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HOA Litigation: A How To Guide

Real Estate Law Litigation by Peter N. Brewer, Esq.

Recently, there has been a rise in disputes between homeowners and their Homeowners’ Associations (“HOAs”).  While many HOAs are willing to work with their members, others prove to be less accommodating.  In these cases, the law has provided specific procedures to resolve disputes between HOAs and homeowners.

As a matter of law, HOAs are required to have an internal dispute resolution procedure which a homeowner can initiate to resolve disputes that have arisen.  This basically means that in the HOA handbook that homeowners receive when they purchase their house, there should be a section on managing disputes with the HOA.  If the HOA has established a dispute resolution procedure, then the homeowner must utilize it before filing the owner files a lawsuit, unless exceptions apply.  It is important to note that if the homeowner asks the HOA to participate under this dispute resolution process, the HOA must comply.  However, if the HOA requests the homeowner to participate, under California Civil Code section 1363.830(d), the homeowner can choose not to attend.

If the HOA has not established internal dispute resolution procedures, the homeowner can request to meet and confer in writing.  This means that the homeowner writes to the HOA and sets a time for the homeowner and the HOA to discuss the problems that have arisen.  As with the internal dispute resolution procedure, if the member requests to meet and confer, the HOA must participate.  Neither procedure is mandatory if requested by the HOA.

If either of these two processes fails, then the parties must attempt to seek professional assistance by participating in alternative dispute resolution (“ADR”) and serve a Request for Resolution, unless exceptions apply under California Civil Code §1369.520.  ADR generally takes two forms, arbitration and mediation.  Arbitration is similar to a trial, except that a third party listens to both sides instead of a judge.  Arbitration can be binding or non-binding depending on the agreement of the parties.  Mediation, on the other hand, is similar to a counseling session where both parties attempt to resolve the problem through discussion and a facilitator.  Litigation can only be initiated after the ADR process is unsuccessful or one party refuses to participate in ADR.

In summary, California law provides that in most cases a home or condo owner must attempt to resolve matters with the HOA internally.  After failing there, the parties should attempt to resolve the matter with professional assistance.  If that is unsuccessful, then the parties may take the matter to court.

Practice Pointer – The cheapest way to change a HOA is to participate in it.  HOAs are generally eager to find members who are willing to give their time to help the HOA.  If there are changes that the homeowner would like to see, be proactive and attempt to change the HOA internally.

If you have any questions about getting your HOA to work with you, please contact Brewer Offord & Pedersen LLP at (650) 327-2900 and we can assist you in evaluating the situation and providing you with the best strategy on how to proceed.

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