At some point, most homeowners who live in an HOA face some kind of dispute with either a neighbor or with the HOA itself. Some of those disputes can be quickly resolved via a conversation. Other disputes require more firepower. In the event that a homeowner needs that additional ammunition, there are a couple of different ways to seek redress. Some of those options are better than others.
Most attorneys suggest sending a traditional cease and desist or demand letter. That begins an informal negotiation. But in an HOA dispute, a cease and desist letter has no procedural teeth. The HOA or neighbor can ignore the letter without any consequences. Worse, they may appear to engage in negotiations for months, and then ultimately refuse to do anything. Then you’re back at square one. So, while a cease and desist may be effective for traditional disputes, it is typically an ill-advised course of action in a heated HOA dispute. Instead, you should utilize some of the unique tools that the Davis-Stirling Act offers.
First on that list is informal dispute resolution (or “IDR”). Civil Code section 5910(a) requires that associations provide a “fair, reasonable, expeditious procedure” for resolving disputes between the HOA and its members. If the HOA does not a specific procedure articulated in its Governing Documents, Civil Code section 5915 establishes the following default procedure:
- The party may request the other party to meet and confer in an effort to resolve the dispute. The request shall be in writing.
- A member of an association may refuse a request to meet and confer. The association shall not refuse a request to meet and confer.
- The board shall designate a director to meet and confer.
- The parties shall meet promptly at a mutually convenient time and place, explain their positions to each other, and confer in good faith in an effort to resolve the dispute. The parties may be assisted by an attorney or another person at their own cost when conferring.
- A resolution of the dispute agreed to by the parties shall be memorialized in writing and signed by the parties, including the board designee on behalf of the association.
Needless to say, this offers some clear benefits to simply sending a cease and desist or demand letter. First, an HOA “shall not refuse a request to meet and confer.” This means that the HOA has to come to the table. Further, “[a] written agreement reached under this section binds the parties and is judicially enforceable if it is signed by both parties” and certain conditions are satisfied.
Additionally, a recent development in the law requires HOAs to participate in IDR in good faith if a member has requested IDR. (Civ. Code § 5910.1). Now, while this procedure is typically more effective than a cease and desist letter, it is not always the best course of action.
If your HOA is entirely unreasonable, or if you are looking to bring out the big guns, it may be best to explore alternative dispute resolution (or “ADR”). Civil Code section 5930(a) states that neither associations nor their members may file an “enforcement action” in superior court unless the parties have submitted their dispute to ADR. ADR takes two forms in California: mediation and arbitration. Arbitration is a forum in which an arbitrator acts as a finder of facts and law and ultimately makes a decision; in other words, private court. Mediation, on the other hand, is not a trial or hearing, there are no “fact finders,” and no judge, jury, or arbitrator who orders the parties to do something. Instead, it is a formal settlement conference in which the parties are able to share their story, and attempt to resolve the dispute on mutually agreeable terms. But that isn’t the sole reason it is so important. It is also when your attorney’s fees start tracking for the purposes of recovering them from the losing party. (Grossman v. Park Fort Washington Assn. (2012) 212 Cal.App.4th 1128). Participating in ADR gives you the right to recover any attorney’s fees you spend attacking your recalcitrant HOA. Like IDR, there are also procedural requirements that must be fulfilled, that come with consequences if they are not.
Finally, you can file a lawsuit against your HOA or nightmare neighbor. The process of prosecuting or defending a lawsuit is called litigation, and litigation is what you see on T.V. and in movies. It involves depositions, written discovery, motions, oral argument, and ultimately culminates in trial in front of a judge and/or jury. In other words, it is the nuclear option. While most HOA cases should involve either IDR or ADR prior to litigation, there is no one-size fits all approach to a legal dispute.
If you need help evaluating your options, the attorneys at Lubin Caplin + Pham LLP are here to help you every step of the way. Our seasoned litigators will work tirelessly to enforce or defend your rights and choose the best course of action given the unique facts and circumstances of your particular dispute.
