Constitutional condo conundrum
More must be done to better regulate the state’s more than 30,000 homeowner associations
By Jana J. Monji 06/28/2012
Attending a meeting shouldn’t cost you $20,000. But as of June, we’ve spent more than that just to attend our homeowners’ association board meetings.
The truth is, being shut out or harassed of this association isn’t that unusual. All you need is a rogue board full of bullies and weak-willed sycophants, and your condo home becomes pure hell.
It started last July. My husband, the treasurer, wasn’t allowed into a board meeting because a new board member didn’t like him. That’s like your city council or school board members deciding you dress funny and slamming the door in your face. A condo or common interest development is a nonprofit corporation, and all owners are members and have the right to speak and attend meetings. That’s the law, but that’s not what always happens.
At the federal level, we have the Bill of Rights, which, in the First Amendment, guarantees the right to free speech. We also have the 1966 Freedom of Information Act.
In California, the Brown Act guarantees transparency in government institutions and gives citizens the right to speak before governing bodies, such as public school boards and city councils. The Davis-Stirling Act is supposed to function in the same way for condo communities. Both acts are California sunshine laws, and where the sun doesn’t shine, cockroaches can come out and play.
By August, the board refused to tell us when the next meeting was. And then, they tried to intimidate us by ripping down 8.5 x 11 posters that simply asked: “When’s the next board meeting?” We were told about the board meeting AFTER the meeting was over. Someone taped that information to our doormat. Later that week, my husband was replaced as treasurer, and we were threatened with fines for putting those posters on the bulletin board.
As of today, we’ve been to small claims court three times. Each time, the board lost. The first time, in October of last year, the board was required to pay a fine, turn over some papers and then meet in mediation. The posters were a pivotal part of our winning argument. We then were threatened with more fines, and the board attempted to defraud us of money, hoping we’d pay off some of their projects.
We finally hired a lawyer, because simply having a court order wasn’t enough — not even when dealing with the condo’s insurance adjustor. We just finished our second of two mediation meetings in mid-June, because the board members refused to honor their agreement. One of their demands: no posters on the bulletin board. Apparently, that’s the only point they learned from small claims court.
During this now year-long fiasco, I’ve learned a lot about law, and one thing is it doesn’t work. You can go to small claims court to request certain things like documents to discern if a board is following state and city laws, and you can try to get an election voided. But to enforce other, more important civil codes for meeting attendance and to protect your free speech rights, you need a lawyer to guide you through a higher courtroom case.
Even in small claims court, the judge might not understand this specialized field of common interest development law and make a bad decision. Most people would not know how to challenge a judge’s decision and request to correct or vacate judgment, as I did.
And certainly some people are worse off than we are. Perusing the discussions at HOATalk.com and similar Web sites, like the National Fair Housing Advocate, you can read about slashed tires and misappropriation of money in California and nationwide. Recently, retired California firefighter Jim Bevill and his wife successfully sued Ke Nani Kai Condo in West Molokai for a $3.87-million jury award, but that case was filed in 2008 and only settled this spring. One resident just didn’t have the money to join the litigation. Sometimes homeowners must choose between fighting for civil rights and being poor. Now we’re trying to sell, even at a financial loss and in mediation we agreed to a partial abridgment of free speech. Our board has suffered only a $600 penalty, while our financial strain has amounted to tens of thousands of dollars in legal fees.
At the state level, there was enough concern about rogue HOA boards that in 2008, legislators introduced Assembly Bill 567, which would have established the Office of Common Interest Development Bureau as a pilot project within the Department of Consumer Affairs to provide education and dispute resolution as well as collect data about disputes. The bill was vetoed by then-Gov. Arnold Schwarzenegger, leaving condo owners at the mercy of the bullies on the HOA board.
With more than 30,000 homeowner associations in California, something needs to be done to regulate boards. Citizens who suffer under a condo board’s abuse of power need a legal solution that is more efficient and less costly than $20,000. We need legal “pest control,” because without stronger enforcement measures, the condo cockroaches will only multiply.
Jana J. Monji is a contributing writer to the Pasadena Weekly.