Rules are one big reason people either love or hate the idea of governed communities. Some feel that they establish expectations and set standards for everyone who belongs to the development. Others find them to be too oppressive, and cringe at the thought of having to pay a fine for breaking a rule.
But in many cases, the enforcement process is less “unjust” than many realize. Similar to when a driver gets a speeding ticket, association members often have the opportunity to share their side of the story and prove their innocence to the board.
A disciplinary hearing is a formal meeting between the board and an owner accused of a violation. The goal of the hearing is to provide the owner with a chance to explain their side of the story before the board makes a final decision about taking disciplinary action.
While some violations warrant a fine or other disciplinary response, sometimes events are not so black and white. Perhaps there was a legitimate reason why someone couldn’t comply with a policy. They might have been very ill or busy attending to a family emergency.
A hearing gives owners a fair chance to provide the board with these kinds of details and possibly have the issue dropped.
Do all condos/HOAs offer disciplinary hearings?
Some states, including California , require associations to hold disciplinary hearings by law, but this is not always the case. Other times, the requirement may be found in the governing documents. But if laws and governing documents are completely silent on this matter, experts would encourage communities to make them mandatory.
Not only does it make the violation process more egalitarian – but it can help to maintain civil relationships between boards and owners. If someone is accused of doing something that they truly did not do, and have no opportunity to defend themselves, they will feel resentment and anger towards the board. They may be less likely to engage in the community, and more likely to do something to “get back at the board.”
The hearing process
Since California law mandates residential communities to host disciplinary hearings, there is a clear process for boards to follow. More generally, the process looks something like this:
Notice is given to the owner
The owner must receive a written notice informing them of the disciplinary hearing. The length of notice will vary from one association to another. In California, the law requires that written notice be sent to the owner at least 10 days before the hearing takes place. However, if the disciplinary action involves a suspension of privileges, the length of notice goes up to at least 15 days prior to the meeting.
The notice must have:
The date, time, and location of the disciplinary hearing
A description of the alleged violation that the owner has committed
A statement explaining that the owner has a right to attend the disciplinary hearing and talk to the board at said hearing
The notice can be more detailed, but it shouldn’t be so long that it becomes challenging to identify key information. For example, you may want to include the fine that the owner has been issued. Similarly, many owners appreciate it if the notices outline what they should expect during the hearing. Include details about time limits, what, if any, documents they will need to bring, if they can bring witnesses, etc.
When it comes to legal representation, unless the right is delineated in the CC&Rs, members do not have an intrinsic right to be represented by legal counsel at their hearing.
Hosting the hearing
Most associations will host disciplinary hearings during private or executive sessions. This means that other owners are not permitted to attend. By doing this, the association protects the owner’s privacy, and prevents others from gossiping about their neighbor. Members can demand a closed session, but these types of hearings should automatically be held that way.
Ensure to set a reasonable time limit to prevent hearings from taking longer than they should. 15 – 20 minutes should be enough time for an owner to state their case.
Board members should be as professional as possible and avoid talking or interrupting while an owner is presenting their side of the issue. Don’t use up their time arguing or discussing the issue.
Making a decision
After the hearing, the board must make a decision on whether to impose discipline based on the findings. Board members must remember to act in good faith, and make decisions that are consistent and fair. No decision should be made based on arbitrary interpretations or biased judgments.
Do not deliberate in front of the owner. Excuse the member, and once they have left, the board can make a final decision.
It is possible to complete some of this work online if the community has a violations tool . For example, board members can log votes on the platform and send notices to the owner electronically. The recipient has the option to respond to the decision, and even pay fines all from the same place.
Notice of decision
If the board decides to move forward with disciplinary action, it must provide written notice after the hearing. The timeframe within which the notice must be delivered will depend on state laws or governing documents. In California, the board must provide written notice within 15 days.
When boards draft a decision letter, it should be written in such a way that a person who is unfamiliar with the case could determine what happened and what decision was made. This is helpful just in case the issue goes to court. Make sure to include:
-The date of the hearing
-The specific rule or policy that was broken
-A statement confirming the owner’s presence at or absence from the hearing
If the owner was not present, the notice should mention if they submitted a defense of their violation in writing
-A synopsis or outline of actions taken by the board and the owner leading up to the hearing
-Evidence to support and disprove the violation
-The final ruling made by the board
-Any disciplinary actions levied by the board
Appeals
Depending on the circumstances, owners who have been disciplined may have a right to appeal the decision. Alternative dispute resolution (ADR) may be required.
Do other members have a right to know disciplinary outcomes?
Members do not have a right to know the results of a hearing, even if they were the ones who reported the issue to the board or manager. Since disciplinary hearings are generally held in executive sessions, minutes and other documents related to the disciplinary action are not subject to review by members.
However, boards may report generic results in open meeting minutes if they choose to do so. For example, they could report that 3 disciplinary hearings were held to determine disciplinary actions regarding a dog not on a leash that resulted in a warning, and two nuisance instances that resulted in fines of $75.
The exception
The exception to this rule is that if the person being disciplined represents a reasonable threat to the community, the board may have a duty to warn other owners. Boards should consult with their attorney on these types of situations.
Can property managers make decisions regarding violations?
Neither management companies nor their representatives have the power or authority to make decisions, or take action without the board’s consent.
If a fine is levied against an owner, the fine would have had to be approved and implemented by the board, not the manager.
Conclusion
Associations should always give owners the opportunity to tell their side of the story before a fine or other disciplinary action is levied. This makes the rule enforcement process more just, and can help to maintain better relations between board members and owners.
The post Disciplinary hearings: Why condos/HOAs should conduct them appeared first on Condo Control .
Written by Condo Control Central Blog | Shared from Condo Control Central Blog
