I don’t know where this board thinks a retiree on a fixed Social Security income is going to come up with that kind of money. The value of my unit has declined so much that if I attempt to sell, the bank says I’d need permission for a short sale. I tried renting the unit but the rent does not cover the mortgage payments. I simply cannot afford the HOA dues and now a special assessment. Do I have any recourse with the HOA?
Answer: You may not be able to control association charges and assessments, but you have an obligation to continue paying homeowner association dues until you sell your unit or transfer its title to another owner. Failure to pay association dues and all assessments could result in a lien being placed on your property and ultimately, if not paid, foreclosure either judicially or non-judicially, under Civil Code section 5720 (limitation on foreclosure).
Although you may have thought you merely purchased an affordable condominium, homeowner associations are a business. As such, the titleholder’s obligation to pay association assessments is independent from the association’s obligation to repair or its ability to levy fines and penalties. The association board of directors’ failure to perform repairs on your balcony railing does not excuse you from the obligation to pay assessments.
Buyers should familiarize themselves with Business and Professions Code section 11018.1 and weigh accordingly their common interest development property purchase subject to a homeowners association with a board of directors. Business and Professions Code section 11018.1(c) makes clear that when contemplating the purchase of a dwelling in a common interest development, you should consider factors beyond the attractiveness of the dwelling units themselves.
Study the governing documents and give careful thought to whether you will be able to exist happily in that atmosphere. In short, “they” in a common interest development is “you.” Unless you serve as a governing board member or on a committee appointed by the board, your control of the operation of the common areas and facilities is limited to your vote as an association member. There are actions that can be taken by the governing body without a vote of association members that can have a significant effect upon the quality of life for owners and the value of their asset.
As an owner, once you receive an assessment bill that you will have difficulty paying, submit a written request to meet with the board to discuss a payment plan for that potential debt. According to Civil Code section 5665, the association shall provide all owners the standards for payment plans, if any exist. If such a plan does not exist, still ask for one by writing directly to the board.
Once requested, the board shall meet with the owner in executive session within 45 days of the postmark of the request, if the request is mailed within 15 days of the date of postmark of the notice, unless there is no regularly scheduled board meeting within that period, in which case the board may designate one or more directors to meet with the owner. Pursuant to Evidence Code section 11, the term “shall” means “mandatory.”
Be forewarned, in the event of a default on any payment plan, the association may resume its efforts to collect the delinquent assessments from the time before entering into the payment plan.
You may also demand that the association’s board of directors partake in an internal dispute resolution process to resolve this problem. This too must be a written request. Pursuant to Civil Code section 5920, the association’s annual policy statement prepared pursuant to Civil Code section 5310 shall include a description of the internal dispute resolution process as provided throughout the common interest development act, but particularly noted in Civil Code sections 5905 to 5920. Once in the internal dispute resolution meeting, explain your situation and ask directors to work with you in providing a method for payment that will not pose a hardship.
In addition to these remedies, continue to make document demands as they pertain to the expenditures you are questioning. Verify that the expenditures were necessary and contractors were licensed. If board directors fail to provide the documents, don’t waste any time: Go straight to small-claims court pursuant to Civil Code section 5235.
An owner may bring an action to enforce his right to inspect and copy association records. If a court finds the association unreasonably withheld access to such records, the court shall award the owner reasonable costs and expenses, including reasonable attorney’s fees, and may assess a civil penalty up to $500 for the denial of each separate written request.
Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.