Are HOA Homeowners Who Are Not on the Board Entitled to Board Information About Rules

[Alaruk]

My question involves real estate located in the State of: California

This pertains to living in an HOA (note: although I've used swimming pool hours as an example, this could apply to one of a number of things including parking rules)
The swimming pool hours are listed as closing at 10:00 PM, and the written rules state if you or your guest is caught in the pool area after 10:00 PM, a penalty will be assessed to you. However, the board agrees to not enforce this until after 11:00 PM, yet doesn't tell the homeowners this. Therefore, one will actually not receive a penalty unless they use the pool after 11:00 PM, not 10:00 PM, but they think the cut off time is 10:00 PM.

Assuming there is nothing in the bylaws or CC&Rs which explicitly addresses this:
- Is it acceptable for the board to have this information, while the remainder of homeowners are denied this information?
- Is it possible that they don't have to provide this information, but if requested they must provide it?
- And if they do provide this information and a homeowner requests it in writing, must the board and/or management company provide it in writing?
- If there is something in the bylaws and/or CC&Rs which covers this, what specifically would it have to say such that the board would be entitled to this information but the remainder of homeowners are to be denied this information?

Any other thoughts?

Thanks!

[adjusterjack]

Is it acceptable for the board to have this information, while the remainder of homeowners are denied this information?

Yes. It is acceptable if there is nothing in the CC&Rs that says it's not acceptable.

Is it possible that they don't have to provide this information, but if requested they must provide it?

Again, there is nothing in the CC&Rs addressing the issue one way or the other. So, no, they don't have to provide it if requested.

And if they do provide this information and a homeowner requests it in writing, must the board and/or management company provide it in writing?

No, they don't have to put it in writing.

If there is something in the bylaws and/or CC&Rs which covers this, what specifically would it have to say such that the board would be entitled to this information but the remainder of homeowners are to be denied this information?

Uh, something like this:

"the board would be entitled to this information but the remainder of homeowners are to be denied this information"

Any other thoughts?

Here's one. If your speed limit is 55 and the police decide not to ticket anybody going 56 to 65 and they don't tell anybody about it, are you going to complain about that, too?

[PayrolGuy]

Here's one. If your speed limit is 55 and the police decide not to ticket anybody going 56 to 65 and they don't tell anybody about it, are you going to complain about that, too?

Exactly the example I was going to give as I read the OP.

To the OP, unless there is something in the CC&Rs that all violations of such rules be enforced 100% of the time and exactly as written they have left such enforcement decisions to the board.

[Alaruk]

Exactly the example I was going to give as I read the OP.

To the OP, unless there is something in the CC&Rs that all violations of such rules be enforced 100% of the time and exactly as written they have left such enforcement decisions to the board.

Are you sure about this? If you are correct, then (using my pool example), the board members could use the pool up until 11 with the knowledge they won't get penalized while other homeowners would think they can only use it up until 10.

Now let's say I contact the association and ask if I can use the pool with my guests up until 11. They give me a verbal yes and I document that. At 10:15, the security company comes around asks me to leave, reports me to the association and I receive an assessment. So I appeal the assessment saying I was verbally told by the association manager I could use the pool after 10:00 and they said yes. If I were a judge and couldn't get the association manager to corroborate the verbal yes he/she gave the defendant, I would rule that the assessment stands. Thus it would not make sense that if such verbal permission is requested in writing it could be denied.

[Taxing Matters]

Assuming there is nothing in the bylaws or CC&Rs which explicitly addresses this:
- Is it acceptable for the board to have this information, while the remainder of homeowners are denied this information?

Whether it is "acceptable" depends on whom you ask. I imagine that people may have differing opinions.

- Is it possible that they don't have to provide this information, but if requested they must provide it?

No law requires the HOA to inform all homeowners in the Association of its actions; that is, nothing says it must send out written notices of it, put it on its web site, or whatever. However, California law does require that when a homeowner makes a request for inspection of Association records the Association must make them available for the homeowner to inspect at times specified in the statute. See Cal. Civ. Code § 5210. You may also copy the records, but the HOA may charge you a reasonable fee for its expenses in copying the records. Among the records that must be made available are records of board meetings and committee meetings, with the exception of meetings in executive session. See Civ. Code. § 5200 which excludes records of executive sessions of the board from the definition of Association records. Section 4910 provides that the Association may not take any actions outside of a board meeting.

Executive sessions of the board are allowed for the following discussions:

(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.

(b) The board shall adjourn to, or meet solely in, executive session to discuss member discipline, if requested by the member who is the subject of the discussion. That member shall be entitled to attend the executive session.

(c) The board shall adjourn to, or meet solely in, executive session to discuss a payment plan pursuant to Section 5665.

(d) The board shall adjourn to, or meet solely in, executive session to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705.

(e) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.

Civ. Code. § 4935.

Deciding on a general enforcement policy for violations of the rules would seem to fall under "executive session to discuss member discipline" though I've not checked California court decisions to see if they have interpreted it that way. If it does, then if the board did it correctly it would have gone into executive session to discuss it, in which case the details of the discussion would not be a record members could get. However, the regular board meeting minutes would have to at least mention that the issue was discussed. If they failed to go to executive session to discuss it then the discussion must be in the regular meeting minutes and that would be available to the members.

- And if they do provide this information and a homeowner requests it in writing, must the board and/or management company provide it in writing?

All the board must do is allow the member to inspect the records and to copy them, and the board can charge for the copies.

[llworking]

My question involves real estate located in the State of: California

This pertains to living in an HOA (note: although I've used swimming pool hours as an example, this could apply to one of a number of things including parking rules)
The swimming pool hours are listed as closing at 10:00 PM, and the written rules state if you or your guest is caught in the pool area after 10:00 PM, a penalty will be assessed to you. However, the board agrees to not enforce this until after 11:00 PM, yet doesn't tell the homeowners this. Therefore, one will actually not receive a penalty unless they use the pool after 11:00 PM, not 10:00 PM, but they think the cut off time is 10:00 PM.

Assuming there is nothing in the bylaws or CC&Rs which explicitly addresses this:
- Is it acceptable for the board to have this information, while the remainder of homeowners are denied this information?
- Is it possible that they don't have to provide this information, but if requested they must provide it?
- And if they do provide this information and a homeowner requests it in writing, must the board and/or management company provide it in writing?
- If there is something in the bylaws and/or CC&Rs which covers this, what specifically would it have to say such that the board would be entitled to this information but the remainder of homeowners are to be denied this information?

Any other thoughts?

Thanks!

There is actually a very practical reason why the board might choose not to inform the HOA members that they are only going to enforce the fine after 11:00PM. They actually WANT everyone to obey the rules and be out by 10:00PM, but the recognize that sometimes stuff happens and someone might lose track of time and end up being a little late getting out. So, they are trying to be considerate enough not to fine someone for being just a few minutes late.

If people knew that they could swim until 11:00PM without being fined then the problem would be that again, some people would lose track of time and still end up being a few minutes after 11:00PM Therefore, there is no reason why they would just make the problem the same by letting people know.

[pg1067]

- Is it acceptable for the board to have this information, while the remainder of homeowners are denied this information?

"Acceptable" to whom? The word "acceptable" implies a subjective evaluation that may be different from individual to individual. If you're asking whether some law in California requires that the board of an HOA tell all of the members that it won't strictly enforce a particular rule, the answer is that no such law exists.

- Is it possible that they don't have to provide this information, but if requested they must provide it?

Again, no law covers this sort of thing.

- And if they do provide this information and a homeowner requests it in writing, must the board and/or management company provide it in writing?

No.

- If there is something in the bylaws and/or CC&Rs which covers this, what specifically would it have to say such that the board would be entitled to this information but the remainder of homeowners are to be denied this information?

I don't see the point of creating a hypothetical by-law. If you're a member or board member of an HOA and you want to see the by-laws amended in some way, I suggest you confer with a local attorney.

Any other thoughts?

I have lots of them, including that HOAs suck.

To the OP, unless there is something in the CC&Rs that all violations of such rules be enforced 100% of the time and exactly as written they have left such enforcement decisions to the board.

Are you sure about this?

I can't speak for "PayrolGuy," whom I believe is not an attorney, and I'm not sure if he's in CA, but I can assure you that what "PayrolGuy" wrote is legally correct.

If you are correct, then (using my pool example), the board members could use the pool up until 11 with the knowledge they won't get penalized while other homeowners would think they can only use it up until 10.

It is certainly true (and well-known to any adult who isn't completely naive) that people in positions of power/authority sometimes abuse the power they have.

Now let's say I contact the association and ask if I can use the pool with my guests up until 11. They give me a verbal yes and I document that. At 10:15, the security company comes around asks me to leave, reports me to the association and I receive an assessment. So I appeal the assessment saying I was verbally told by the association manager I could use the pool after 10:00 and they said yes. If I were a judge and couldn't get the association manager to corroborate the verbal yes he/she gave the defendant, I would rule that the assessment stands. Thus it would not make sense that if such verbal permission is requested in writing it could be denied.

Sure it does. If you want written confirmation, ask for it. If you don't get it, then you can, at the very least, send an email that says, "Hey Bob, I'm writing to confirm our discussion today in which you said, 'blah, blah.' Please let me know if you don't believe this accurately reflects what we discussed. Thanks."

[Alaruk]

There is actually a very practical reason why the board might choose not to inform the HOA members that they are only going to enforce the fine after 11:00PM. They actually WANT everyone to obey the rules and be out by 10:00PM, but the recognize that sometimes stuff happens and someone might lose track of time and end up being a little late getting out. So, they are trying to be considerate enough not to fine someone for being just a few minutes late.

If people knew that they could swim until 11:00PM without being fined then the problem would be that again, some people would lose track of time and still end up being a few minutes after 11:00PM Therefore, there is no reason why they would just make the problem the same by letting people know.

Then what would be the problem with stating the hours are until 10PM with the threat of an assessment only if someone uses after 11PM or multiple instances between 10PM and 11PM? It doesn't seem right that the board should be entitled to additional information like this.

Sure it does. If you want written confirmation, ask for it. If you don't get it, then you can, at the very least, send an email that says, "Hey Bob, I'm writing to confirm our discussion today in which you said, 'blah, blah.' Please let me know if you don't believe this accurately reflects what we discussed. Thanks."

Seems like the best recourse if they won't provide something in writing.

[adjusterjack]

Then what would be the problem with stating the hours are until 10PM with the threat of an assessment only if someone uses after 11PM or multiple instances between 10PM and 11PM? It doesn't seem right that the board should be entitled to additional information like this.

You live in an HOA. It's inherent in the nature of HOAs that the board be corrupt.

Seems like the best recourse if they won't provide something in writing.

And/or have a witness to the conversation.

[L-1]

Any other thoughts?

Thanks!

Actually, I have quite a few thought I will share on the subject.

OK, so the cut off time to be out of the pool is 10 PM, but the board has unofficially exercised their discretionarry decision making authority not to take enforcement action against folks in most cases unless they are there past 11 PM. Why do you suppose that is? I’m going to suggest it is because of folks who see things in black and white, want to dissect each rule and bend and twist them to their advantage. Let’s take a look at the difficulties of enforcing a simple 10 PM pool curfew rule.

10 PM as defined by whose clock? The phone company’s time? The big clock in the town square? The National Institute of Standards and Time that broadcasts the time by radio from Fort Collins, Colorado? The wristwatch that you are wearing. Which will be the standard for the 10 PM pool curfew? I have multiple clocks in my home, few of which agree with each other as to what the current time is. One is eight minutes fast, the other is five hours slow and I stopped paying attention to it years ago. What if the time you as a pool goer go by is in conflict with the time the HOA uses? Who prevails?

Next, because there is likely to be a conflict between time keeping devices, how many minutes should someone be over before enforcement action is initiated? One minute? Two? Three? What if the overage is the result of a good faith mistake due to a conflict with their time keeping device? How do you differentiate between a good faith mistake versus someone who is intentionally violating the rule to take advantage of Board’s discretionary enforcement policy?

So, by not enforcing until the violator has been there for more than an hour past the cutoff, there is no doubt that a violation has occurred. It is clear that action against the HOA member is not petty or capricious, but has been taken for a clear cut violation of the rules.

Such a discretionary enforcement policy is generally not written or publicized because it is just that - discretionary. Were it a codified rule, then 11 PM would be the cut off for pool use instead of 10 PM, and we would be back to the same questions – 11 PM as defined by whose clock? How many minutes must one be there past 11 PM before enforcement action is taken, etc. ?

If 10 PM is the cutoff and they don't hammer you if you are a bit late getting out of the pool, consider that you've got a pretty good board. If you don't like it, vote in a new board that does things how you want them. We just did that where I'm at and everyone is now happy.