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Association board can’t bar homeowners from meetings

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Question: We live in a 12-unit common-interest development with a three-member board and have a management company. An employee of the company attends board meetings but the minutes don’t reflect any “outside” person in attendance. We are not informed about board meetings in advance, and no notice of board meetings has been posted or circulated to owners this year.

The current board bars owners from its meetings based on their interpretation of our 1987 bylaws. A letter from the president stated: “Nowhere do the bylaws indicate that the regular board meetings are open to all members of the association. The regular board meetings function as any other corporation’s meetings. For the sake of efficiency in the administration of the corporation, these regular board meetings are not open to all titleholders but rather to, as the name indicates it, the board of directors of the corporation, and our failure to give advance notice of our regular board meetings to the rest of the HOA is simply because under our reading of the bylaws, we do not think it is needed.”

Does the Open Meeting Act supersede our bylaw provisions? What rights do association members have under the law, and what remedies do we have if the board continues to block us from attending?

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Answer: Generally, the law takes precedence over governing documents, including the association’s bylaws and the Declaration of Covenants, Conditions and Restrictions (CC&Rs). The Common Interest Development Open Meeting Act allows titleholders to attend association board meetings and speak during an open forum. Any prohibition of that in the bylaws is not enforceable.

Civil Code section 1363.05(b) states that “any member of the association may attend meetings of the board of directors of the association,” and that law supersedes your association’s bylaws. If directors continue to bar or prevent homeowners from attending such meetings, they are lawbreakers. Under California Evidence Code section 11, the term “shall” is mandatory, and the term “may” means that the decision to attend or not is left to the individual owner, not the board.

Your association’s board also breaks the law when it does not give notice of the meetings as required in Civil Code section 1363.05(f), which says that unless the time and place of the meeting is fixed in the bylaws, “members shall be given notice of the time and place of the meeting … at least four days prior to the meeting.” That notice must also include the agenda. Here, “shall” means that if the board fails to provide the notice, they are breaking yet another law. Titleholders may request that meeting notices and agendas be mailed to them, and the board must do so.

Under Civil Code section 1363.05(b), boards must provide minutes of their meetings to all titleholders and are obligated to tell these owners where and how to obtain them. The board can invite anyone it wishes to attend the meetings, but cannot legally block titleholders from being present. Anything that was discussed with management personnel present would make all those discussions non-privileged, including any discussions about legal matters. A management company employee never has more rights than an owner.

Check to see whether these unlawful actions will nullify your association’s insurance, including the directors and officers liability coverage. If you cannot get the board to change its practices, take action to remove the board. Failing that, consider filing a lawsuit and have the court remove them. A last resort is to ask the court to appoint a receiver to sort your association out. Lawsuits and receivers are time consuming and costly. But, if your lawsuit is successful, the court must award the prevailing party’s attorney fees as part of the judgment.

Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or e-mail noexit@mindspring.com.

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