NINE MYTHS REGARDING MEMBER DISCIPLINE
One unpleasant but necessary aspect of association board service is imposing discipline in response to unneighborly behavior by members. Here are nine myths regarding HOA discipline.
Myth #1: HOAs can impose any fine amount that seems appropriate to punish the violating homeowner. Truth: Civil Code Section 5850(c) limits monetary penalties (aka “fines”) to those as stated in the HOA’s written list of penalties in effect at the time of the violation. No list of fines? Then no fine can be imposed.
Myth #2: A committee can impose discipline. Truth: Under Civil Code 5855 discipline is imposed by the board. Some HOAs have enforcement agents or disciplinary committees sending out notices of fines, but those may be subject to challenge as violating Section 5855.
Myth #3: A fine can be imposed without a hearing so long as there is a “right to appeal” the Truth: The disciplinary process under Civil Code 5855 is clear — before ANY discipline is considered or imposed, the homeowner must be given written notice of the hearing at least 10 calendar days before that meeting. Section 5855 Subpart (d) says: “A disciplinary action ... shall not be effective ... unless the board fulfills the requirements of this section.”
Myth #4: Homeowners have the right to an attorney or representative present at their discipline hearing. Truth: No, the law does not give this right. HOA hearings are not court proceedings but are meetings of neighbors to address unneighborly behavior. Nothing in the law requires hearings to be conducted like criminal proceedings, with counsel, Fifth Amendment protections and a jury of peers. I occasionally see governing documents allowing homeowners to bring counsel to hearings, but generally, these should be meetings between homeowners.
Myth #5: Homeowners have the right to be present, so if they don’t attend the hearing, it cannot proceed. Truth: The statute requires the homeowner to be given notice of the date, time and place of the hearing (and the governing document provision violated), but it does not say that the board cannot proceed without the homeowner present. Boards should use their fair and reasonable judgment in determining whether to reschedule hearings, but rescheduling is not legally required.
Myth #6: HOAs can suspend voting rights and board eligibility in response to violations. Truth: HOAs cannot suspend homeowner voting rights because of the prohibition of Civil Code 5105(g), and unresolved rule violations are not a board eligibility standard allowed by Sections 5103(d)(2) and 5105(b),(c)(d).
Myth #7: The HOA cannot control tenant violations. Truth: The HOA has no direct control over tenants as nonmembers, but it can hold landlords responsible for the actions of their tennotice. ants or guests.
Myth #8: The HOA should keep imposing fines indefinitely until the problem is resolved.
Truth: Fines are intended to deter, but when they don’t work, court action may be necessary. A cautionary tale is recited in the Ritter v. Churchill case from 2008, where the HOA fined the homeowner $200 per day until the balance reached $77,000 ... and the court ultimately found no violation, costing the HOA hundreds of thousands of dollars in attorney fees.
Myth #9: Boards must punish all violations. Truth: Boards may decide not to pursue minor violations if circumstances warrant and if owners are treated equally. Also, sometimes warnings are sufficient.