I continue to get questions relating to hearings, due process, notice, opportunity to confront witnesses, continuous fining, etc. and I will share some of these with you, and then will give my comments. Since this is such a pressing matter, I will post this information on both of my blogs, California HOA & Condo Law Blog and Condolawguru.blog. Here is a conglomeration of 3 emails I received:
“First of all, I enjoy reading your blogs on line and look forward to reading more in the future. I have read your article dated June 15, 2009 relating to the rights of homeowners to confront witnesses in disciplinary hearings. I am an owner in a condo development that has restrictions on [vehicles being parked in the driveway/garbage cans being left out too long/stored items in the garage]. There are some exceptions to the rules made; apparently some people are given more leeway than others. Sometimes the rule is enforced, and sometimes it is not. To complicate things, I have a renter and the renter denies violating any of the rules related to the [thing complained of].
The Notice of Hearing has summoned me to appear before the Board ON ____________ and to “state my position at the Hearing”. Since the notice I received does not provide any details of the alleged violation other than a cursory reference to the Rule allegedly violated, I don’t know how I can “state a case” or get a fair hearing. I do not even know what dates to ask my tenant about or tell him that he was cited. Here are my concerns:
The Notice does not state the date and time when the alleged violations occurred. The Notice does not provide details as to the make, model, color, or license number of vehicles involved in the alleged violations. The Notice does not state that the Board investigated the alleged violations and confirmed the validity of the allegations. Should the Board not provide me with some sort of “evidence” to prove beyond a reasonable doubt that the alleged violations did in fact occur? Isn’t the burden of proof upon the management company and the Board to provide evidence that violations did actually occur and were performed by people for whom I am responsible?
How can I or anyone receiving a Notice of this nature be expected to have a meaningful discussion with my tenant, or to answer the alleged charges of violation without having any information? I would appreciate receiving your comments.”
Here are my comments.
I believe that notices relating to violations should refer to specific violations, giving the date, the time and the violation, and in the matter of parking violations, vehicles should be identified.
Why? Because it is only reasonable to identify the problem so that the owner knows what to respond to at the hearing. I had personal experience with a situation 3 times in a condo where I had a tenant and violations were reported. All 3 times the HOA had received information on the WRONG UNIT. The violator was in the unit next door.
I believe that owners have the right to know how the information was reported – a written complaint, a log presented by the manager or person in charge of inspections, etc. It is my belief that no complaint should be addressed unless it is presented in writing to the board, or personally verified by management or a board appointed representative.
Why? Because in my vast experience in handling violations, I OFTEN FIND that people complain because they don’t like the neighbors, that they tend to exaggerate when that is the case, that they often change their stories when they are asked exactly what occurred and when, and that boards are often too lax in the way they document problems, and it often comes back to bite them.
I don’t believe that boards must send out continuous or re-occurring hearing notices for continuing or re-occuring violations IF THE BOARD HAS SET UP THE PROCESS SO THAT THE OWNER CLEARLY KNOWS WHAT TO EXPECT IF THE SAME VIOLATIONS CONTINUE TO OCCUR but I do believe that Boards must have a process whereby the owner is notified each time after the first time (the first time does require a hearing) that a fine is imposed, and why (meaning notice of the date, time, description of the violation, etc.). This is the only way that an owner has a reasonable chance of addressing the action that was taken in a meaningful way (if there is a meaningful excuse or extenuating circumstances that might apply).
I do not believe that owners should have the opportunity to CONFRONT witnesses. I am not against having everyone in the same room to talk about what is happening and in many cases, it helps to do so and many boards and owners are fine with this. However, many boards lack the skills to handle a situation where the confrontation becomes uncomfortable. And besides, a picture is worth a 1000 words so boards, why not require a dated picture of the violation whenever possible. With digital cameras, it’s quite easy to eliminate the need for an argument.
That’s my story, and I’m stickin’ to it, yes, I know someone is going to tell me next that “Davis Stirling” says that boards cannot impose recurring fines without a hearing for each violation and that “Davis Stirling” says owners should be able to confront witnesses. I think they are talking about “Davis Stirling” the website (which is a bunch of lawyers, just like me, with a different take on the law) because THE DAVIS STIRLING ACT – THE LAW – does not get that specific.