By Kelly G. Richardson, Esq. CCAL
Dear Mr. Richardson:
Am I correct in my thinking that our Board can set up a fine schedule without the vote of the membership?
Thank you, A.P., Newhall.
Associations, before imposing a disciplinary fine, must have a “schedule of fines” in writing, as required by Civil Code 5850. Boards can only impose fines which are listed in that schedule of fines, under Civil Code 5850(c). The schedule of fines must be one of the disclosures included in the Annual Policy Statement (see Civil Code 5310 for the full list).
Adoption of the schedule of fines, or any changes, is by board vote, but the matter must be treated as an operating rule change, per Civil Code 4355(a)(3). This means the full 30-day notice to members must be given, under the process for rule changes described in Civil Code 4360.
Many associations do not realize that, to be enforceable, a fine must be listed in the written schedule of fines.
Hoping this is helpful, Kelly
I live in a condo association that has a continuing issue with homeowners who owe small amounts of money for fines and never pay them. Of course, when they sell, they clear all fees and charges, but we want to get the money now and get it off our books. How can this be accomplished?
B.C. Mission Viejo
Technically speaking, the HOA could pursue legal action against members who have unpaid fines. If the amounts are minor, it is not worth the expense. Some associations amend their CC&Rs to allow the HOA to record a lien against the property for unpaid fines. This must be authorized by the CC&Rs. The law specifically does not allow associations to pursue non-judicial foreclosure on fines, under Civil Code 5725(b).
Our neighbor has a son who has a criminal past, and has had episodes of yelling and cussing at no one in particular at all hours. We have called the police several times and they say they can’t do anything until he does something that is a danger to others or to himself.
So, we filed a nuisance complaint with our HOA, and his antics have escalated. I am told that his parents have paid the fines imposed and will continue to do so in order to allow their son to stay in the home.
Any suggestions? D.B., San Juan Capistrano
Sometimes fines simply are not sufficient to compel a resident to be a good neighbor. Association boards can allow fines to build to huge amounts, while the non-compliance continues to be a problem for the community. If several months of fines have not caused the bad neighbor to pay attention, sometimes other action is necessary.
One of the most difficult decisions a board (and their legal counsel) make is deciding when to become involved in dealing with a harassing neighbor. There is no hard and fast line. When a situation builds to a point where it is affecting multiple neighbors, and fines are not working, unfortunately, at that point legal counsel may be needed to intervene.
Your board may have already discussed this with HOA counsel, and if not yet, they should.
Best regards, Kelly
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Ober PC, a law firm known for community association advice. Submit questions to firstname.lastname@example.org. Past columns at www.HOAHomefront.com. All rights reserved®.
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