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COMMON Interest Living

Silent Treatment in Assessment Dispute

March 18, 2001|STEPHEN GLASSMAN and DONIE VANITZIAN | SPECIAL TO THE TIMES

This week marks the launch of an occasional column fielding questions about living in common interest developments-condominiums, trailer parks, planned communities, community apartment projects, stock cooperatives or any other type of housing where residents pay monthly dues to an association or foundation for maintenance, gardening or care of a common recreation area.

Question: I received a letter of delinquent assessment for $239, which amounts to more than my regular monthly fees. I called the board and the management company, asking how they came up with that amount and each told me they would call me back. No one returned my calls. When I sent in my next monthly assessment I requested an accounting. I also put the board and management company on notice that I disputed the amount they were charging and again, in writing, requested an accounting.

It has been nearly a year since my initial call and still there has been no response. The interest accumulates and the statements continue to tell me they are attempting to collect a debt from me. Now I'm being charged late fees upon late fees and I am being referred to in the minutes, distributed to all homeowners, as a "non-pay" against whom the board needs to take action. What do I do?

Answer: The most frequently used method of ostracizing a homeowner is to simply ignore their requests, letters and phone calls.

Unfortunately, the only avenue presently open under the amended Davis-Stirling Act is to file a lawsuit. Not very appealing.

As to the specifics of your letter regarding the alleged delinquency, it will be difficult for the board or management company to justify their denial of your request for an accounting. That presumes they respond.

It is up to the board to provide notice of and the basis for the delinquency. Does the notice sent to you contain wording like "This is an attempt to collect a debt'? If it does, the board or management company may be acting as a collection agency in this circumstance. If so, that means they may also be subject to all the laws that apply to collection agencies.

You are correct in asking the management company to "prove it," but give them a reasonable deadline by which they must respond. If they refuse, it may affect their ability to collect.

However, if, after having been told the reason for the delinquency, you have proof that any alleged delinquency is in error, mail a copy of that proof to the board or management company by certified mail. You gain nothing from delaying resolution.

Lastly, if the board or management company has identified you in the minutes as a "non-pay," and they are acting as a collection agency, they may be in violation of the federal laws governing fair debt collection practices and could be subjected to damages.

Board Need Not Show Contract to Members

Q: Our board signed a contract with a management company without presenting the contract for approval to the members. We have been told that the contract contains terms that allow the association to pay for the defense of the management company in the event it is sued.

We have asked to see the contract but our board has denied us that opportunity. What do we have to do to see the contract?

A: The board has the right to enter into the contract, whether it shows the contract to the members or not.

Although the Davis-Stirling Act requires the management company to provide a written statement to the board outlining its qualifications before the contract is signed, the board does not have to show that to you.

The act also says that the board is not required to conduct its contract negotiations in public.

Your only remedy to obtain the right to review documents, such as vendor contracts, after being denied review by the board, is to file a lawsuit. ou pay for your own attorney and your monthly fees pay for the board's attorneys.

*

Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. He is a Superior Court arbitrator and has testified before the California Legislature on issues affecting homeowner's rights.

Donie Vanitzian has authored articles on American Civil Liberties, is the recipient of the American Jurisprudence Award in Constitutional Law, and was the editor of her law school's Law Review. She is the author of Assembly Bill 2031, the first of its kind in attempting to preserve the rights of homeowners living in common interest developments. She has a B.A., J.D., and is an arbitrator.

Both live in common interest developments and have served on various association boards.

Please send questions to: Common Interest Living, c/o: P.O. Box 451278, L.A., CA 90045 or e-mail: CIDCommonSense@aol.com.

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