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Owners should stand up to board's 'snitches' and dares

November 09, 2003|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: For more than 40 years, our deed-restricted homeowner association had very few problems. We never had a management company, and what problems we had were minor and readily solvable without complicated measures.

The association has hired and fired five management companies in the last five years. Each company brought its experts to instruct us on how our association would be run.

Because of their recommendations, it's now impossible for homeowners to make contact with our board because there are liaisons and roadblocks between owners and board members.

One of those obstacles is the creation of committees. On advice from management, the board has appointed committees for every inconsequential task imaginable.

The most scandalous addition to this committee madness is the creation of a Deed Restriction Enforcement Committee. This committee makes it its business to snitch on neighbors by reporting to the board any conceivable violation, even if it has to make one up.

In addition to the incredible waste of time, these committees are costing owners thousands of dollars spent needlessly in trying to comply with their absurd demands. There is absolutely no credible way to fight a committee's erroneous charges.

The board's justification for creating this particular committee is that it is acting in accordance with provisions in our covenants, conditions and restrictions. Board members also say they are acting in the best interest of the association. Worse, they tell us if we don't like it to "sue them because the association is insured."

To date, not one committee member has been fined or penalized for violating any rules. Unbeknownst to unsuspecting owner-violators, this enforcement committee reports its subjective findings to the board on a daily basis.

It's become impossible to live here. Is this committee legal, and can owners stop it?

Answer: Nothing devalues property faster than restrictions, fine patrols and liens. Whether legal or not, when the committee acts as "judge, jury and executioner," homeowners are placed in an untenable position that ultimately threatens the very ownership interest they acquired with title. More committees equate to more interference with cost containment and ownership stability.

Fundamental to the legal process is "fairness, notice and an opportunity to be heard." In an association and community-type living environment, fairness is usually in the hands of the board or its cohorts. If a hearing's outcome is "predetermined," as often is the case, then a thousand hearings will make no difference.

Assessing subjective fines without notice or a good faith hearing violates basic legal principles. Because the Davis-Stirling Act does not impose penalties on law-breaking boards, following rules is meaningless to a board intent on getting its way.

Insurance indemnification of board members has upset this delicate balance between a home and business. Boards often mouth the "good faith" mantra, or worse, "sue us, we're insured," as an excuse for their actions. Indemnification offers no incentive to boards to cooperate, compromise or do the right thing.

Every homeowner association board of directors has a fiduciary duty to every titleholder. Finding ways of inserting layer upon layer of interference between the board and homeowners is a breach of that duty. The fining and punishing of homeowners create an environment in which no one wants to live.

Association dues are meant to pay for property maintenance, not fund a patrol of revenue-producing snitches. Adding fines, penalties and interest to association monthly fees does not contribute to one's quality of life or maintenance of property.

But nothing is accomplished sitting on the sidelines. Stopping activities with which you disagree requires activism. Owners can stop or put an end to so-called deed restriction enforcement committees by banding together. Look to your association's governing documents for details on how to remove the board and elect a new one.

E-mail your queries to NoExit@mindspring.com.

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