Homeowner is hit with attorney letters and escalating fines

Question: Our board’s overzealous attorney is making a fortune billing my homeowners association in Hollywood. The association has entered my unit numerous times to see water damage caused by common areas but defers to the attorney who demands “free access entry at any time without notice.” I have allowed access with advance notice and with myself present. When I don’t capitulate to the attorney’s demands, he threatens to suspend my privileges or file temporary restraining orders and lawsuits against me. At a board meeting he called me a “bad girl” for creating problems, saying it’s my fault he is forced to fine me. He has convinced the board that assessments are limited but that fines are unlimited, and he has generated more than 30 letters stating it’s his duty to fine me. He’s fined me $34,000 over a six-month period for “refusal of the association’s right to enter” and $15,000 for “legal fees” he claims I caused the association to expend. Insisting I’m responsible for the association’s insurance rates going up, he billed me another $15,000. My fines are now up to $75,000. No association statements show these fines; they appear only in attorney letters. Are such attorney actions ethical?

Answer: Neither the attorney nor his actions seem professional or ethical, and there is no basis in law for him to fine you. Fines are “limited” in that they must be a part of the association’s governing documents, with the fine list distributed yearly to every titleholder.

Only the board of directors can levy fines. An attorney cannot initiate letters stating he is fining you without consent and direction from the board. To do otherwise is unethical and could result in discipline by the state bar, as would his allegations about increased insurance premiums if that’s not true.

Neither the attorney nor the board is in a position to demand free access to your unit. Owners do not forfeit their rights to privacy merely because they have a deed-restricted title.

To prevent abuse by the association, board of directors, employees, agents or vendors, access rights must be clearly delineated. Covenants, conditions and restrictions (CC&Rs;) should detail the circumstances in which the association has a “right of entry” to your unit. If governing documents provide a right of entry for an emergency, it must be a true emergency. If entry is necessary, it must be requested in a timely manner and the owner must consent. If an unannounced entry occurs, call the police and have the intruders arrested.

His threats to suspend your privileges and file restraining orders without a valid legal or factual basis could subject him and the association to liability. Trying to collect his fees from you is also illegal, as you are not his client and did not request the services for which fees are allegedly being charged. These actions are calculated to instill fear and despair in the hope that the targeted individual will meet payment or settlement demands. Calling you a “bad girl” is patronizing and defaming and may be a form of sexual harassment.

You must respond to attempts to muzzle you by demanding in writing the legal and factual basis for all fines levied, by denying the charges or allegations and by rejecting the fines.

An association that assesses fines without a valid legal basis or assesses titleholders unreasonably or in a discriminatory manner may be prevented from enforcing those actions and be subject to liability. Remember:

* Always communicate directly with the board.

* The board is obligated to listen to an owner and deal directly with any complaints.

* Keep correspondence copies to and from the association.

* Do not ignore any fine levied by the association, but challenge it immediately.

* Be prompt, consistent and coherent when documenting your protests of such actions.

* Demand a detailed explanation for every fine, including when the board approved its implementation and when notice to the homeowners was given.

* Request to meet with the board under the Common Interest Development Open Meeting Act, not in executive session.

Send questions to P.O. Box 11843, Marina del Rey, CA 90295 or e-mail noexit@mind spring.com.