Question: On Nov. 6, the new management company manager sent this notice: "Residents of your unit are in violation of the Rules and Regulations/CC&Rs governing your association as follows: Failure to return homeowner information form. Another form is enclosed. Complete the form to avoid additional fines. You have been assessed a $25 fine for this violation!" I refused to complete the form because it's invasive and unnecessary, and the association does not have safeguards in place to protect my information.
On Nov. 23, I wrote asking that they "provide me with the exact reference to and quotation of the CC&R paragraph they state I violated and that defines the amount of the fine." Having received no response, I re-sent my letter Jan. 13. On Jan. 16, I requested the most recent copy of Association Rules/Regulations. On Jan. 23, I was notified the board denied request to remove the $25 fine. On Jan. 24, after comparing prior Rules/Regulations with present document, I wrote requesting management to specify the exact location in Rules/Regulations of the words "Homeowner/Tenant Information Form." On Feb. 10, with no response received, I re-sent my request. On Feb. 14, management emailed stating they "would not be responding on this topic any further. There is nothing further to discuss!"
After protracted machinations by management, I made a "Documents Request" for all board meeting minutes, years 2009 to 2014. On March 5, I prepaid document retrieval costs. On March 27, I requested "general notations for all executive sessions corresponding to the minutes I purchased." On April 11, I explained I didn't want executive minutes, I wanted "general notations." Management wrote "Minutes of executive sessions should NOT be distributed to the membership, Civil Code section 4950(a)." On May 20, management in cursive handwriting wrote "You are wrong!" and sent me Civil Code section 4950, 4935, stating, "You are NOT entitled to receive these minutes." I responded that 4935(e) states, "Any matter discussed in executive session shall be generally noted in minutes." On May 20, management sent me "Homeowner/Tenant Information Form" again. On May 29, I responded by again quoting 4935(e).
On June 6, management in cursive handwriting wrote: "See prior responses. Again, LAST time I will respond! You are NOT entitled to exec minutes!!" On June 30, I again asked. On July 8, management in cursive handwriting wrote: "Note this is my LAST response on this matter." August through November repeats this exercise in circular futility.
After thoroughly reviewing CC&Rs, rules/regulations, bylaws, minutes and all documents, I can find no authority or documentation for creation of this "Homeowner/Tenant Information Form." Now what?
Answer: This egregious yearlong "dialogue" underscores the board's abject failure to act in good faith, let alone supervise its third-party vendor manager, resulting in waste of titleholder assets.
You've painstakingly asked all the right questions, methodically requested all the right documents and did it in an orderly manner. Now, send a written demand that the board participate in Internal Dispute Resolution. At least one director must meet with you to discuss the invalidity of this bogus form and improper fine. At that time, request meeting minutes substantiating that the law was followed when the board unilaterally changed the rules and regulations, then fined you. Penalties and fines must be rationally related to a legal violation and not retaliatory.
To legally alter association governing documents, the board must follow the law. Changes are subject to notice requirements, take place at an open meeting where a motion is made detailing proposed changes, then carried to a vote by a director who seconds the motion. Depending on your governing documents, a vote by titleholders may also be required. Formality and deliberation are obligatory for association business documented in that meeting's minutes. Lack of any reference in the items and correspondence you received confirms legal procedures were not followed.
Civil Code section 4935(e) states: "Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting." The board cannot rely on nonexistent meetings or sessions to substantiate its unrestrained decisions. No form or rule change can override or supersede association governing documents; you were right to question this.
As a titleholder who followed procedures set forth in the common interest development act, and who exhausted your intracorporate remedies, you have standing to sue the board for failing to enforce the covenants, conditions and restrictions, and for contriving forms that invade your privacy.
Titleholders must use ingenuity and determination when attempting to secure answers and information from an uncooperative association and its unknowledgeable vendor manager. Unless governing documents provide a longer time frame, access to requested records may be limited to only three fiscal years. Owners who had the foresight to begin collecting these vital documents at the close of escrow, and thereafter without gaps, may be able to stave off expensive and time-consuming litigation, defend an action if sued or allege with particularity their own complaint.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.