Notice of Hearing. Boards must give notice of a disciplinary hearing and the alleged violation. The notice must be in writing and delivered either in person or by individual delivery per Section 4040, at least 10 days prior to the meeting. (Civ. Code §5855.) If the notice is by mail or overnight delivery, it must be addressed to the member at the address shown on the books of the association. (Civ. Code §4040(a)(1).) The hearing should be held in executive session and must be noted on the posted agenda for the board meeting (Civ. Code §4920(d).)
The person who is given notice of the hearing is not required by law to attend.
Request to Reschedule. Requests by an owner to reschedule his/her disciplinary hearing should be in writing. Boards should routinely honor the first rescheduling request. Thereafter, the request should have good cause, otherwise the owner may try to delay the hearing indefinitely.
Appearance by a Friend. Sometimes the person will ask that a friend or relative appear in their place. The person may be sick or infirm or out of town and want someone to attend the hearing. Boards should be flexible on this issue and allow a stand-in when appropriate. The person could present evidence as to why the owner should not be disciplined. The representative should not be a lawyer. The person cannot disrupt the hearing or attack the board any more than he/she could disrupt proceedings or attack the judge in small claims court. If the person does, the board can end the hearing and dismiss the person from the room. The board can can then make its decision based on the evidence presented.
Appearance by Letter. Members may unable or unwilling to attend a hearing. Whatever the reason might be, members should have the right to submit their defense in writing rather than appearing personally. "A procedure is fair and reasonable when it provides an opportunity for the member to be heard, orally or in writing . . ." (Corp. Code §7341(c)(3).)
Lawyers at Hearings. Members do not have a right to bring a lawyer to the hearing or send one in their place. Boards can set their own policy about allowing or disallowing lawyers at disciplinary hearings. Boards can adopt one of the following models when it comes to hearings:
1. Superior Court Model. Some associations adopt the superior court model and allow owners to have representation. The benefit is that owners feel their rights have been protected. The downside is that lawyers intimidate boards and drive up legal fees. Generally, boards want the HOA legal counsel to be present if the owner's lawyer is attending. Under this model, if an owner unexpectedly brings a lawyer, the board may continue the hearing to a later date so the association's lawyer can attend.
2. Small Claims Model. In the alternative, associations can adopt the small claims model of prohibiting lawyers. This minimizes intimidation and reduces legal fees.
Failure to Appear. Once proper hearing notice was given, a violation hearing may proceed against a member even if the member fails or refuses to attend the hearing. The board cannot levy penalties against the person simply because they failed to appear. The board must hold the hearing in the person's absence and review the evidence related to the violation. If the board finds that there is sufficient evidence that the member violated the rules, the board may, based on the evidence, levy appropriate penalties. The board must then give notice of its decision to the member.
Notice of Decision. Unless the association's governing documents provide for a shorter notice period, notice of the board's decision must be given by personal delivery or first-class mail within 15 days following the board's decision (Civ. Code §5855(c); Corp. Code §7341(c)(2).) The letter of decision should include the board's findings, i.e., factual findings and how it arrived at its decision. (Ironwood v. Solomon.)
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