Board must accommodate owner’s disability when scheduling meeting

Question: I received a notice from my homeowner association board around July 16, 2012, demanding I attend a hearing on July 28, 2012, to assess a fine to my account for having a renter. Owners are allowed to have renters but the board alone decides who can and cannot have a renter.

They sent me a letter on July 29, 2012, fining me $100 for the entire month of July for failure to obtain permission to have a renter in my property while I am being medically treated. The person residing in my home is not a renter. Can this board fine me for the entire month of July when it was instituted only the last two days of July? I wrote the board asking them to define the word “renter.” They refused.

I am an 89-year-old disabled lady who has suffered two heart surgeries in two months and I’m unable to walk without assistance and a nurse practitioner. Due to my health, I’m staying with caregivers until I can return home. The board refused to give me advance notice to obtain adequate medical assistance, employ an attendant to accompany me and arrange transportation to the meeting. They refused to reschedule that meeting. Is this legal? What are my rights?

Answer: The governing documents should set forth the criteria for determining who can and cannot rent out a unit and also provide a definition for the terms “renter, rental, lessor, lessee.” If that authority is lacking in your governing documents, then the board’s actions are beyond the scope of its ability to make such determination and to do so is illegal and without any force and effect.

Further requirements set forth in Civil Code section 1360.2(a) make clear that an owner in a common interest development shall not be subject to a provision in a governing document or amendment that prohibits the rental or leasing of any separate interest to a renter, lessee or tenant unless that governing document or amendment was effective prior to the date the owner acquired title. Amending, restating and/or rewriting any portion of the governing documents, no matter the reason, could result in nullifying the existing rental restrictions.

Boards are required to circulate notices relating to monetary fines when they are enacted, and to any new owner, along with the authority for member discipline as provided in the governing documents. If the fines change, Civil Code section 1363(g) requires a new notice be given to all titleholders. If those notices were not given or were untimely, or did not satisfy the statute, the rules allowing for such fines are ineffective, and the fines may be unlawful or voidable, meaning you do not have to pay them.

The board must accommodate your disability, provide due process, reschedule the meeting and give you an opportunity to be heard. Under Civil Code section 1363.05, notice of that open meeting must be timely, circulated to all owners and accompanied with an agenda. Should the board members want to meet in an executive session to discuss this, tell them the privilege to meet in the session is yours, not the board’s, and you don’t want that. Insist on an open meeting in which their actions are accountable to the owners and documented in the meeting minutes.

Because your physical condition makes it difficult if not impossible for you to attend the meetings without assistance, you did not have an opportunity to be heard. This is one of the fundamental principles of justice, so you were denied due process. The board’s failure to accommodate your disability could mean it violated the Americans With Disabilities Act and could be subject to penalties.

Before the board can institute a fine, the owner is entitled to request a meeting with the board. The board must provide adequate notice of both the meeting and the fine. Initiating and then issuing a fine based on an alleged violation that occurred during only the last two days of the month is unreasonable. Fines cannot be retroactive. If the fine became effective the last two days of a particular month, the fine cannot then pertain to the entire month.

The late Stephen Glassman, an attorney specializing in corporate and business law, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.