Q: If the HOA does not send a letter to a landlord within the 15 days required by Civil Code 5855, can they just ignore it and hold another meeting or as many as they wish, removing the possibility that an owner uses the 5855 as defense? — PM Walnut Creek.
A: As your question implies, associations must notify a member in writing no later than 15 days after a disciplinary (or common area damage reimbursement) hearing of any action taken. Section 5855 of the Civil Code has several requirements that must be met, or under 5855(d), such an action is “void”. “Void” means the HOA cannot enforce the discipline or refund request.
If the HOA gets their process wrong, they can restart the process (hoping to do it right this time). There is no “double jeopardy” ban in the HOA world prohibiting a second “prosecution,” unlike government criminal enforcement, so the disciplinary process can be restarted.
Some attorneys, even HOA attorneys, argue that various constitutional rights apply to those “accused” of HOA violations, but this is clearly untrue – or juries would decide those violations, not counsel.
Remember that these hearings are a group of neighbors trying to stop inappropriate behavior. No one is incarcerated here!
Q: We have a resident who likes to provoke and fight with members of the community. Now she has the membership list and is launching hate speech and targeting certain residents. She’s also racist and that’s horrible. What can be done? Our lawyer says nothing. — EE, Lagoon Niguel.
A: I am very sorry to learn of your neighbor’s hateful activity. If this hatred is directed against residents because of their membership in one of the many protected classes in California (race, religion, ethnicity, gender, sexual orientation, and many others), state regulations on fair housing and HUD regulations prohibit such activity as discriminatory. .
Section 12120 of the state regulations declares such discrimination illegal.
Section 12010(c) requires the HOA to take such steps as it can to prevent such discrimination or it will be liable for such discrimination.
Incidentally, pursuant to Regulation Section 12005
The HOA is only responsible for doing what it can do under its documents, but it must at least try – so, and contrary to your attorney’s statement, it cannot simply do nothing.
Fair housing authorities expect the HOA to investigate the alleged discrimination and determine if unlawful harassment has occurred. Then the HOA should try to do what they can to stop the behavior. This can be a letter from the HOA director, board of directors, or attorney.
If the behavior is egregious enough to constitute a nuisance under the HOA’s CC&R, HOA’s legal counsel may analyze whether it is a potential cause of action.
Residents who experience this behavior have their own rights against the harasser, including filing a complaint with the DFEH and even filing their own discrimination complaint. Hopefully the HOA can prevent this kind of action by showing that such behavior will not be tolerated in your HOA community.
Kelly G. Richardson, Esq. is a member of the College of Community Association Lawyers and a partner at Richardson Ober DeNichilo LLP, a California law firm known for its advice to community associations. Submit your questions to [email protected]