Dealing with Irrational Boards
As a former community association attorney who fought in HOA trenches for almost two decades, I witnessed many instances where boards or individual board members acted outside their authority, acted irrationally, or simply ignored legitimate complaints or calls for action by homeowners.
One reader asked what to do when his board and the association’s manager failed to enforce the governing documents fairly and consistently? What if a board or manager refuses an owner’s request to review HOA documents? Or denies an owner’s request for a hearing? In each of the foregoing circumstances, the owner should be able to point to specific provisions of the governing documents which require explicit action and compliance by the board.
If a homeowner believes her board is failing to respond appropriately or is acting irrationally, she may consider:
Articulating the issue(s) as succinctly as possible;
Gathering all relevant written documentation;
Reviewing the association’s governing documents (Articles of Incorporation; Declaration, Bylaws, Rules & Regulations) and identifying which provisions control over the issue(s); and
Identifying all relevant persons who are witnesses, parties or have other persons with knowledge of the facts and circumstances giving rise to the issue.
Drafting a concise written letter or request to the board that embodies the four factors described above. If the association is professionally managed, then a copy of the letter should also be sent to the manager.
The association’s governing documents should have a process or protocol to resolve the dispute. If so, the owner should identify the process and insist on board compliance. If not, and if the board does not respond to the owner’s letter, then the owner can request a meeting with the board.
If the board continues to dismiss or ignore the owner, and if the professional manager is ineffective in helping to resolve the dispute, then the owner should seek third-party assistance. At that point, perhaps mediation or other alternative dispute resolution process can be implemented.
If an owner does not wish to seek legal assistance, and if they feel the board is failing to follow its governing documents or otherwise acting irresponsibly or irrationally, then the owner may wish to try to unseat the board through a recall election and vote of the association. An association’s governing documents, usually the Bylaws, outline the process for removing a director or the entire board.
A modicum of common sense and reasonableness also goes a long way to solving the problem. If all else fails and the board cannot be removed via special election, then mediation or court interaction may be required. If so, in claims arising from enforcement or other CC&Rs disputes, many governing documents allow the prevailing party to recover their reasonable attorney’s fees and costs.
Beware when proceeding in court, as the prevailing party fees provision can function as both a sword and a shield.