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July 12, 2006
My Association is Out of Control ... What do I do?
I receive a number of calls each week asking this question, in some form or another: "My Association Board is breaking the law, what can I do?" Sometimes the call is legit. Sometimes it's not.
When it "is" is when the Board is not following the Davis Stirling Act or the Association governing documents. When it "is not" is when the caller thinks the Board is "discriminating" against him or her or "harrassing" him or her and in fact the Board is attempting to follow the Davis Stirling Act or the Association governing documents by enforcing rules and regulations relating to parking, pets and the pool (3 infamous "p"s in the realm of enforcement questions) or collecting assessments.
Usually, one side or the other is somewhat to very familiar with the Davis Stirling Act and the other is completely ignorant of it (or "unenlightened" as I like to say).
When it is the owner, tenant, family member of one of those, or a sibling lawyer to one of those who is "unenlightened" sometimes the problem can be resolved by pointing to specific provisions in the Davis Stirling Act or the governing documents and warning them that failure to understand the regulations or Board's authority can end up in a costly battle.
When it is the Board that is "unenlightened" it can be more difficult. Board members are volunteers and not always motivated to add to their burdens the necessity of seeking a legal education. It is quite difficult to find answers and get smart about the Davis Stirling Act. It takes time, energy and a willingness to work at it. And even then, the answers do not come easy. And Board members often are also under the gun about finances, and hesitant to pay an attorney to get involved or help.
So what is a person who cares to do?
Whether you are looking at this from the Board's perspective or the Owner/Tenant etc, perspective, the first thing to do is seek out helpful information on the subject(s) that is "in your face". Here are some suggestions on that:
1. Go to www.ca.gov and navigate the state's website to get to government, and California Codes. The Davis Stirling Act is found at Civil Code Sections 1350-1378. Copy the code sections into a file, and then use the "find " function in the word program you have to seek out specifics on certain subjects like "flags", "pets", "signs", "collections" or "assessments" or the like.
I could say read all the statutes in the Davis Stirling Act but even if the average person can read the language of the statutes, they cannot understand them. Sometimes its easier to focus on what you need, for starters.
2. Pull out the governing documents and look to the Bylaws for provisions relating to elections, and the organizational structure of the Association, Board duties and responsibilities, etc. Look to the CC&Rs (also known as the Declaration) for the property rights and obligations, and the owners' rights and obligations. This is just the way it should be, not a promise that the documents will be structured as they should.
3. Go to the local law library (County law libraries let anyone in, law school libraries are more selective). Check out the CID (common interest development) texts by CEB (California Continuing Education of the Bar), by authors including Katherine Rosenberry and Curtis Sproul, Jeffrey Wagner, and John Hanna. There are various books by these authors advising HOAs, providing forms, etc.
4. Go to Amazon.com and plug in condos, homeowner associations, etc., and you will find interesting texts - I can recommend - "Questions and Answers" by Jan Hickenbottom.
5. Review my website at http://www.californiacondoguru.com and purchase books like "Finding the Key to Your Castle" and "The Davis Stirling Act in Plain English." Sign up for the Legal Digest, and read all of the free articles, FYIs, FAQs, and blurbs on various subjects.
6. Surf the web and find other sites - just be careful that the sites are related to California law or if they are not, understand that California legal requirements are different from other states. I highly recommend spending some time at www.communityassociations.net. It is an interesting site full of news from all states including specific links to California sites. In addition, the CAI website (http://www.cai-online.org) can be a good resource and the list of publications for different states is quite comprehensive.
Once you are armed with information, look for the next blog that will offer specific suggestions as to how to approach and "educate" others in a way that will provide them with "incentive" to listen. I will provide some guidance on what I often refer to as figuring out how to "push the right buttons", whether you need the attention of an owner who is out of control or resists following the law or regulations in the documents, or a board that refuses to follow the law or prefers burying its head in the sand.
Posted by Beth Grimm at July 12, 2006 10:10 PM