Membership rights with regard to the attendance and participation in Board meetings is an important component of the laws governing homeowners associations ("HOAs"). Civil Code Section 1363.05, known as the "Common Interest Development Open Meeting Act," states that "any member of the [HOA] may attend meetings of the board of directions..." This right is central to keeping HOA members apprised of the issues affecting their community and the ways in which the Board is discharging its duties under the HOA's governing documents. 

One issue that surfaces from time to time deals with the extent to which a HOA is required to allow a member to attend a Board meeting with her attorney, or to allow a member's attorney or agent to attend the Board meeting on the member's behalf. This issue may be complicated further if the owner of a property (the "member" under the HOA's governing documents) is an entity (i.e., a business organization or a family trust). 

Fortunately, the recent case of SB Liberty, LLC v. Isla Verde Association ("SB Liberty") will help resolve this issue and will provide valuable guidance for HOAs moving forward....

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"Who is Entitled to Attend Board Meetings on an Owner's Behalf?"

The California Civil Code requires HOAs to levy regular and special assessments as necessary to perform the HOA's obligations under its governing documents.  However, when a homeowner fails to pay those assessments, HOAs are often left with no alternative other than to pursue the owner in accordance with the collection methods sanctioned under the HOA's governing documents and the Civil Code. Because those methods could result in the foreclosure of the delinquent homeowner's property, it is paramount that HOAs strictly comply with the statutory procedures and requirements applicable to assessment collection (i.e., transmittal of notices, dispute resolution procedures, votes to initiate foreclosure, etc.).

The recent case of Diamond v. Casa Del Valle Homeowners Association illustrates how failing to comply with those procedures and requirements can result not only in the invalidation of a HOA's assessment lien, but also an award of attorney's fees and costs to the delinquent homeowner...

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"HOA Collection Procedures: Strict Compliance Required"

As is a common occurrence for HOA Boards, there is often difficulty in obtaining the HOA members' consent that is required for taking such actions as amending the HOA's governing documents or undertaking capital improvements. Failure to obtain the members' consent--whether it is a result of member apathy or disagreement with the Board's position--often results in wasted resources that were expended in conducting the election procedures required under California law. HOA Boards are therefore always looking for ways in which they can educate the members on the Board's position and the reasons why the Board believes that the membership should vote a particular way in the upcoming election.  

HOA Boards may therefore seek to utilize media outlets such as the HOA's website and newsletters, as well as posting notices in HOA common areas, in an effort to garnish member support for the Board's position. However, when such "advocacy" efforts are made as part of an election campaign, Civil Code Sections 1363.03(a)(1) and (a)(2) require the HOA to provide equal access to its media outlets and common areas to all members who may be advocating opposing points of view. Where the HOA fails to provide such equal access, Civil Code Section 1363.09(a) allows a court to void the election results and even impose civil penalties. 

This was the issue in the recent case of Wittenberg v. Beachwalk Homeowners Association, where the court held that a HOA's election results could be invalidated based upon the fact that the HOA Board had failed its duty to provide homeowners with the type of equal access contemplated by the Civil Code...

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"Equal Access to HOA Media Outlets During Election Campaigns"

Asked - "My HOA previously sent out an ADR request to a homeowner which was accepted shortly thereafter. The HOA has been attempting to schedule the ADR by providing the homeowner with numerous dates and times that worked for the HOA. However, the homeowner has rejected all offered dates and is demanding that the ADR take place at the end of the 90 day period set forth in the Civil Code. Is the HOA obligated to schedule the ADR as far out as possible per the homeowner's demands?"

Answered - No. Civil Code Section 1369.540(a) simply provides that upon acceptance of a request to participate in Alternative Dispute Resolution ("ADR"), "the parties shall complete the [ADR] within 90 days." Though it is not explicitly stated, both parties have an obligation to act reasonably and in good faith in their efforts to schedule the ADR within the statutory deadline. If the HOA offers the homeowner a range of available dates, the homeowner is not entitled to unreasonably decline to participate on any of those dates and, in doing so, delay the efficient resolution of the matter. This is especially true when the dispute involves a safety issue which needs immediate resolution...

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"Dealing with Homeowner Delay in ADR Scheduling"