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CONDO Q&A

A Board's Right to Levy Fines Is Subject to Due Process

October 15, 2000|JAN HICKENBOTTOM | SPECIAL TO THE TIMES

Question: The board of directors of our association is fining owners all of the time for the slightest infraction of the rules. The former board members did not enforce the rules, so this is a drastic change.

Is the board allowed to just put an extra charge on the assessment account of an owner without giving us the opportunity to explain?

We were cited for speeding but our car is similar to one that is owned by a teenager who lives in the neighborhood. We are being billed for something we didn't do.

We will have late charges added if we don't pay the bill soon. What can we do?

Answer: The board has the obligation to enforce the rules, especially if safety is an issue. It is unfortunate that the former board did not understand this responsibility. Now it is difficult for the new board to enforce rules without looking like the bad guys.

Owners who feel that rules are too harsh may attend a board meeting to let the board know their opinion. Usually, boards have the authority to change the rules and regulations, but they cannot change the other governing documents without a vote of the owners.

You have the right to be heard if you disagree with the citation. Many associations have specific means of "due process" in the declaration of covenants, conditions and restrictions or the bylaws. Due process allows an owner to address the board to protest a violation notice. It is very important for the association's board to follow the procedures for enforcement that appear in the governing documents.

The alleged rule violator is entitled to written notice of the rule that he or she is accused of violating. Then the association must give the owner the opportunity to have a hearing. The hearing can be in executive session with only the board members and the alleged violator in attendance. The board must comply with an owner's request to have the hearing in executive session.

After the hearing, the board can decide how to proceed. The board has the right to waive the fine or levy the fine based upon a majority decision. Notice of the board's decision should then be sent to the owner as soon as possible. If the owner fails to respond to the notice or fails to attend the hearing, the board can proceed with its decision without the member present.

In summary, the board has the obligation to enforce the rules, but it must do so in accordance with the governing documents of the association. If the association levies monetary penalties, all of the owners are entitled to be informed about the amount of those penalties in advance. The penalties must be reasonable and enforcement must be fair and consistent. The association's attorney should be consulted to ensure that the board is following the association's procedures correctly.

Follow Bylaws to Add More Board Members

Q: We have a small association and only three people are supposed to serve on the board, according to the bylaws. We would like to appoint two more people to the board because one of the board members is often out of town. The board president says that we have to operate according to the bylaws. How can we get around this provision in the bylaws?

A: It is not proper to "get around" your legal documents. The board president is correct. If you would like to appoint committee chairs to advise the board, that is acceptable; however, these extra people should not be voting members of the board.

If you want to change the bylaws to provide for more board members, refer to the bylaws to see how they can be amended. Usually a majority of the owners would have to vote to change the bylaws.

Jan Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions. Send questions to: Condo Q&A, Private Mailbox 263, 4790 Irvine Blvd., #105, Irvine, CA 92620-1998.

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