Ultimate Guide to HOA Disputes for Homeowners

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HOA Disputes in Los Angeles, Orange, San Diego, Riverside, Palm Springs, San Bernardino, & Silicon Valley

Living in HOA community can provide a serene, suburban setting for many homeowners looking for peace of mind and security. However, disputes between homeowners and HOAs can happen at any time. An HOA attorney with experience in real estate law can help you better understand the types of HOA disputes that can arise and what to do about them.

1. Failure to Repair and/or Maintain

HOAs have the duty and obligation to maintain and repair certain aspects of your community. The HOA may have an obligation to maintain and repair the roof, paint, termite and pest control, landscaping, and the upkeep of community amenities (clubhouses, pools, gyms, etc.), among many other duties. If your HOA is failing its duties to repair to maintain or repair, a homeowner has the right to demand proper maintenance and repairs.

2. CC&R or Governing Document Violations

HOAs and homeowners are contractually bound to comply with the HOA’s governing documents. However, the Board of Directors or property management company may be improperly interpreting or enforcing these governing documents. For example, HOAs may be violating their governing documents by withholding architectural application approval, failing to hold elections properly, restricting pets, solar panel installations, or Accessory Dwelling Units/granny flats. Under California law, a violation of the governing documents is considered a breach of contract and both parties have the right to remedy or cure the breach.

3. Harassment

An HOA’s Board or property management company may unintentionally or intentionally harass homeowners. Imposition of excessive, unreasonable fines, being nuisances, trespassing and issuing fines without proper notice and hearing can all be construed as harassment or discrimination.

4. Common Area Disputes

Living in an HOA community usually means there are “Common Areas” that are shared in common equally with the other homeowners who are members of the community. Disputes arise over what constitutes Common Area or Exclusive Use Common Area, and who has the right to use it, exclude others from use, or who is obligated to maintain it. For example, private balconies that are attached to a condo may seem like a homeowner’s property (and thus his or her responsibility to repair), but are actually “Exclusive Use Common Area” that the HOA must repair and maintain. Oftentimes, the designations of property are unclear and must be found in the “Condo Plan” or Map of the Development that is initially created by the developer of the community development. Review and analysis of the documents and recorded maps and community plans can help determine which areas are separate property and common property, and thus who is responsible for it.

5. Discrimination or Selective Enforcement of Rules/Governing Documents

Selective enforcement means that an HOA may issue a fine to a certain homeowner without imposing the same to others who are conducting the same ‘violation’. Discrimination may also include violations of federal laws – for example, certain HOA actions that fail to comply with the federal Americans with Disabilities Act (“ADA”) could be considered discriminatory.

6. Negligence

The HOA owes a duty of care to its members. Negligence occurs when the HOA fails to act and breaches its required duty of care, which can lead to damage to your property. For example, an HOA could be found negligent if they were aware of a maintenance issue and failed to mitigate before it caused damage to a homeowners property, and such damage was foreseeable.

7. Davis-Stirling Act Violations

HOAs in California are governed by the section of the Civil Code called the Davis-Stirling Act. HOAs are legally required to abide by the provisions in the Davis-Stirling Act. There are many instances where an HOA may be violating the law – including suspending a member’s voting rights, failing to properly conduct elections for Board members, or failing to give proper notice of its meetings.

8. Breach of Fiduciary Duties

The HOA and its Board of Directors owes fiduciary duties to homeowners. Breaches of fiduciary duties include, but are not limited to, misappropriation of HOA funds, using the HOA for profit.

How do I initiate a dispute against my HOA?

Typically, if a homeowner hires an attorney to help in their dispute against an HOA, the attorney will initiate contact with a demand letter to the HOA. The demand letter will either demand the HOA to perform its obligations, or cease and desist from continuing to violate the law and/or the HOA’s governing documents. An attorneys’ letter may give the HOA the necessary push to comply with the homeowners demands, however there are other alternatives that would put more pressure on the HOA into action. The Davis-Stirling Act, which governs HOAs in California, provides the following choices below to facilitate dispute resolution between parties involved in an HOA dispute and to help prevent the HOA from foreclosing on the property.

Informal Dispute Resolution (“IDR”).

Informal Dispute Resolution ( “IDR”) otherwise known as a “Meet and Confer” is defined as a fair, reasonable, expeditious procedure for resolving disputes  that an HOA must provide to its members. If the HOA does not have an established dispute resolution procedure in its governing documents, Civil Code Section 5915(b) provides guidelines for a default Meet and Confer procedure, that either the HOA or homeowner can initiate:

(1) The party may request the other party to meet and confer in an effort to resolve the dispute. The request shall be in writing.

(2) A member of an association may refuse a request to meet and confer. The association shall not refuse a request to meet and confer.

(3) The board shall designate a director to meet and confer.

(4) The parties shall meet promptly at a mutually convenient time and place, explain their positions to each other, and confer in good faith in an effort to resolve the dispute. The parties may be assisted by an attorney or another person at their own cost when conferring.

(5) A resolution of the dispute agreed to by the parties shall be memorialized in writing and signed by the parties, including the board designee on behalf of the association.

The benefit to resolving a dispute through IDR is that it is cost effective, timely and can be done independently by the homeowner without the need for legal representation. Civil Code Section 5915(d) requires that “A member shall not be charged a fee to participate in the process.” Therefore, the process should be free for a homeowner.

Furthermore, if the parties can come to an agreement at the conclusion of IDR, it will be judicially enforceable. Civil Code Section 5915(b) provides that a written agreement reached will bind the parties and is judicially enforceable if it is (i) signed by both parties; (ii) the agreement does not conflict with law or the governing documents; and (iii) the agreement is either consistent with the authority granted by the board, or the agreement is approved by the board.

However, an IDR is only effective if the HOA is willing to cooperate and is agreeable to reach a resolution. If the parties cannot compromise, a more stringent strategy may be necessary.

Alternative Dispute Resolution (“ADR”).

A method of conflict resolution is Alternative Dispute Resolution (“ADR”). There are two main ways to conduct ADR in California:

  1. Arbitration. Arbitration is a private process where disputing parties agree to allow a third-party to make a decision about their dispute. The arbitration process is similar to a trial, where parties make opening statements, present evidence and arguments to the arbitrator, who will consider both sides and make a decision. The benefit of arbitration compared to traditional trials is that arbitration is less formal and can be completed more quickly.
  2. Mediation. Unlike arbitration, mediation does not have a third-party making a final decision. Instead, a third-party mediator will oversee the process and help guide the parties to a mutually beneficial resolution. The parties in the dispute are the ones who come to a decision, not the mediator.

Civil Action – File a Lawsuit

Finally, the most extreme option for pursuing a dispute against your HOA is to sue them. However, there are certain requirements that must be met before taking your problems to court. Civil Code Section 5930(a) states that both parties in a dispute (the HOA and its members) cannot file an enforcement action in superior court, unless the parties have first submitted their dispute to ADR.  That means that even if you want to sue your HOA in court, you must first try to resolve the dispute through one of the two ADR methods mentioned above. If the HOA rejects your offer for ADR, or the parties undergo ADR and but cannot reach an agreement, you may then proceed to file a lawsuit against your HOA or your neighbor in superior court. The process of prosecuting or defending a lawsuit through litigation is costly and time intensive, especially if you are in debt and have a mortgage. Pursuing a lawsuit comes with a higher risk as there is a chance a homeowner will spend a large amount of time and money in litigation with the chance of losing the case.

 If an HOA is Sued and Loses, Who Pays the Court Costs and Attorneys’ Fees?

If the homeowner sues an HOA and the homeowner wins, the homeowner can recover attorneys’ fees and court costs from the HOA. There are two potential methods to recover attorneys’ fees in real estate litigation against an HOA:

  1. Under California Civil Code Section 5975(c), attorneys’ fees are available to a prevailing party in an action to enforce governing documents. Although Civil Code Section 5975(c) does not specifically define “prevailing party”, the term is generally interpreted to mean the party that achieved what they wanted “on a practical level.” (See Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773).
  2. A party has the right to recover attorneys’ fees if the HOA’s CC&Rs provide that attorneys’ fees are available. As an alternative and independent basis for attorneys’ fees, homeowners may also be entitled to attorneys’ fees under the language of the CC&Rs. While not all CC&Rs contain language granting attorneys’ fees, most modern CC&Rs do.

Does a Homeowner Owe the HOA Attorneys’ Fees if the Homeowner Loses?

Yes. Although a homeowner may recover its attorneys’ fees if they win, the HOA may also do the same. If a homeowner sues the HOA and the HOA wins, the losing homeowner must pay the HOA for its attorneys’ fees. In some instances, the homeowner will owe the HOA money even if the homeowner voluntarily dismisses the lawsuit. (See, e.g., Parrott v. Mooring Townhomes Assn., Inc. (2003) 112 Cal.App.4th 873).

HOA litigation can become tedious and complex, making it expensive to resolve when parties cannot reach a resolution. It is important that homeowners seek legal advice from experienced attorneys who are familiar with the Davis-Stirling Act and HOA law to understand their rights.

What type of attorney handles HOA disputes?

Given that HOAs involve real property, HOA disputes and complaints are within the property law sector. Attorneys who handle HOA disputes are typically real estate attorneys. However, real estate is a broad area of law. The laws involving HOAs and other community interest developments are niche and very specific. It is important to select an attorney that is familiar with the laws and regulations involving HOAs, including but not limited to the Davis-Stirling Act as well as federal laws.

Contact an Experienced California HOA Attorney Today!

The best course of action against an HOA varies and will depend on the unique facts and circumstances of a particular dispute. At Talkov Law, we have experienced attorneys who will represent you against your HOA. If you need help evaluating the best course of action, contact an experienced California HOA attorney at Talkov Law who can help you enforce or defend your rights.

Contact us to schedule your complimentary consultation.

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