Confidential Hearings
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CONFIDENTIAL HEARINGS

QUESTION: A disciplinary hearing was held in executive session after a complaint was made by one homeowner against another. It was determined the second owner had violated the CC&Rs and he was directed to make corrections. The disciplined owner put the board's decision on Nextdoor.com and included the name of the person who made the complaint. An uproar spread through the community with people taking sides and some asserting the board should disregard the CC&R restriction. Did the disciplined owner have the right to tell others about the decision? Did he violate the rights of the owner who made the complaint?

ANSWER: When it comes to disciplinary actions, boards have an obligation to keep such matters confidential. Recipients of the discipline, however, do not. That means your scofflaw has the right to tell everyone about his violation, who turned him in, and the board's decision. Once he did so, he waived his right to confidentiality and the board can publicly discuss the matter.

CC&R Enforcement. Even though some homeowners want you to disregard enforcement of the restriction, you can't. It's one of your fiduciary duties as directors to uphold the governing documents. Most owners like and respect recorded restrictions because they protect property values. That's why they buy into common interest developments. Others, unfortunately, can't stand restrictions. When they move into an association, they cause grief for neighbors and boards alike. It sounds like you have one of those.

Recommendation: If the restriction in question is sufficiently unpopular, the membership can amend the CC&Rs to remove it. Your board should talk to legal counsel about whether it can or should be amended. That could lead to an informal poll of the community. If there is strong support for modifying or eliminating the restriction, legal counsel can prepare an amendment for membership approval. On the other hand, if there is strong support for keeping the restriction, your scofflaw can no longer rail against his neighbor and the board since the membership has affirmed its support for the restriction.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC