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socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 36944
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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Can an HOA cite a renter for a code violation without due process?

Customer Question

Can an HOA cite a renter for a code violation without due process? I rent a condo in Palm Desert, CA and have been cited 9 times since moving here 4 years ago -- beginning with the day I moved it for having a moving truck in my driveway after 5 p.m. Other citations were for having a garbage can out a day late, and I have twice been cited for running a stop sign when I have **never** received such a citation in 50 years of driving.

I do not directly receive the citations -- the condo owner, who is considered responsible for the renter -- does. Also, I cannot attend the "hearing" -- only the condo owner (who lives 200 miles away) can. Needless to say, the condo owner has been found 100% guilty and the fines range from $50 to $75. If I don't pay the fine, the HOA attaches a bill to the property when it goes into escrow.

I am not the only resident who is abused in this way. I know of a property manager/real estate agent who manages rentals here for distant owners and has a drawer full of citations issued to renters by this HOA.
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  socrateaser replied 2 years ago.

What you are describing are not code violations. A code violation is a violation of a municipal ordinance associated with real property. You are being cited for violations of the association Covenants, Conditions and Restrictions (CC&Rs).

Under California appellate case law precedent, an association may levy fines and penalties for violations of the CC&Rs, or other reasonable rules of the association. See, Liebler v. Point Loma Tennis Club, (1995) 40 Cal.App.4th 1600. However, the fines/penalties may not be assessed, except after due process is accorded the alleged violator.

In my opinion, since you are the actual alleged violator, the failure to permit you to appear and defend the violation violates due process, which includes:

(i) giving the accused notice of the alleged violation;
(ii) providing a reasonable opportunity for the person to defend themselves;
(iii) knowing the identity of the accuser; and
(iv) giving the accused an opportunity to examine and refute the evidence. (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; Carson v. Glass Bottle Blowers (1951) 37 Cal.2d 134, 144.

However, unless your landlord takes the matter to arbitration or court, to challenge the imposition of the fines/penalties, he/she will be liable for those fines/penalties.

You, as the tenant, are not obligated to the association, however, you can challenge the landlord's imposition of the fines against you, under the theory that there is no proof that they have been committed by you, and that it is a breach of the implied covenant of good faith in your rental agreement to refuse to permit you the opportunity to challenge the fines, while simultaneously imposing them against your contract. For this, you would have to sue the landlord in court -- or refuse to pay, and then defend any unlawful detainer/eviction action based upon the fines being unsupported by any evidence.

Like it our not, this means that if you want to avoid the penalties/fines, then you will have to start pushing back against the landlord, who in turn will either have to authorize you to defend against them with the association, or sue you (or visa versa).

Please let me know if I can be of further assistance.
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 36944
Experience: Attorney and Real Estate broker -- Retired (mostly)
socrateaser and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks very much for your clear response. Lawsuits aren't my thing -- besides, the landlords and I get along well -- though I would love to see a class action suit brought against this practice. I have written the local newspaper in the hopes that this issue can be publicized in some way. I also am building a house and expect to be in it by September, but I hate to see such exploitation of those who can't defend themselves.
Expert:  socrateaser replied 2 years ago.
I competely understand your concern. Many HOAs are nothing more than minature totalitarian dictatorships. But, there's little to be done, unless the landlord is prepared to sue the association.

Best of luck with your new home.

Note: No need to reply again. I'm just using this memo to let you know that I've read your reply.

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