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TexLaw
TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Our HOA Board has instituted a new restriction on homeowners making input or asking questi

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Our HOA Board has instituted a new restriction on homeowners making input or asking questions at its regular monthly Board Meetings. Even though a myriad of subjects are discussed and acted upon by the Board in the course of each meeting, the only voice the homeowners have is a 3-minute question or statement in the "homeowner forum" portion of the meeting at the beginning of each meeting (and the homeowner must register on a sheet before the meeting begins stating subject to be allowed to have 3 minutes). Even then, if the homeowner poses a question to the Board, the Board does not respond at this meeting but puts the question on the agenda for their "executive session" at the end of the open meeting which they hold in private. We homeowners never hear the resolution or any discussion that leads up to the resolution. In essence, they are freezing us out of our own HOA business. What can we do? Is they any law that protects us against these Board actions?
Hi,

Thank you for your question. Unfortunately, the law in California which governs HOAs allows the HOAs to establish by-laws that control most governance issues such as this.

The governing HOAs is the Davis-Sterling Act (http://www.davis-stirling.com/MainIndex/Statutes/DavisStirlingActRewrite/tabid/3607/Default.aspx#axzz27s4M2DGr).

Section 4365 of the Act allows members of an association owning 5 percent or more to call a special vote to reverse a rule change. This is done by gathering a petition of at least 5% of the owners (owning separate interests) which states the rule on which you are seeking a reversal and send in the request to ask for a special vote under Section 4365 of the Act. Then you need to set the date for the special vote and obtain the majority support of your other HOA members to come and vote and overturn the rule.

Please let me know if you have other questions regarding this matter.

Best regards,
ZDN

Customer: replied 4 years ago.

Thank you for your answer. I have a followup question. The verbally stated rule that was instituted last month on restricting homeowner speech is not in writing, not in the CC&R's. The Board just announced the change at the September meeting and instituted it last night. So, under Section 4365 that you stated above, are you saying we can get 5% petition, have a special HOA meeting and ask for a vote to rescind the restriction on homeowner input? This 720 member HOA has been having Board Meeting monthly for 42 years under our current CC&R's without ever restricting homeowner voices in this manner. Help me understand.

Customer: replied 4 years ago.

Thank you for your answer. I have a followup question. The verbally stated rule that was instituted last month on restricting homeowner speech is not in writing, not in the CC&R's. The Board just announced the change at the September meeting and instituted it last night. So, under Section 4365 that you stated above, are you saying we can get 5% petition, have a special HOA meeting and ask for a vote to rescind the restriction on homeowner input? This 720 member HOA has been having Board Meeting monthly for 42 years under our current CC&R's without ever restricting homeowner voices in this manner. Help me understand.

The rule that has been instituted is a rule of order. This is within the power of the board, as they have the ability to control meetings. However, the legal procedure through which you have to overturn their "rule of order" is to mount the 5% petition attack. Even though it is not a written rule, it is a rule nonetheless, and the only way to force the board to change is through the petition.

Best Regards,
ZDN
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Customer: replied 4 years ago.

Thank you for your answers to my question. I am disappointed that there is no easier way to address the situation with the Board, but I accept that it is what it is. I am satisfied that your assistance is worthy of the $40.00 charge but will not be adding any tip. Seems inappropriate to me to request a tip for legal assistance.


 


Thank you.

Thanks,
ZDN