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EVIDENCE

Before an association can impose penalties against a member for violation of the rules it must (i) have persuasive evidence of a violation, (ii) hold a hearing at which (iii) the accused can view and dispute the evidence. Evidence can be eye-witness testimony, documentary, photos, etc. Sometimes the accused will demand pre-hearing discovery.

Discovery. Boards should adopt a "discovery" policy, i.e., the disclosure of facts and documents relevant to the hearing so the accused can prepare a defense. Boards can adopt one of the following policies:

  1. Limited Pre-Hearing Discovery. Allow relevant materials to be sent to the accused at least 24 hours prior to the hearing.

  2. Exchange Evidence at the Hearing. Use the small claims procedure of exchanging evidence at the hearing a few minutes before the start of the hearing. The accused should bring two copies of any documents and pictures he/she intends to use at the hearing so that one set can be given to the board.

Other Owners' Files. Sometimes the accused (or his/her lawyer) will demand the files of all other owners with similar violations. The board can decline such requests out of privacy considerations for other owners. At issue is whether the accused violated a rule, not whether others also violated the rule. This is no different than the practice followed by criminal courts--an accused does not have the right to demand the prosecution records of every other similar case in the state or county.

Depositions. Members do not have a right to conduct depositions for rules violation hearings any more than they have for small claims hearings.

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