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July 14, 2006
My Board is Unresponsive - What Do I Do?
This is a followup to an earlier blog that pointed out a number of resources that are available for owners or board members that want to be educated in California homeowner association legal requirements. I am beginning a series on how to deal with difficult Boards (to help owners) and how to deal with difficult owners (to help Boards). This needs to be a continuing saga because there is no shortage of either in California (or across the nation for that matter). Although I am an attorney practicing only in California, much of what I lay out here is pertinent to any situation where a Board or owner is unresponsive or unwilling to follow the law or requirements set forth in the governing documents of a homeowners association.
For resources in addition to those set forth in the earlier blog, check out the resource page at the Guru website (http://www.californiacondoguru.com).
For guidance on actions, stay tuned and follow the blogs, starting here.
Here goes as to strategy- remember this reader question?
"I am a homeowner in a __ unit association. Our board is unresponsive to questions, requests, etc. I feel helpless in my own home. What recourse do I have or what escalation point is there for me. "
There are many reasons a board could be seen as unresponsive. Let's take the most obvious one first. The Board is simply ignorant of the answers. Silence is less risky than looking ignorant or saying something that is incorrect. Maybe the Board has not developed any skills or means of communicating with owners. Especially in a self-managed association, there may be a tendency for boards to "shut down" if all the directors are hearing from the ranks are complaints or questions they do not know how to answer.
There is the possibility that the demands that are being made are unreasonable or offensive, or continuing, or that they have been put on a the agenda for the next meeting and no one wants to address them until then. Perhaps the Board is waiting for an upcoming meeting and it only seems like the board members are unresponsive. Believe it or not, there are cases where owners are demanding and want answers right away, and directors feel there is safety in numbers, and it makes more sense to have the questions addressed by the entire board. Of course, there are boards that put off owner complaints and demands for months on end just because they don't want to deal with them. However, in my experience, the demands do not go away - they tend to "escalate" and how they escalate depends on how the owners tend to approach things.
Owners, there is a pragmatic approach that does not involve shouting, meeting disruptions, threats, or retaliation. The place to start is organization of thoughts, and preparing a reasonable presentation. It may be face-to-face - it may be pen and paper (or in these days, "word" and email or fax). No one waits for a letter anymore. And this is where you come in, armed with the education you received from doing your homework. You may even have recitations of law or passages or articles from the research you did to offer the Board - so you can "help them help you."
The best way to approach the Board with demands is either to attend the meetings, listen and learn and show interest, and speak directly to the Board at the legally required opportunity (in California) which most informed boards call the "homeowner forum time" California law requires boards to allow owners to address the board at meetings; however, the Board can set reasonable limitations on time, which can mean a specific time period before, during or after the meeting or the actual time allowed to speak. If you are overbearing, demanding or pushy in your approach, you may trigger the natural human response which is to withdraw, and that will diminish your message considerably, so avoid it.
Owners may also provide their questions, concerns or demands in writing, which I believe to be the method most likely to engender a response and deserved accountability, especially with a Board that does not appear to be responsive. A writing serves several valuable purposes:
(1) Provides More Thoughtful Approach. A writing tends to force a a person to think things through in terms of organization, structure and message, which often presents a more cohesive and understandable demand, question or concern.
(2) Assures Delivery of Correct Message. A writing gives the recipient of the messsage the opportunity to deliver it as stated by the writer to all parties that need to see it, which is much more likely to be accurate than the "telephone game" which leads to paraphrasing and reparaphrasing which often leads to an incorrect message, and which also often gets sprinkled with personal "flavor" as it is passed along.
(3 Avoids Idiocy in Delivery. A writing tends to (although not always the case) be presented in a less offensive manner than a personal affront or confrontation involving "demands", because it tends to temper the emotion somewhat. When you are trying to make a point, you need a process that will allow you to think clearly. Often when people start speaking from a level of frustration, they feed off of it and the message gets skewed. Who wants to look bad on paper? Spouting epithets or threats on paper or otherwise is not advisable under any circumstances, but on paper, they cannot be retracted. You can count that as a strike against yourself if your demands erupt into uncohesive rants or something more. The Board will give the message less credibility - the directors may not even finish reading it. And if the matter escalates to where someone else will become involved in judging who is the more reasonable party and what is the more reasonable position, you are sunk.
(4) Creation of a Paper Trail. A writing creates a "record" that is hard to ignore and that tends to invite a response, even if just to avoid appearing unresponsive.
(5) Credibility. If it comes down to needing credible evidence either to share with other owners whom you might want to enlist, an attorney with whom you might want to consult, or seeking objective review of a demand, a writing creates a "record" that speaks louder than "he said, she said" types of testimony.
Hearing officers even in small claims court, should matters "escalate" to this step, will often ask the party with the demands if they have been presented to the other side - in writing, - before coming to court. Some small claims judges will not hear a matter if that approach was not taken before filing. A party can say "I called them 10 times and demanded that ...." - which is less compelling (since there is no record of what was said other than testimony) than a well constructed written "demand" providing clearly what it is you want, what the authority is that entitles you to it, and how urgent it is that you have it including what losses you have incurred because you did not get it.
Then, If the Board is truly avoiding responding or ignoring the request, it may be time to take action. Look for suggestions in an upcoming blog.
Posted by Beth Grimm at July 14, 2006 10:05 PM