No Due Process

Source: Adrian J. Adams Esq.

QUESTION: Our pool usage was revoked without any due process and nothing in writing. I went to use the pool one day and couldn’t get in. The president said we were banned as long as he was president and we were lucky we weren’t fined. I asked for a fine schedule but he couldn’t produce one. He said it depended on what the board saw fit for the offense. I mentioned the Davis-Stirling Act and he said it was nothing but a guideline. He said our CC&Rs are the law. Help!

ANSWER: Ah, where to start?

The Law. First, the Davis-Stirling Act is not just a guideline, it’s the law. It encompasses Civil Code sections 4000 through 6150. Violations by the board can result in lawsuits, fines, court orders and an award of attorneys’ fees. Second, your CC&Rs are not the law, they are recorded restrictions known as equitable servitudes. CC&Rs are high on the food chain but they’re a full step below the law.

Due Process. It’s entirely possible your family violated the rules, are a pain in everyone’s rear end, and deserve to have their privileges suspended. However, before any penalties can be imposed, the law requires that you first be given 10 days written notice of the violation and a hearing date so you can defend yourselves. Once the board hears the evidence and makes a decision, it has 15 days to give you its written decision.

Fine Policy. Finally, the board cannot create penalties on the fly. The board must comply with the association’s written fine policy (which must be published annually). If they don’t have a fine schedule, they can’t levy fines or suspend privileges.

RECOMMENDATION: If you’re violating the rules, you should stop. If your board is not following the law, they should start.