Getting ‘Bad Apples’ to Cooperate

QUESTION: Our homeowners association includes a few “bad apples” who do not abide by the covenants, conditions & restrictions (CC&Rs;). We have heard of other associations that impose fines against owners who are consistently unresponsive to notices from the association. Can the association levy a fine for CC&R; violations? How does the association collect?

ANSWER: California Civil Code, Section 1366(c), states that the association may collect a late charge from an owner who isn’t paying assessments, and it sets the amount of the late charge if the association’s Declaration of CC&Rs; is nonspecific.

If your board wants to fine owners for violations other than nonpayment of assessments, your board of directors should read your CC&Rs; to see if the association is given the power to levy fines. If they do, follow the procedures as stated in the documents.

If the power is not stated, then the board should determine whether they want to amend the CC&Rs; to allow them to levy fines. An amendment requires a vote of all members.

If the board decides to fine owners, it should establish a procedure that will be consistently followed and notify all owners of the new procedure.

The board must treat all violators fairly and equally. It is wise to notify the owner of the violation, giving the owner an opportunity to respond within a specified time and informing the owner of the consequences of further violation.

Clearly state the nature of the violation and the amount of the fine that will be levied if the violation continues or occurs again. The owner should be given an opportunity to appear before the board at a hearing in order to establish guilt or innocence and provide due process. The board should give adequate notice regarding the hearing date and allow the owner to reschedule the date if there is a legitimate reason.

Fines must be fair and reasonable. If a fine is imposed after adequate notice and hearing, the board should follow through and make every effort to collect. Fines can be added to the assessment billing.

If the owner does not pay the fine, the association may be able to collect in Small Claims Court if adequate records have been kept that document due process and establish the owner’s obligation to pay. Do not proceed for collection of an unpaid fine in the same manner that you would collect unpaid assessments and late charges. Most attorneys do not recommend filing liens for unpaid fines.

Building Departments Keep Copies of Plans

Q: The board of directors for our condominium is investigating the cause of some serious roof problems. If we find that construction defects are involved, our association may decide to file a lawsuit against the builder/developer. We need the building plans to progress with our investigation. The board feels that the builder/developer will not voluntarily cooperate with our research. Does the city have a copy of the plans? Will the city release them to the board of directors, since the association now owns the building? We want to do as much as possible ourselves before we call an attorney.

A: In this instance you could use some legal advice. I recommend that all associations establish a working relationship with a good association attorney. I passed your question along to attorney Leonard Siegel who represents many community associations. Here is his response:

“The California Legislature recently adopted amendments to Sections 19850 and 19851 of the Health and Safety Code. These sections now require local building departments to maintain official copies of the plans of buildings, including plans of ‘common interest developments’ (e.g. condominiums, stock cooperatives, planned unit developments) during the life of the building. Prior to the adoption of the recent amendments, common interest developments were exempted.”

Other noteworthy provisions of the amendments:

--The copy of the plans maintained by the building department may be on microfilm.

--The plans must be available for inspection at the premises of the building department.

--The copy may not be duplicated except with the written permission of the professional who signed the original documents and the board of directors. The permission by the individual who prepared the plans “shall not be unreasonably withheld.” The plans may also be duplicated upon an order of the court.

--The person requesting permission to duplicate the copy must sign an affidavit stating, among other things, that the plans will be used only for the “maintenance, operation and use of the building.”

--The person requesting the plans must also acknowledge that the architect who signed the plans is not responsible for subsequent changes not authorized or approved by the architect.

--The building department may charge a fee in an amount reasonably necessary to cover the cost of compliance.

“Note: It is not clear whether the requirements of the act apply only to projects developed after the effective date of the amendments or whether they apply to all developments, irrespective of the date of construction if the plans are still on file. In many instances, building departments do not maintain records of older buildings. Presumably, the statute will be interpreted to require building departments to maintain plans which it currently has on file which were generated prior to the enactment of these amendments.”

Poor Upkeep Brings Extra Expenses Later

Q: My homeowners association doesn’t perform repairs as they are needed. The board doesn’t want to raise the assessments and consequently we don’t have sufficient staff to maintain the building and grounds properly. Those of us who want the property maintained have no influence. There is no way to effect the repairs ourselves. What can we do?

A: The board of directors isn’t doing you any favors by keeping the assessments down. They have an obligation to maintain the property in a manner that protects the owners’ investment and provides a safe and habitable dwelling. The annual budget should allocate funds for adequate maintenance of the property.

The budget must include a reserve analysis that estimates the current replacement cost, the remaining useful life and the methods of funding the future repair or replacement of the major components of the common elements.

The downward spiral created by poor maintenance is sometimes very difficult to overcome. Some of the consequences might be extra expense caused by the lack of preventive care, special assessments due to inadequate financial planning, decrease in marketability of the units and vandalism and other damage due to a lack of pride in the property.

You and the other owners who are concerned about this matter should offer your help to the board. Volunteer to serve on the budget committee and work with them to help them learn about their fiduciary responsibilities. If the board is unresponsive, then you may want to work to replace them in the next election.

Readers with questions or comments can write to her in care of “Condo Q&A;,” CAI, P.O. Box 84303, Los Angeles 90073.