Thursday, December 1, 2011

And Justice for All

How and why to provide meaningful notice and an opportunity to be heard to members of a Community Association

      Steven S. Weil, Esq.

    Chapter 15 of Robert’s Rules of Order begins like this:

“Every organization has the right to enforce its rules and expect ethical and honorable conduct from its members. Most organizations have discipline problems from time to time. A discipline problem may be something as simple as a member misbehaving at a meeting or an officer overstepping the boundaries of his or her office. If the problem is not corrected when it arises, it can escalate into something more serious…”

    An association has several ways to discipline its members. The fairness and effectiveness of each depends on the nature and context of the misbehavior, the enforcement tools available under the governing documents and the manner in which they are used by the association’s board of directors.

 Actions Contrary to the Governing Documents

    An owner installs a large deck without obtaining or applying for Association approval; a resident’s pet is permitted off leash; so much furniture is stored in the garage that vehicles can’t fit: these are all common examples of CC&R violations. What are the remedies? How are they implemented? Most modern CC&Rs permit a board of directors to impose fines, suspend political privileges, limit use of common area amenities and perhaps levy a reimbursement assessments for costs incurred in remedying a CC&R violation.

 What is Due Process?

     Before implementing these disciplinary actions, the board must, under California Civil Code §1363, first provide the owner with an “opportunity to be heard” at a meeting noticed at least 10 days prior (and notice of adverse action taken within 15 days after). The applicable notice must be delivered personally or via first class mail and set forth “at a minimum” the date, time and place of the meeting, the nature of the violation and a statement that the member may attend and address the board at the meeting. The notice and process must - in the case of a nonprofit mutual benefit incorporated in California - be done “in good faith and in a fair and reasonable manner.”

     For “shorthand” we often refer to these principles as providing a member “procedural” due process (fair notice of the time and place of the hearing and the subjects upon which discipline might be based) and “substantive” due process (that the provisions allegedly violated and the penalty imposed bear a reasonable relationship to the use of land and the goal of ensuring compliance with the governing documents and conform to written guidelines like the “schedule of monetary penalties”). It is an interesting question – but far beyond the scope of this article – as to whether the due process required to be given by an association is the same as what must be afforded someone who is the subject of state action under the federal or state constitution. Surprisingly, there is no published case (one that can be cited to a Judge) that applies due process principles to imposition of fines or discipline.  However, one unpublished decision decided in 2005 sheds light on what is required.

The Aliusi Standard

    In Aliusi v Fort Washington Golf Club, a club member sued to set aside a decision of the board of directors permanently expelling him from the club. The notice of hearing accused him of using profane language to women members of the club and “prior offenses” that prompted a temporary suspension with the possibility of permanent expulsion. At the hearing, the member demanded to know the names of those who complained but the board refused to provide that information (the witnesses may have been intimidated); he denied being vulgar but did admit telling his wife that the ladies were “a bunch of old hags” and that they should “shove their requested apology up their @#%”.

    The board met privately and voted to expel him from the club. The decision was based not just on the recent incident of profanity but also on a history of incidents that included Aliusi’s failure to follow club parking, golf course rules and instructions from the club professional and that fact that his father was an alleged felon.

    Aliusi challenged his expulsion and the court agreed it was wrongful because he had been denied due process. Specifically, the court said the board should have given Aliusi an opportunity to cross-examine his accusers and notice of the “charges” against him.

 Applying Aliusi: revealing the names of the complainants?

    Must a board reveal the names of those who have registered complaints against a neighbor? In my opinion, the answer is not always “yes” but instead depends on these factors:

1.    Severity of the discipline: In Aliusi, the owner was permanently kicked out of a club he’d been a member of for over a decade. By contrast, the typical homeowners association cannot expel a member (or even deny them access to their property). Some penalties involve only “censure”, or a small fine, or a temporary ban on use of common area amenities (like a park) and in those cases, the level of “due process” shouldn’t be as high as what was required in Aliusi. The magnitude of the penalty – and thus of the level of required due process - may vary depending on the specific facts involved.

2.    Subjective violations: some violations arise out of “he said/she said” transitory disputes, especially those based on noise, basketball playing, improper driving and the like. In most cases, it will be impossible for the board to make any determination without assessing the credibility of the parties involved; in those cases, the parties should have a chance to “face their accusers” to help the board to determine the facts.

3.    Objective violations: by contrast, a board does not usually need to assess credibility when the violation is obvious and can be analyzed regardless of who reported it. Examples are the backyard deck that exceeds the height of the fence; the installation of a permanent basketball standard; the parking of a commercial vehicle and the like. In these cases, the identity of the person who first lodged the complaint with the board is not necessary for it to determine the existence of the violation. Thus, the name of the “accuser” is irrelevant to the target of the discipline.

 Documentary evidence
    The other problem in Aliusi was that directors considered written evidence (complaint letters, rules) that had not been discussed with or provided to the member being targeted with the punishment. Generally, the failure to provide a member with the documents and records upon which a penalty is based will cast doubt on the fairness of that penalty. These materials might include photos, diagrams, complaint emails and letters (perhaps “redacted” to protect the author’s name), bids (especially when the board plans to impose a reimbursement assessment), communications from government agencies, vendors or others. In rare cases, it might be appropriate or desirable to share communications or memos from counsel although obviously this should not be done without conferring first with counsel.

Basis for alleged violation and punishment: Finally, the concept of due process also
requires a board to identify for an owner the alleged provisions of the governing  documents claimed to be breached and the provisions giving the board the power to impose discipline.

Hearing notice

    The hearing notice must specify the nature of the violation and the date, time and place of the hearing, and that the member may attend and address the board. Additional information that should be provided will vary depending on the parties’ history, the nature of the violation, member complaints, precedent, the types of potential penalties and other considerations. Typically, the notice will state the nature of the violation and the governing document provisions violated. If costs are to be incurred to cure a violation (for example, to repair a fence damaged by a member’s car), bids to do the work should be included. If there are photos or other records that can assist the owner in their “defense”, these should be mentioned, provided or made available.

The Point of “Due Process”

    Based on all of this, we can say that, beside insuring a just administration of the CC&Rs, the reason for “due process” is to give one who is the target of a hearing a fair chance to defend him/herself. Giving the owner this opportunity helps reveal the real and relevant facts and thus also aids the board’s decision-making process. Further, an owner who feels they were given a “fair shake” is much more likely to agree with the board’s disciplinary decision and comply with the governing documents. And that, after all, is the whole point.

Editors note: Steven Weil is a Senior Partner at Berding|Weil


  1. Thank you for your articles.
    Does anyone know what my rights are if my homeowners association is trying to enforce a penalty on me (if I do not lay carpet)for the hard wood floors the owner of my unit 12 years ago placed. My unit was also owned by someone else before I bought it, and they also did not pay, and I have now owned it for three years, and this was not disclosed to me as a penalty the previous two owners had when I bought the unit. Also, there are other a few other units that have hardwood floors, and they have only sent the letter to me. Finally what was so disconcerting is that they sent me this letter after I asked their permission to replace my windows. I have always attempted to be in compliance, but this feels very discriminating and unfair. Thank you for your time in advance,

  2. Sorry, I don't give individual legal advice in response to comments on this blog. You can contact me at the email address shown above if you would like. In the meanwhile, if it were me, I would raise this issue with the person who sold you the unit.