.

Unfortunately the attorneys are doing their job when they send an owner a "preservation letter" (a.k.a. "document retention letter"). Any electronic communications that an owner hopes to use as proof now must meet a much more rigorous standard. For example, on your computer or phone, if the owner deletes any exchange with the HOA or the HOA's agents, then ultimately in court you could find a judge ruling against you, because you did not abide by the preservation (document retention) instruction.

Necessary as it is (from the attorneys' viewpoint), IMO the document retention instruction is a powerful tool that the HOA can use to harass an owner and possibly to pummel the owner in court.

Owners who threaten suit should prepare for things to escalate further. E.g. the HOA may start billing the owner for what it pays the HOA attorney. This is likely not legal, but an owner would have to expend enormous time and possibly money to fight these billings.

Once the HOA attorney has informed an owner that he/she represents the HOA on such-and-such issue, communications on this issue are supposed to go through the attorney.

Owners face boards who may not care how much of owners' money they spend on the HOA attorney. Owners face HOA attorneys paid well to be either a stone wall or a pit bull. "Truth" and "fairness" are not the attorney's job. Going after the owner is the attorney's job. Worse, it's entirely lawful. The so-called adversarial system of law works only when both sides have the money to pay for their own attorneys.

A HOA v. Owner nuclear arms race, where both sides lawyer up and end up paying a fortune in attorney fees, happens too often.

For a real-life example of this,see https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/352593/view/topic/Default.aspx

TerriS6 (California)
Posts: 3,284

Posted:

Matt, and I would add that it doesn't matter that you weren't in compliance before because the issue is that no enforcement occurred for 5 years.

TerriS6 (California)
Posts: 3,284

Posted:

I posted a bad link. Here is the article.

Five Year Statute of Limitations Applies to Unrecorded Rules of Homeowners Association

By Sheppard Mullin on March 26, 2008
POSTED IN LAND USE AND ENTITLEMENTS
Pacific Hills Homeowners Association v. Prun (Mar. 20, 2008, G038244) __ Cal.App.4th __

By S. Keith Garner

The California Court of Appeal for the Fourth District recently held that the five-year statute of limitations in the Code of Civil Procedure (CCP) section 336 for challenges to restrictions on the use of real property applies to a homeowners association’s unrecorded rules or guidelines. The case involved a dispute over the location and height of a fence and gate across a homeowner’s driveway. The homeowners association’s CC&Rs, which were recorded, required homeowners to obtain written approval of plans for any improvements, such as fences, from the association’s architectural committee before starting construction. The association’s architectural committee also adopted guidelines that imposed setback and height requirements on fences, which were not recorded. In this case, the homeowner erected the fence and fate in November, 2000, without receiving the architectural committee’s approval and in violation of the setback and height restrictions in the unrecorded guidelines. The association immediately notified the homeowner of the violation, and, over the course of next few years, sporadically attempted to resolve the matter administratively with the homeowner. After its requests for mediation were rebuffed, the association filed suit against the homeowner more than four years but less than five years after the installation of the gate and fence. The homeowner argued in part that the action was barred by the four-year statute of limitations in CCP section 337. The superior court found that the action was timely under CCP section 336(b) and issued an injunction requiring the gate and fence to be lowered or moved outside the setback.

The homeowner renewed its statute of limitations argument on appeal, contending that CCP section 336(b) applies only to recorded documents, and not to the association’s unrecorded rules and guidelines, which contained the setback and height restrictions. CCP section 336(b) provides a five-year statute of limitations for "[a]n action for violation of a restriction, as defined in Section 784 of the Civil Code." Civil Code section 784, in turn, defines "restriction" as "a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction." The appellate court held that the catchall description "other form of restriction" in Civil Code section 784 was not limited to recorded instruments even though the specific enumerated documents are generally recorded: "Had that been the intent of the Legislature, it could have easily used the language any ‘other form of recorded restriction’" (emphasis added). The court then noted that the Legislature could easily amend the statutory language if the result in this case is contrary to its intent.

JackieB4 (California)
Posts: 398

Posted:

Quote:

Posted By ElleN on 12/14/2023 9:04 AM
Posted By TerriS6 on 12/14/2023 8:47 AM
From the California small claims court website: "Except for trial de novo and extremely rare instances, attorneys’ fees are not recoverable as court costs or damages."

Better look up "trial de novo" and appeals by losing parties.

Quote:
Posted By TerriS6 on 12/14/2023 8:47 AM
I have recovered modest attorneys fees twice in small claims court because the statutes specifically allowed for it.
Q.E.D.

In addition, many HOAs now have the HOA attorney send a preservation letter to the complainant the instant a threat of a lawsuit occurs. A "preservation letter" is a lawful means of harassing an owner. The scoop:

A HOA has to let its insurer know anytime there is a threat of litigation. Why? Because for one thing, the insurance policy provides some-to-all of the indemnification for directors' and officers' actions. The insurance company needs to be able to protect both the HOA's and its interests as best it can.

If an owner really wants xyz from a HOA, then the owner is stuck escalating to the point of threatening a lawsuit. Savvy HOA attorneys know this. If the attorney (or board?) does not like an owner's request to do xyz, the attorney/board ignores the request until a lawsuit threat is made. This triggers action by either the HOA attorney or an attorney paid for by the HOA's insurer.

Unfortunately the attorneys are doing their job when they send an owner a "preservation letter" (a.k.a. "document retention letter"). Any electronic communications that an owner hopes to use as proof now must meet a much more rigorous standard. For example, on your computer or phone, if the owner deletes any exchange with the HOA or the HOA's agents, then ultimately in court you could find a judge ruling against you, because you did not abide by the preservation (document retention) instruction.

Necessary as it is (from the attorneys' viewpoint), IMO the document retention instruction is a powerful tool that the HOA can use to harass an owner and possibly to pummel the owner in court.

Owners who threaten suit should prepare for things to escalate further. E.g. the HOA may start billing the owner for what it pays the HOA attorney. This is likely not legal, but an owner would have to expend enormous time and possibly money to fight these billings.

Once the HOA attorney has informed an owner that he/she represents the HOA on such-and-such issue, communications on this issue are supposed to go through the attorney.

Owners face boards who may not care how much of owners' money they spend on the HOA attorney. Owners face HOA attorneys paid well to be either a stone wall or a pit bull. "Truth" and "fairness" are not the attorney's job. Going after the owner is the attorney's job. Worse, it's entirely lawful. The so-called adversarial system of law works only when both sides have the money to pay for their own attorneys.

A HOA v. Owner nuclear arms race, where both sides lawyer up and end up paying a fortune in attorney fees, happens too often.

For a real-life example of this,see https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/352593/view/topic/Default.aspx

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MattC5 on 12/14/2023 8:46 AM
The HOA doesn't seem to be doing anything that's blatantly unlawful. CC&R can be amended, so can the rules. ... I feel the proposed changes are UNREASONABLE. ... Trying to figure out how to present the case in the small claims, if that's at all feasible.

To sort things out, at this time I think you should take the following steps:

First, see if the board has met the statutory requirements for a rule change. California is quite strict about this. See https://www.davis-stirling.com/HOME/A/Adopting-Amending-HOA-Rules. Is there a violation of any state statutes mentioned in the latter link?

Second, importantly, owners have a right to vote en masse and throw out board-created rules. If possible, seek an owners' vote to throw out the rules. See https://www.davis-stirling.com/HOME/P/Petition-Re-Rules. A majority of a quorum (with the latter expressly defined in Ca Civil Code) voting to reject a board-created rule might very well be attainable.

Third, as TerriS6 mentioned, identify whether the new, board-created rules are still clearly within the bounds of the covenants. It sounds like some of them might not be.

Fourth, get a feel for that vague principle colloquially referred to as "grandfathering." As an introduction, I would read these short web sites:

https://www.davis-stirling.com/HOME/G/Grandfathering-Violations

https://www.davis-stirling.com/HOME/G/Grandfather-Clause

ElleN (Idaho)
Posts: 4,420

Posted:

Per TerriS6's post, I say add a fifth step: Review the law on statute of limitations and see if and where it applies.

JackieB4 (California)
Posts: 398

Posted:

ElleN, Thanks for your patient, yet detailed, explanations. I admire your tenancity to rise above the smoke and ignore the obvious power stuggles a few are dealing with. (oops, never end a sentence with a preposition.) You have made being a Board Director more sane for many of us. Onward 2024!

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 12/14/2023 9:16 AM

Five Year Statute of Limitations Applies to Unrecorded Rules of Homeowners Association

By Sheppard Mullin on March 26, 2008
POSTED IN LAND USE AND ENTITLEMENTS
Pacific Hills Homeowners Association v. Prun (Mar. 20, 2008, G038244) __ Cal.App.4th __

By S. Keith Garner

The California Court of Appeal for the Fourth District recently held that the five-year statute of limitations in the Code of Civil Procedure (CCP) section 336 for challenges to restrictions on the use of real property applies to a homeowners association’s unrecorded rules or guidelines.

I am glad you agree that Court of Appeals decisions (not addressed by the Supreme Court) are Thee Law.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By JackieB4 on 12/14/2023 9:32 AM
Posted By ElleN on 12/14/2023 9:04 AM

Posted By TerriS6 on 12/14/2023 8:47 AM
From the California small claims court website: "Except for trial de novo and extremely rare instances, attorneys’ fees are not recoverable as court costs or damages."
Better look up "trial de novo" and appeals by losing parties.

Quote:
Posted By TerriS6 on 12/14/2023 8:47 AM
I have recovered modest attorneys fees twice in small claims court because the statutes specifically allowed for it.
Q.E.D.

In addition, many HOAs now have the HOA attorney send a preservation letter to the complainant the instant a threat of a lawsuit occurs. A "preservation letter" is a lawful means of harassing an owner. The scoop:

A HOA has to let its insurer know anytime there is a threat of litigation. Why? Because for one thing, the insurance policy provides some-to-all of the indemnification for directors' and officers' actions. The insurance company needs to be able to protect both the HOA's and its interests as best it can.

If an owner really wants xyz from a HOA, then the owner is stuck escalating to the point of threatening a lawsuit. Savvy HOA attorneys know this. If the attorney (or board?) does not like an owner's request to do xyz, the attorney/board ignores the request until a lawsuit threat is made. This triggers action by either the HOA attorney or an attorney paid for by the HOA's insurer.

Unfortunately the attorneys are doing their job when they send an owner a "preservation letter" (a.k.a. "document retention letter"). Any electronic communications that an owner hopes to use as proof now must meet a much more rigorous standard. For example, on your computer or phone, if the owner deletes any exchange with the HOA or the HOA's agents, then ultimately in court you could find a judge ruling against you, because you did not abide by the preservation (document retention) instruction.

Necessary as it is (from the attorneys' viewpoint), IMO the document retention instruction is a powerful tool that the HOA can use to harass an owner and possibly to pummel the owner in court.

Owners who threaten suit should prepare for things to escalate further. E.g. the HOA may start billing the owner for what it pays the HOA attorney. This is likely not legal, but an owner would have to expend enormous time and possibly money to fight these billings.

Once the HOA attorney has informed an owner that he/she represents the HOA on such-and-such issue, communications on this issue are supposed to go through the attorney.

Owners face boards who may not care how much of owners' money they spend on the HOA attorney. Owners face HOA attorneys paid well to be either a stone wall or a pit bull. "Truth" and "fairness" are not the attorney's job. Going after the owner is the attorney's job. Worse, it's entirely lawful. The so-called adversarial system of law works only when both sides have the money to pay for their own attorneys.

A HOA v. Owner nuclear arms race, where both sides lawyer up and end up paying a fortune in attorney fees, happens too often.

For a real-life example of this,see https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/352593/view/topic/Default.aspx

Interesting. We are talking about small claims court though.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JackieB4 on 12/14/2023 9:40 AM
ElleN, Thanks for your patient, yet detailed, explanations. I admire your tenancity to rise above the smoke and ignore the obvious power stuggles a few are dealing with. (oops, never end a sentence with a preposition.) You have made being a Board Director more sane for many of us. Onward 2024!

JackieB4, you are welcome. So far I do not like what is going on at* the OP's HOA. It sounds like a board/ARC making things up as they goes along, with no understanding of their obligations to the covenants (a.k.a. "contractual terms"), bylaws, and state statutes.

Here's to a great 2024. The month of May approaches.

* Another prepositional foul. [wink]

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 12/14/2023 9:45 AM
Interesting. We are talking about small claims court though.

I think the HOA attorney (or the HOA insurer's attorney) can still send a preservation letter, anticipating an appeal to Superior Court. Or a preservation letter is appropriate because maybe the board, defending itself in small claims court, wants to make sure evidence is preserved.

And yes, I know there are evidence/witness/testimony limitations in small claims court.

Your HOA obviously has not figured this out yet. Your Board seems to favor various unlawful ways to harass you and then gets itself in trouble with the judge.

TerriS6 (California)
Posts: 3,284

Posted:

Hopefully in a lot more trouble next week at their contempt of court hearing.

KerryL1 (California)
Posts: 14,550

Posted:

Matt wrote: "They are asking me to add more plants. The rules are not being written by a professional, rather by some residents in the architecture committee. The looks (and possibly value) of my house is being decided by some residents..."

Does the "they" above refer to the Board? Or the ARC chair? Or?

Did the Board in an open meeting approve the proposed new Architectural Guidelines and then sent them out to owners for the required 28-day comment period? And then discussed the proposed ARC Guidelines in a subsequent open board meeting, permitted owners to contribute during that meeting, as statutorily required, and the voted to approve them?

Does the ARC have some sort of Board-approved committee charter that authorizes it to tell you what to do with your front yard? In other words, does the ARC or anyone else have the authority to tell you what to do to your yard? You wrote your Rules & Regs say "landscape improvements are approved as follows: groundcover, lawn/sod, shrubs, plants, trees." approved by whom? Or does this mean that such is automatically approved? What is the title of the section that this "rule" is in? I don't quite understand it

Like Terri, I'm not a fan or IDR, but if you underwent that process and showed the 1 -2 directors with whom you'd be meeting that they did not follow legal procedures to get the ARC Guidelines (which are a governing document, btw) approved--if they indeed did not-- you wouldn't need to go to court. Keep in mind that your Board probably doesn't want you to go to court.

SheliaH (Indiana)
Posts: 6,964

Posted:

So what are you suing for? Have you suffered any financial loss because of these new rules? Did you look at ALL the rules and conclude they're whack or are you pissed about one or two? You think the look and property value of your home will go in the toilet because of these new rules - can you prove that?

If there are lots of people who feel as you do, what's wrong with attending the next board meeting and expressing your views? You can also vote this group out in the next election, but you'll need to have people ready and willing to step up and serve in their place - and one may need to be YOU. Are you ready to take a seat in the big chair and deal with everything that goes with it? Guess what - it won't always be about design standards for a front lawn.

You may think the new rules are unreasonable, and perhaps some of them are, but "reasonable" is subjective - just because you think what you have is fine doesn't mean someone else has turned their front yard into a hot mess. This is also subjective in fact, you said some of your neighbors filled their lawns with plants that died and now it looks awful. What do you suggest that the board do about that? How'd you like to live next door to or across the street from a yard full of dead plants?

Since everyone may not be familiar with hardscaping - here are some quotes from a landscaper's website on the subject:

Hardscaping is "hardscape is any of the non-living elements in your landscape design. As the name suggests, these are the harder design elements in your space like concrete, rocks, bricks, pavers, stone, and wood. Hardscaping also includes man-made structures like decks, pergolas, or that are used specifically in your landscaping. Landscape is all of the “soft,” or living, things in your design such as grass, plants, trees, and flowers.

This is from https://www.getcircled.com/difference-between-hardscape-landscape/ I hadn't heard of this before this conversation and must say this page bought up some issues I wonder if some of your neighbors thought about when they did whatever they did in their yard. And how do you know the architecture committee didn't consult a professional or two about this? Did you read any reports they made to the board (which should be available to homeowners)?

As I said earlier, CCRs and community rules can and do evolve, so it doesn't matter what you or the president did 10 years ago. Perhaps a mistake was made by someone back then and now it's finally being addressed. Design standards can change depending on people's tastes, what type of materials are available, how easy it is to maintain, etc., CCRs can change - to wit, 10 years ago, parking might not have been an issue in some communities, but today, people have three and four car households and they park all over the place, so new rules are necessary to ensure emergency vehicles will be able to get through the street, rather than being hampered by dozens of cars parked along a street that's too narrow.

There are other ways to address this, but first, you need to calm down before you go into court with a head of steam, only for the judge to tell you to take a chill pill - after he or she throws out your case. I get the feeling this didn't happen overnight - there had to have been some discussion on establishing rules over the last few months, so why not go back and review the board meeting minutes to get an idea of how the community got to this place? Do you know anyone on the architectural committee - maybe you can talk to them without cursing them out about your concerns.

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

KerryL1 (California)
Posts: 14,550

Posted:

To a couple of Shelia's points: She reminds me that in CA, committees with decision-making authority must keep meeting minutes and these are "Association Records" that any owner may review. So.... does this ARC have decision-making authority?

Next, how does this ARC or Board enforce this new ARC Guideline? Any PROPOSED schedule of fines must also be sent out for owners 28-days comments, etc., before the Board may approve it. Then of course, it must be published for Owners--our is in our Rules & Regs. Handbook. Too, WHAT are the penalties for non-compliance with the new ARC Guide? Will the Board fine you? Will they send back-hoes to dig up your front yard?

Also, with Shelia: Have you reviewed the open board meeting minutes where the Board first proposed and then approved the new Guidelines?

And, again with Shelia, it appears that you don't have complete information about these new ARC Guidelines. "hill" is the right word and be complete armed before you even do IDR, if you do, and certainly before you waster everyone's time going to small claims court. Shelia always is a good source because, like me, she has many years of actual board service. We both know there MAY be multiple ways and many things to explore to solve problems before, as a last resort, an owner heads to court.

KerryL1 (California)
Posts: 14,550

Posted:

Sorry, "Chill."

MattC5 (California)
Posts: 13

Posted:

Hi Kerry,
Let's see if this answers your questions. HOA/board likely met all reqmts of CC 4360.

- We have an architecture committee, traffic committee, etc. But the constituents of those committees are invisible to us.
- Our CC&R doesn't specify architectural standards. There's a line in the CC&R that owners are expected to follow the Rules doc.
- The line I quoted reg landscape improvements appear under "Established Guidelines->Landscape" in the "Rules & Regulations" doc. That doc also says at the beginning that it is stricter than the CC&R. That's pretty much the only thing the governing docs say about landscaping.

Here's how things unfolded:
- Few months ago we got letters from the HOA saying Architectural Guidelines have changed, here's the new policy. Violation letters followed. We responded to the letters asking for clarification. Nothing happened for a few months.
- We were not aware of any open meeting where these proposals were discussed. Then,
- Last month we got another letter from HOA saying a 28 day comment period on the policy changes before the next open board meeting was in effect. Neighbors commented against the proposal. Then in the open Board meeting, the proposal was summarily approved by the board. A few neighbors attended. They were given like a minute or so to speak. Board of directors basically just ignored the comments. They had made up their mind.
- As soon as that meeting ended, HOA sent out a fresh batch of violation notices. That very day.
- We do not know of any other meeting where architectural standards were discussed with the owners.

Legally speaking, the board/HOA seems to have dotted the i's and crossed the t's. Looks like the recently elected board of directors (and their friends in the ARC) declared war against hardscaping and decided to change the rule without considering the opinion of the owners. But they met the CC 4360 rqmts.

other q's -
- I've been reviewing meeting minutes. They are extremely sparse. Only one has a line that Board will review Architectural Guidelines. That's all.
- WHAT are the penalties for non-compliance with the new ARC Guide - no idea

MattC5 (California)
Posts: 13

Posted:

Hi Sheilia,

Excellent points. I can assure you I am not being hot headed about this.

Kindly review my response to Kerri, that may answer some of your questions.

I actually do not know if the ARC obtained professional opinion. Planning to ask HOA about that. You see, owners were not involved in any discussion, other than the comment period, and the comments were not responded to and summarily ignored.

"You think the look and property value of your home will go in the toilet because of these new rules - can you prove that?" - The Rule change notice said our front yards are contributing to reduction of property value. Can HOA prove it? Did they take any professional opinion? I asked them this question in the comments. No response. Our community is in a top/safe school district - that's what upholds our high home values. Prospective buyers are not worried about a 200 sqft yard.

Finally, it's not like I am going to court tomorrow. I want to engage in a discussion with the HOA/board. Possibly ADR would be the first step. I want to know if I can use the threat of small claims action as a bargaining chip. If they fine me for not planting more trees, can I THEN sue them in the small claims to recover the fine amount? As you see from my response to Kerry, HOA seems to have followed all legal processes. But to me, the new Architectural Guidelines seems to be based on subjective judgement, not objective assessment and metrics.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Do you have a local water authority that regulates the watering of plants and lawns? Perhaps start with them and get them to show up at
a meeting to give the board some advice.

MattC5 (California)
Posts: 13

Posted:

Good advice.
It's hard to make sense of ARC's motivation. On one hand they are asking me to add plants. A neighbor did an amazing job with his hardscape, added a lot of water efficient plants. His violation notice asks him to cut down his plants!!

TerriS6 (California)
Posts: 3,284

Posted:

Civil Code section 4735(e) says if your landscape was created in response to a declaration of emergency, you can't be made to change it later. In 2014 Governor Brown declared a drought state of emergency covering the 2012-2017 drought. It was lifted in 2017.

https://www.ca.gov/archive/gov39/2014/01/17/news18368/index.html

Again, if your Declaration does not give the board the power to specify landscaping, they have no power to do it.

TerriS6 (California)
Posts: 3,284

Posted:

Another thing you could do is wait until they fine you, then pay the fine "under protest" according to Civil Code section 5658, then take them to small claims court and prove all the reasons why they had no authority to fine you.

TerriS6 (California)
Posts: 3,284

Posted:

Lots of wailing about small claims attorneys fees. Here is the limit of attorneys fees if appealed.

CODE OF CIVIL PROCEDURE SECTION 116.780. ATTORNEY’S FEES: SMALL CLAIMS APPEAL.
(a) The judgment of the superior court after a hearing on appeal is final and not appealable.

(b) Article 6 (commencing with Section 116.610) on judgments of the small claims court applies to judgments of the superior court after a hearing on appeal, except as provided in subdivisions (c) and (d).

(c) For good cause and where necessary to achieve substantial justice between the parties, the superior court may award a party to an appeal reimbursement of (1) attorney’s fees actually and reasonably incurred in connection with the appeal, not exceeding one hundred fifty dollars ($150), and (2) actual loss of earnings and expenses of transportation and lodging actually and reasonably incurred in connection with the appeal, not exceeding one hundred fifty dollars ($150).

SheliaH (Indiana)
Posts: 6,964

Posted:

Quote:

Posted By MattC5 on 12/14/2023 7:46 PM

Hi Sheilia,

Excellent points. I can assure you I am not being hot headed about this.

Kindly review my response to Kerri, that may answer some of your questions.

I actually do not know if the ARC obtained professional opinion. Planning to ask HOA about that. You see, owners were not involved in any discussion, other than the comment period, and the comments were not responded to and summarily ignored.

"You think the look and property value of your home will go in the toilet because of these new rules - can you prove that?" - The Rule change notice said our front yards are contributing to reduction of property value. Can HOA prove it? Did they take any professional opinion? I asked them this question in the comments. No response. Our community is in a top/safe school district - that's what upholds our high home values. Prospective buyers are not worried about a 200 sqft yard.

Finally, it's not like I am going to court tomorrow. I want to engage in a discussion with the HOA/board. Possibly ADR would be the first step. I want to know if I can use the threat of small claims action as a bargaining chip. If they fine me for not planting more trees, can I THEN sue them in the small claims to recover the fine amount? As you see from my response to Kerry, HOA seems to have followed all legal processes. But to me, the new Architectural Guidelines seems to be based on subjective judgement, not objective assessment and metrics.

"Seems to have followed subjective judgement" isn't illegal. All of us have different ways of reviewing information before deciding what to do, whether it's buying a house, selecting a college or when to retire. Some people go with their gut, which I think most do, to some extent.

Using "objective assessment and metrics" makes sense, but where do you find them and what makes you think this set is better than that one or the bunch over there? Who developed those metrics, when and how were they used and how do you even know for certain using them was a good idea?

See how convoluted this can get?

Now a question for you - maybe a few. You said people are upset over this - is there a reason why you can't or don't seem to want to get a group of your neighbors together and talk to the board about the new rules? How many are we talking about- for all we know, this is a small group of people (you included) and everyone else is happy?

Have these new rules placed undue hardship on homeowners and if so, can you be specific, as in "I've had gravel on what was my lawns since 2000, so to remove half of it to bring in plants would cost X because I'd have to remove the gravel and put down soil so the plants can grow?"

By the way it's OK to ask for details on how the committee came up with its recommendations- in fact, that's where you should start. There was a comment period- how many people took the time to submit their comments? In fact, did YOU submit any? How long was the comment period- I would have allowed two months and then published a few, explaining why the committee went in another direction. That doesn't mean you'd agree, but you'd have some insight on how the thinking went.

Finally, you and your neighbors voted for the board to make decisions in the community's best interests, and as I said earlier, that nay mean making decisions people don't like. If you and everyone else had gone through the approval process from the beginning (and previous boards did their jobs in enforcing it) you might not be in this position. There could have been conversations all along about design standards, but no one did anything and now they're trying to bring some order into the process.

An advisory committee isn't the board, which isn't obligated to accept its recommendations either, they exist to take a deep dive into issues the board doesn't have the time for because they have to address stuff like the budget and rule enforcement.

Say, was there a call for volunteers to serve on this committee - if so why didn't you step up and been part of the process?

The board enacted the rules according to the documents, so making threats to sue us probably a waste of time (I'll let someone else bring up the business judgement rule- Google it if you want to know what that is). As for the board, even this can be undone, but you may need to vote in another group to do it. How much are you eillingbto do to make that happen- and what will you do if THAT board comes up with something that really affects the community in a bad way?

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:

Matt said his CC&Rs do not reference architectural guidelines so it doesn't seem there is a basis for the landscaping rules. Also, I believe the business judgment rule applies to ordinary maintenance decisions regarding common areas, not the separate interests.

TerriS6 (California)
Posts: 3,284

Posted:

To enforce CC&Rs, board has to have followed its own procedures. https://www.lubinphamcaplin.com/hoa-selective-enforcement/

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 12/15/2023 3:23 AM

CODE OF CIVIL PROCEDURE SECTION 116.780. ATTORNEY’S FEES: SMALL CLAIMS APPEAL.
(a) The judgment of the superior court after a hearing on appeal is final and not appealable.

(b) Article 6 (commencing with Section 116.610) on judgments of the small claims court applies to judgments of the superior court after a hearing on appeal, except as provided in subdivisions (c) and (d).

(c) For good cause and where necessary to achieve substantial justice between the parties, the superior court may award a party to an appeal reimbursement of (1) attorney’s fees actually and reasonably incurred in connection with the appeal, not exceeding one hundred fifty dollars ($150), and (2) actual loss of earnings and expenses of transportation and lodging actually and reasonably incurred in connection with the appeal, not exceeding one hundred fifty dollars ($150).

Because there is a "may" above (and not a "shall"), at this writing I think Civ Code 5975 (which has a "shall" for attorney fees) controls.

I do not know for sure. Just saying.

TerriS6 (California)
Posts: 3,284

Posted:

The topic is small claims.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

and again small claims usually does more damage to all your neighbors and potential buyers than what it is worth. It shows up on the PUD form which raises refinance rates. It makes less loans available or at a higher rate for potential buyers. It makes people pay higher dues or have a special assessment. The irony is that most issues are resolved never going to a lawyer. It's all written in the documents. A better way is education than forcing something down a throat or out their wallets.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 12/15/2023 9:24 AM
and again small claims usually does more damage to all your neighbors and potential buyers than what it is worth. It shows up on the PUD form which raises refinance rates. It makes less loans available or at a higher rate for potential buyers. It makes people pay higher dues or have a special assessment. The irony is that most issues are resolved never going to a lawyer. It's all written in the documents. A better way is education than forcing something down a throat or out their wallets.

First, I disagree with your conclusions but supposing they were true, then board members should think carefully about how they manage the association. They should not put the association at risk by ignoring the laws they're required to follow.

Small claims court can be a painless way to solve problems, unless the board pays a lot of attorneys fees to fight having to follow the law. Contrary to poster claims above that one should avoid small claims court because they might have to pay the other party's exorbitant attorneys fees, it's just not true. Some statutes allow the recovery of plaintiff's reasonable attorneys fees. On appeal, as quoted above a maximum of $150. in attorneys fees can be awarded. When a member is dealing with an unreasonable board such as Matt's, court may be the best option if other communication fails.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Too much TV watching... Small claims is for making one whole. Punitive damages rarely part of ruling. 50/50 chance who pays legal costs. Plus you still cost the a HOA legal expenses that every member pays.

I filled out several PUD forms. It asks if any lawsuits against HOA. It adds to the risk of a HOA for mortgage companies. They tend to not loan money or higher rate the riskier your HoA is. That includes number of rentals. Following rules is not involved nor your emotions.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 12/15/2023 9:59 AM
Too much TV watching... Small claims is for making one whole. Punitive damages rarely part of ruling. 50/50 chance who pays legal costs. Plus you still cost the a HOA legal expenses that every member pays.

I filled out several PUD forms. It asks if any lawsuits against HOA. It adds to the risk of a HOA for mortgage companies. They tend to not loan money or higher rate the riskier your HoA is. That includes number of rentals. Following rules is not involved nor your emotions.

Who said anything about punitive damages? Not a 50/50 chance in small claims court. Only in certain instances can a plaintiff ask for atty fees. The whole purpose is to be cheap and quick. The HOA shouldn't have any atty fees as lawyers not allowed. And why would a responsible board allow something to escalate to a courtroom? You want to pay a lawyer to fight it when all you have to do is send a copy of the minutes? If a board is that irresponsible and the members keep voting them in, they are getting what they voted for. If our board had been following rules and not emotions, as you say, there would have been no need for court.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Due to a HOA being a corporation it has to be represented in court by a lawyer an assigned representative. Which costs money.

Do you only look at your side of things? A responsible HOA would consult for legal advice even if just small claims. Where does money come from? Every single member of the HOA.

Former HOA President

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MelissaP1 on 12/15/2023 11:13 AM
Due to a HOA being a corporation it has to be represented in court by a lawyer an assigned representative. Which costs money.

Do you only look at your side of things? A responsible HOA would consult for legal advice even if just small claims. Where does money come from? Every single member of the HOA.

No, it does not. A corporation can be represented by a director or a property manager.
A board should not waste money on a lawyer to fight having to follow laws that are easy to understand.

MattC5 (California)
Posts: 13

Posted:

It seems, upon reading Civil Code section 4735, that HOA can argue that they are not asking us to rollback the hardscape, but to cover it up with water efficient plants!

The CC&R does not provide guidance on landscaping, but there's a line that says guidance can be set via the Rules doc. The Rules doc's Established Guidelines section that has that line "landscape improvements are approved as follows: groundcover, lawn/sod, shrubs, plants, trees", which I am trying to interpret! And the new Architectural Guidelines approved by the Board last month limits hardscape to <25%.

I'll read through your other responses this evening. Appreciate, Terri

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