Adams Stirling PLC


Meet & Confer. Associations must provide a "fair, reasonable and expeditious" procedure for resolving disputes between the association and its members without charging a fee to the member participating in the process. (Civ. Code § 5910.) The process is referred to as "Internal Dispute Resolution" (IDR) or "meet and confer."

Pre-Litigation IDR. An association may not file a civil action regarding a dispute in which the member has requested dispute resolution unless the association has complied with Civil Code § 5910 by engaging in good faith in the internal dispute resolution procedures after a member invokes those procedures. (Civ. Code § 5910.1.)

Notice. Associations must annually notify their members of both IDR and ADR dispute resolution procedures. (Civ. Code § 5920§ 5965.)

Default Procedure. If an association does not establish its own procedures, then the following procedures automatically apply (Civ. Code § 5915(b)):

(1) The party may request the other party to meet and confer in an effort to resolve the dispute. The request shall be in writing.

(2) A member of an association may refuse a request to meet and confer. The association may not refuse a request to meet and confer.

(3) The board shall designate a director to meet and confer.

(4) The parties shall meet promptly at a mutually convenient time and place, explain their positions to each other, and confer in good faith in an effort to resolve the dispute. The parties may be assisted by an attorney or another person at their own cost when conferring.

(5) A resolution of the dispute agreed to by the parties shall be memorialized in writing and signed by the parties, including the board designee on behalf of the association.

Written Resolution. Any agreement resolving the dispute must be in writing and signed by both parties. The agreement cannot conflict with the law or governing documents and within the authority of the board. (Civ. Code § 5915(c).)

"Appealing" a Penalty. There is no specific appeals procedure described in the Davis-Stirling Act for penalties imposed by an association against a member for violation of the rules and regulations. However, the IDR procedures described above could be used to appeal a decision since a meet and confer is mandatory if requested by a member. When it comes to ADR (mediation and arbitration), the association has no obligation to accept a request for ADR. If, however, the member is planning to sue the association, the member may be obligated to request ADR before filing suit, at which point the association should accept the request for ADR.

IDR as a Form of Harassment. Once an IDR has been held on an issue, boards are not required to hold repeated requests by the same owner on the same issue. A disgruntled homeowner will sometimes make repeated requests to harass boards by engaging directors in endless rounds of IDR on the same issue. Once the matter has been addressed and documented, boards can decline any further requests on that issue. 

Attorneys in IDR. A change in the Internal Dispute Resolution statutes that took effect January 1, 2015 allows members to bring an attorney or other person with them to an IDR meeting with a board member. (Civ. Code § 5910(b); § 5915(b)(4).) This change in the law has created risk for associations.

IDR Risks. The change makes no provision that owners give notice to the board that they intend to bring an attorney, i.e., they can ambush the board member designated to meet with them. Moreover, there is no mediation privilege. That means that anything said in IDR is not confidential can be used against either party in subsequent litigation.

Reschedule Meeting. If a homeowner brings an attorney to an IDR session, the meeting should immediately be rescheduled to a later date when the association's legal counsel can attend. The homeowner has no basis to complain about the postponement since California's Rules of Professional Conduct prohibits attorneys from communicating with parties without their legal counsel present. (Rule 2-100(A).)

Recommendation: Whenever a homeowner requests IDR, send a letter confirming the request and setting a date for the meeting. The letter should include language asking for advance notice if the owner intends to bring a lawyer to the meeting. Include a statement that bringing an attorney without prior notice will result in rescheduling the meeting so the association's legal counsel can attend.

ADR Comparison. See ADR-IDR Comparison Chart.

ASSISTANCE: Contact us about establishing a written enforcement procedure for your association with violation reports, form notices, hearing procedures, and updated fine schedules. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC