CATEGORIES OF BOARDS
1. Exceptional Boards. Exceptional boards are not the norm. Being on top of everything all the time, consistently communicating with members, responding quickly to complaints and never making mistakes is not sustainable. Complaints about good and exceptional boards are most often from owners who don't like rules.
2. Good Boards. Most boards are good boards. They volunteer their time, address community issues, and generally make good decisions. They enforce the rules, repair the common areas, and fund the reserves. However, they can be slow to act and sometimes make mistakes. Even so, they care about the membership and their intentions are good.
3. Marginal Boards. There are a fair number of marginal boards. Their directors serve because no one else will. They put in their time and try to avoid difficult decisions. They minimize rule enforcement and avoid spending money. They rationalize that doing nothing keeps dues down. Many owners get frustrated with such boards but not enough to volunteer their own time to serve on the board. It's not until some crisis hits that more qualified volunteers step up.
4. Dysfunctional Boards. Dysfunctional boards consist of directors who are at each other's throats. Nothing gets done because they are too busy fighting each other. There are strong personalities on differing sides of every issue and they are unyielding in their opinions. Sometimes they hate each other and engage in personal attacks. Each side develops a following and splits the community. Feelings run deep and it takes years to recover from the strife. Fortunately, dysfunctional boards are also few in number.
5. Bad Boards. Fortunately, truly bad boards are few in number. They tend to be self-serving and driven by personal agendas. It has been my experience they don't follow legal advice and I eventually withdraw from representation (a polite way of saying I fire them). Once their path of destruction is visible to everyone, they usually get sued or thrown out of office, or both. A good board is then elected to clean up the mess.
DEALING WITH BAD BOARDS
Sometimes boards go rogue, are punitive, or are just incompetent. Members who are unhappy with board decisions (or indecision) can do any or all of the following:
1. Remain Silent. Be part of the silent majority... say nothing and do nothing and hope the problem goes away. Things run in cycles so sometimes this strategy works. You just have to be patient.
2. Use Open Forum. Address the board in an open forum. Be respectful and clear in describing your position. The board may not be aware of the problem and bringing it to their attention should get results. If you are hostile, rambling, and make unreasonable demands or threats, the board will label you as a nut-job and reject your request.
3. Write Letters. If the board does not respond to your open forum request, follow up with letters. Do this because the squeaky wheel gets the grease. Also, boards don't like paper trails that create potential liability. Keep your letters respectful and businesslike. Do not engage in personal attacks or exaggeration. You can also request a membership list and write to the membership and encourage them to send letters to the board. Be careful not to engage in defamation. Stick to the facts.
4. IDR. If the open forum and follow-up letters don't resolve the problem, try internal dispute resolution. Even if IDR does not work, it keeps the issue in front of the board.
5. ADR. If IDR is unsuccessful, request alternative dispute resolution. This is more costly since it normally involves attorneys.
6. Run for the Board. If the above actions don't resolve the issue or you don't want to involve attorneys, run for the board (or support responsible people who will). First, examine your motives. If the reason you want on the board is to get something for yourself at the expense of the community, that would be a conflict of interest which could lead to a breach of your fiduciary duties.
7. Recall the Board. You can launch a recall of the board. This is a drastic measure and very disruptive to the community. It may permanently damage relationships with neighbors and create life-long enemies. Hence, your issue should be sufficiently serious that it cannot wait until the next annual meeting.
8. Notify the State. Neither the Department of Real Estate nor the Office of the Attorney General has the interest or the jurisdiction to get involved in homeowner association disputes. According to an FAQ on the DRE's website, "We suggest that members refer to their governing documents (Articles, Bylaws, Declaration, etc.) for dispute resolution remedies. The California State Attorney General's office provides some oversight for incorporated homeowner associations. Depending on the nature of the problem, you may consider seeking the advice of a private attorney or contacting your local district attorney's office."
9. Litigate. If none of the above works or you're in a hurry to lose money and make enemies, you can sue your association. You should be prepared that lawsuits are lengthy, expensive, emotionally draining, and unpredictable. So carefully weigh the cost of litigation against the hoped-for benefit... and then weigh it again. If you're suing to punish the board because of a perceived sleight or to prove a point, you're one of the crazies. If the board is involved in significant violations of the Davis-Stirling Act, members can (depending on the particular violation) file a complaint in small claims court or file an action in superior court.
10. Move. If you live in a dysfunctional association (one where the community is badly splintered and there is endless litigation), sell your property and get out before they cause you financial and emotional ruin. Look for a home in a good association. Most associations are well-run and one will be a good fit for you. Or find a single-family home that's not in an association.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.