Q&A: Attorney’s attitude toward homeowner’s problems is reprehensible

Question: I’m a director in a minority position on the board, making my vote and voice useless.

An elderly owner living alone has been having problems with her upstairs neighbor. There’s a lot of noise, parties and watering of balcony plants that spills over onto her patio. The woman has written several letters to the board and manager, but both ignore her. The majority directors and manager control which owners’ problems they want to resolve. The woman requested an Internal Dispute Resolution with the board.

Our association’s attorney told us, “All the board has to do to comply with the law is to have one board member meet with her, listen, say nothing, then adjourn.” He said, “That board member doesn’t have to say one word, doesn’t have to give her any answers and doesn’t have to make any decisions regarding her problem.” In the attorney’s words, “just give them a body and you’ve complied.” Then he billed our association $600 for that advice. Is our association attorney right?

Answer: The association should demand a $600 refund from the attorney because his attitude is reprehensible and his advice could get the association sued. He would have been better off admonishing the board to take the Internal Dispute Resolution procedure seriously and to view it as a cost-effective way to prevent litigation and unwanted liability for owners.

Merely stating that every board director owes a duty to the association and titleholders who fund the operations isn’t enough. Understanding the gravity of commitment and duty is the mainstay of that elected position. Part of that duty includes following the law, not this attorney’s bad advice or what appears to be a personal animosity toward owners.

In addition, directors need to use common sense, in other words, recognizing when someone is giving them wrong or bad advice. If the board knows an owner wants to resolve a problem and there is a cost-effective mechanism in place to accomplish that, the board should also know that feigning responsibility amounts to taking no responsibility at all. Allowing the manager, as an agent for the association, to ignore this owner is a dereliction of duty. All of this wastes association assets.

California’s Civil Code sections 5900 through 5920 set forth how disputes are to be resolved between members and homeowners associations. Civil Code section 5905 requires the association “provide a fair, reasonable, and expeditious procedure for resolving a dispute.”

Such Internal Dispute Resolution processes, the law states:

• Provide a means for the homeowner and the association to explain their positions at a mutually convenient time and place.

• Can be initiated by either party to the dispute. If the homeowner invokes the procedure, the association must participate. If the association starts the procedure, the homeowner can decline to participate and can appeal any decision to the board.

Most owners have limited knowledge and funds to fight an association on equal footing. Many titleholders have their one and only asset — their home — at great risk because of the deed-restricted title. Forcing a layperson who is already under pressure by the association to make snap legal decisions is not feasible.

Owners who are desperate to resolve their issues may see Internal Dispute Resolution as their only chance to speak and reason directly with the board. As a result of the owner’s stress level, he or she may impetuously succumb to poor choices, intimidation, misunderstandings, language barriers and anxiety during these meet-and-confer sessions. Forcing these owners into making what could be life-altering decisions off the cuff without counsel and reasonable time to prepare and obtain assistance would be unconscionable.

The California Legislature took those considerations to heart and, in an attempt to level the playing field between owners and their association during the Internal Dispute Resolution process, last month amended certain clauses of Civil Code sections 5910 and 5915, effective immediately.

The amendments remove any owner participation fee and state that the member and the association may be assisted by an attorney or another person at their own cost. The amended code also makes clear that a written resolution or agreement signed by both parties binds the association and is judicially enforceable as long as it isn’t in conflict with the law or the governing documents of the association.

Underlying the premise of all these laws is the presumption that boards are acting in “good faith.” Your association’s attorney has interpreted this as requiring nothing more than a scheduled date for titleholders to unilaterally complain to someone with apparent authority. There is nothing “fair” about pretending the owner’s concerns are legitimately given attention. There is nothing “reasonable” about feigning compliance with the law. There is nothing “expeditious” about ignoring Internal Dispute Resolution requests.

Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.