Q&A: What to do when HOA board won’t respond to requests for documents
Question: At homeowner association board meetings I ask for current and two prior fiscal years of documents. Nearly a year has passed with none of my requests fulfilled, so at great cost I hired an attorney.
The attorney wrote a letter to the board “pursuant to Civil Code sections 5930 to 5965” and as a “prerequisite to filing a lawsuit.” He stated the board was required to respond to our request for resolution within 30 days and warned that a “no” response would “result in a lawsuit being filed against directors and association for damages.” The board didn’t respond.
Four months later, my attorney wrote the board demanding a list of 30 general items I want to see per Civil Code sections 5200 to 5210 and demanded a viewing to occur within 10 days of receipt of that letter.
Five months have passed since the last letter, still no board response. Now the board won’t talk to me. So I filed a small-claims suit against the board to get the list of items I want to see and need to know what to do next. What about my small-claims court action?
Answer: To be taken seriously, titleholder and lawyer letters must be credible. To be effective, your document requests must be detailed and correlate to specific periods of time. When the board is put on notice of a lawsuit, providing documents to you may cease for many reasons, one of which may relate to litigation discovery processes.
Threatening to sue, and then failing to follow through, makes you and your counsel look weak and not believable. Once you are represented by counsel, the board will not communicate with you. To now communicate directly with the board, you must inform them in writing that you are no longer represented by counsel.
Before threatening the board in anticipation of litigation, titleholders should take advantage of administrative remedies to resolve their disputes. Request that board directors meet and confer, partake in internal dispute resolution and participate in mediation. All requests must be in writing, with signature required to prove receipt.
Owners begin the process by making proper demands for documents. Document requests made orally during board meetings or open forums do not comply with Civil Code section 5260 requiring all such requests to the board be delivered in writing.
Writing to the board “pursuant to Civil Code sections 5930 to 5965” is a meaningless phrase. Civil Code section 5930 pertains to filing enforcement actions wherein an owner may not file such an action in Superior Court unless the parties have endeavored to submit their dispute to alternative dispute resolution. Civil Code section 5935 provides a step-by-step guide on how to initiate arbitration. This Superior Court option should be a last resort, and the alternative dispute resolution requirement does not pertain to small-claims actions.
Demanding to see a “list of 30 general items” under Civil Code sections 5200 to 5210 is vague and ambiguous. Civil Code section 5200 merely provides word definitions. Civil Code section 5205 discusses document availability to members. Civil Code section 5210 provides time periods of required document availability and details limitations, in that the association shall make the specified association records available for the current fiscal year and for each of the previous two fiscal years.
Under Civil Code section 5210(b), when an owner properly requests access to association records, access to requested records shall be granted within the following time periods: association records prepared during the current fiscal year, within 10 business days following the association’s receipt of the request; and association records prepared during the previous two fiscal years, within 30 calendar days following the association’s receipt of the request.
Your proper written request must fall within precise statutory time frames for the requested documents. Write with specificity, leaving nothing to chance. Provide effective dates for each item requested. Demanding a generalized “laundry list” gets you nowhere.
Because California’s Legislature limited owners’ rights in viewing and obtaining documents, titleholders need to be disciplined and consistent in keeping current with making demands. The minute that escrow closes and every year thereafter until you sell, make written demands for key documents. Some important documents include pro forma budgets, board meeting minutes, complete copies of all association insurance policies and all bank statements.
Although you can file a Civil Code section 5235 small-claims action enforcing your right to inspect and copy association records, before doing so, make several more attempts to retrieve documents. To award a civil penalty of up to $500 for denial of each separate written request, judges will want to see a verifiable effort on your part consisting of cooperation in obtaining these items.
Consider withdrawing your small-claims court action “without prejudice,” meaning you can file it again later, and starting over.
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.
