Board skirts meeting minutes
Question: When we bought our deed-restricted La Habra home, no one told us we “had” to attend board meetings. We automatically trusted our neighbor board members to do the right thing. So I was stunned when the president told me he never distributes final minutes because he looks at them as “revisionist history.” If the association goes to court, they can revise them.
For the 12 years we’ve lived here, most homeowners have not been able to obtain copies of draft or final minutes. Owners lucky enough to obtain copies of the few meetings they attended said their notes of those meetings differed from the draft copies they were given.
We have become embroiled in litigation with our association. In court, the board presented minutes marked “final” as evidence to support their case. The minutes that were entered into evidence differed from several versions that other homeowners had, yet the judge accepted them as prima facie fact.
The minutes were used against us at trial. We feel this was unfair. How can this be allowed?
Answer: California homeowners living with deed restrictions in common-interest developments are subject to some laws that place them at a disadvantage in a court of law and within their own associations. This is one of those situations.
Rather than allow for the disproving of minutes, the Corporations Code establishes that the “original or a copy of the bylaws or of the minutes of any incorporators’, members’, directors’, committee or other meeting or of any resolution adopted by the board or a committee thereof, or members, certified to be a true copy by a person purporting to be the secretary or an assistant secretary of the corporation, is prima facie evidence of the adoption of such bylaws or resolution or of the due holding of such meeting and of the matters stated therein.”
Prima facie means the evidence by itself is sufficient to establish a fact. At the same time, a competing code section makes it a crime to falsify minutes.
In any trial, admissibility of evidence is up to the judge. When testimony conflicts, differences often serve as a test of credibility. If the association’s secretary certifies the minutes, the law leaves no room for evidence to the contrary, no matter how compelling.
Homeowners are left with a negligible opportunity to prove a conflict exits. This makes it easy for boards to fabricate minutes and deprive homeowners of rights that would be available to them but for the fact they live in deed-restricted complexes.
The Davis-Stirling Act dictates that homeowners are entitled to view the minutes of board meetings, whether those minutes are draft or final, and that those minutes “shall be available to members within 30 days of the meeting.” Homeowners must demand copies and retain them for whatever needs might be required in the future.
Part of the homeowners’ responsibility in owning deed-restricted property is attending board meetings. Knowing a board’s actions can have a significant effect on your ownership interests. Should you find yourself in litigation, attending a board meeting soon proves to be a minor inconvenience compared with the major disadvantage of not doing so.
During board meetings, homeowners need to take their own minutes, noting what motions are made, the vote on those motions, the subject matter and a digest of each board member’s report. If the board adjourns to executive session, note the time and ask for the purpose of the private session.
This information can be effective when a board fails to act after a motion is approved or acts when a motion has been defeated. This information is also important if the board denies that a motion was made when, in fact, it was.
If the board misstates what occurred in the published version of minutes, document those discrepancies in a letter to the association and remind the board members that it is a violation of the Corporations Code.
When several homeowners contradict a board’s version of minutes, a court may be persuaded to look unfavorably at those minutes as well as actions of the board. If a board lies about the contents of minutes and breaks the law, those inconsistencies could be the turning point in a trial.
Though these defects in the law have been brought to the attention of the Legislature, no bills have been introduced to return to homeowners the rights taken from them.
Stephen Glassman and Donie Vanitzian are the co-authors of “Villa Appalling! Destroying the Myth of Affordable Community Living” (Villa Appalling Publishing Inc., 2002). Please send questions to: P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: NoExit@mindspring.com.
