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Sunday, August 05, 2012
Can association fine homeowner for cursing at board president?
Question: Management sent me a "cease and desist" letter saying I'm fined $50 and ordering me to appear at an executive session meeting because I swore at the board president. It said "further noncompliance will constitute additional fines assessed to" my account for violating the association's governing documents, stating:
"Illegal, offensive or obnoxious activities that interfere with an owner's quiet … enjoyment … are not permitted.... During the last inspection of the property, a vendor, management and a board member were in attendance where the board member, management and the vendor heard you utter profanity at the board member specifically."
I have repeatedly asked the president to stay away and not speak to me or my family members. She's always seeking to castigate, vilify and assess fines to people of color, especially immigrant owners. While in a common area she made a condescending and inflammatory salutation to me and my wife. I responded with an obscene and vulgar cuss word, which was apparently overheard by management and a vendor coincidentally out of sight but within earshot. Can they fine me for that?
Answer: Before fining you, the board must explain how your actions violate the governing documents. Using nebulous terms such as "illegal, offensive or obnoxious," without defining exactly what those terms mean, probably does not meet the mandate of due process. Although using profanity may not be nice, California's courts have held that "words alone" are not enough to incur liability. Even if someone thinks the words "offensive," that is not enough to qualify them as interference with that person's quiet enjoyment of his or her own unit, especially if they are uttered outdoors.
The attempt by management personnel to define "interference with an owner's quiet enjoyment" could be deemed an unauthorized practice of law without a license, a misdemeanor in California but a prosecutable offense nonetheless.
An association cannot order a member to appear anywhere, including at an executive session to discuss fines. Civil Code section 1363(h) provides that when the board meets to consider assessing a fine against a titleholder, it must give notice of that meeting to all owners. If the titleholder chooses to attend — and he should, if only to protect what few rights he may have — the decision to meet in executive session is made by the titleholder. An executive session is not a meeting per se, despite claims to the contrary. It is a session that is entered into during an existing meeting.
If such actions against you are due to your race or nationality, you may have grounds for alleging discrimination by the association and the board president. Contact the state's Department of Fair Employment and Housing to file a complaint against them.
Under the Davis-Stirling Act, unless the governing documents provide for a system of monetary fines, the fines are illegal and do not have to be paid. Provisions for a hearing on and any assessing of fines against titleholders must follow requirements detailed in Civil Code section 1363(h). Missing any steps, including circulation of a hearing notice to all owners, invalidates the fine.
The late Stephen Glassman, an attorney specializing in corporate and business law, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.