Q: We have a homeowner who insists the HOA must have the complainant in a harassment violation present at his hearing? Is this required? — M.H., Pacific Beach
Q: A crucial part of hearings that the public needs to know about is due process. Owners discovered that hearings were not being conducted so that all parties — the accused, the accuser, with any witnesses — could be at the hearing. An owner is no longer able to read what another owner or others wrote about them in a formal complaint; and no evidence is presented at a hearing. These wrongful practices violate our constitutional right to due process. — T.H., San Diego
A: There is a rampant misunderstanding about HOA disciplinary hearings.
The “due process” for HOA hearings does not come from the constitution because HOA boards are not judges and cannot impose incarceration or other serious consequences.
I know that some HOA law firms are advocating constitutional due process in HOA disciplinary hearings, but these hearings are not constitutional in nature.
The procedure, or “due process,” comes solely from Civil Code Section 5855, which is simple and mainly requires the owner receive at least 10 days written notice of the alleged violation and the date/time/place of the hearing. That statute provides the HOA’s “due process.”
There is no right to jury, a right to counsel, a protection against self-incrimination, and so on. There also is no right given to cross-examine witnesses or even to confront the accuser.
I routinely suggest that my clients do not allow the accuser and accused to be in the same room – it increases the probability of problems.
To make disciplinary hearings fairer to the owners, consider adopting written disciplinary hearing procedures that can be distributed to all members. When a hearing notice is sent, the hearing procedures can also be sent to the member. This helps members to be prepared at hearings, which also helps the board.
These hearings encourage neighbors to be good neighbors, and are presided over by neighbors, and so are not handled like court hearings.
Q: Currently, our HOA conducts both membership and board meetings in person or by virtual platform (Zoom). One owner generally attends all meetings and is allowed to discuss items on the agenda. That owner also refuses to pay late fees on their monthly HOA fees, so technically they are not “in good standing.” Can we refuse to allow the member to participate in the meetings? The person in question is not a board member. — K.W., Brawley
A: Only the board should be discussing the agenda. Owners can under Civil Code Section 4925 attend the open portion of board meetings and can address the board in open forum per Section 4925(b), but they do not have the right to deliberate with the board.
“Good standing” does not affect the right of members to observe board meetings or to vote at membership meetings as members. So, the issue is not the owner’s delinquency but is the fact that owners, generally, do not have the right to deliberate along with the board.
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com.
Related Articles
HOA Homefront: Are pets allowed under Fair Housing laws even if CR&Rs say no?
HOA Homefront: What happens at an HOA disciplinary hearing?
HOA Homefront: Why can’t members speak in meetings?
HOA Homefront: 14 things I wish all HOA attorneys knew
HOA Homefront: 13 things HOA service providers need to know