Closed Association Meetings Violate Law

Question: Our association in Torrance has turned into a terrible place to live. Of 45 homeowners, a small clique has dominated board positions for more than nine years and shut out all other homeowner participation. One guarantee for their re-election is by their overuse of the phrase “fear of being sued” and help from the chosen clique of all-too-willing homeowners in furthering their exploits.

Board positions and meetings are preordained. Only handpicked owners are allowed to attend meetings, usually friends of board members. All others must write for permission to attend at least 30 days in advance, give an acceptable reason for attending and obtain approval to attend.

Those who have attended said once in the meeting it was not called to order but was treated as a “listening session.” After the board listened to the homeowner, he was asked to leave because the board said they had to call their “real” meeting to order.

The minutes, if any, are sparse and never report the “listening session” topics or the attendees. It is as if the meeting never took place and was merely produced to placate owners who insisted on attending. Homeowners are afraid they will suffer reprisal if they speak out against the board.

Several times over these nine years I have requested mediation or arbitration to discuss these disparities but the board brushes it off by saying there is no problem. Is there anything that can be done about this situation or do I have to sell and move?

Answer: The refusal to conduct meetings or attempting to limit who can and cannot attend is illegal in Civil Code section 1363.05, that part of the Davis-Stirling Act titled the Common Interest Development Open Meetings Act. Simply put, it permits “any member of the association [to] attend meetings of the board of directors.” The law also requires that the “board of directors of the association permit any member of the association to speak at any meeting of the association or the board of directors, except for meetings of the board held in executive session.”

The “listening sessions” appear to be an excuse for violating the rights of homeowners under color of authority, but when there is no penalty for disobeying the law, some boards think nothing of doing just that. Understandably, homeowners view omissions of topics discussed in board meetings as a form of manipulation or intent to mislead, but options in these cases are limited to either silently accepting the board’s acts, risking the consequences for speaking out or seeking a legal remedy.

Your board’s actions are more likely to result in a lawsuit to be brought by a homeowner forced to sue the board to enforce his or her rights rather than any fear raised by the board in an effort to remain in power. Boards using these scare tactics then point to the lawsuit and say that their fears were well founded when, in fact, the unlawful acts are what prompted the suit in the first place.

Whether the perceived wrong is corrected by mediation, arbitration or lawsuit, or not corrected at all, every owner pays one way or another.

Accurate reporting of minutes to all owners is made even more important if the board is a nonprofit or mutual benefit corporation and wishes to maintain that status. Minutes serve as an element of notice and relay information regarding the status of the association and actions taken by the board in the common interest development. The failure of your board to include certain items in the minutes may not be a per se violation of the law but could expose every homeowner to potential liability depending upon what was or was not included.

In a recent state appellate court decision, an entire association was held liable for injuries sustained by one of its own homeowners because they had notice of a dangerous condition for more than two years but did nothing to correct it. The law requires that matters taken up by the board must be reported in the minutes “including a general description of matters taken up in executive session” and that those “minutes, minutes proposed for adoption that are marked to indicate draft status, or a summary of the minutes, of any meeting of the board of directors of an association, other than an executive session, shall be available to members within 30 days of the meeting.”

Mediation or arbitration in the situation you describe may become an impediment instead of a solution. A board that has prolonged its reign for more than nine years using fear tactics rather than fulfilling its obligations to homeowners is not likely to go quietly.

Enlisting a clique of homeowners to aid and abet the goals of a board pits owner against owner.

Homeowners must find the strength to stand up and challenge boards like this, voice their dissatisfaction to other owners and take charge of their interests.

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Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Both live in common interest developments and have served on various association boards. Send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail CIDCommonSense@aol.com.