This blog post focuses on addressing one major source of discontent in community associations: due process hearings for alleged violations of the community’s governing documents or condominium instruments.

Homeowners want fairness

Complaints about HOA due process hearings can be split into at least three different categories:

• Before the hearing, the Board
  • did not attempt to settle reasonably;
  • did not explain variance procedure; or
  • did not properly send notice of violation or opportunity to cure.
• During the hearing,
  • The Board was disorganized;
  • A Board member was rude;
  • The Board was not prepared for the hearing;
  • The Board did not give owner time to gather/present case; or
  • The Board did not view property/alleged violation.
• After the hearing,
  • The Board did not give valid reasons for decision; or
  • The penalty was unreasonable.

Statutory Requirements for Due Process

The Property Owners’ Association Act and the Condominium Act each set out requirements for due process hearings. Prior to charges or suspension, an owner must be given a reasonable opportunity to correct the alleged violation after written notice. If the violation remains uncorrected, an owner must be given an opportunity to be heard and an opportunity to be represented by counsel. The Board must provide a notice of hearing, sent 14 days prior to hearing, either by hand-delivery or mailed by registered or certified mail, return receipt requested. Following the hearing, the Board must provide notice of its result within 7 days after the hearing, delivered in the same manner.

Best Practices for Conducting HOA Due Process Hearings

It is important for HOA boards to “keep it simple” in order to comply with state statutes and the community’s governing documents, but also to preserve a sense of community fairness, objectivity, and consistency. All owners should be subject to at least the same “process” (although not necessarily the same outcome). To assist condominium boards and homeowners’ association boards, we have developed a simple checklist to follow:

• Appoint one person to chair the hearing
• “Script, script, and script” – prepare remarks and a clear statement of the alleged violation (to prevent rambling or editorializing)
• Conduct the hearing in executive session
• Keep the hearing informal, not court-like
• Act professionally and cordially at all times
• Listen to the owner, do not interrupt
• Do not engage in a debate or argument with the owner
• Talk with, not down to the owner
• Only ask questions if necessary (at the end)
• If the hearing becomes heated, end the hearing before it escalates
• After the hearing concludes, the Board will discuss the issue in executive session, and then vote in an open session.

Conclusion

“Reasonableness” is the key for the Board; any consequences should be commensurate with the violation. Further, a board may make exceptions in exceptional circumstances, do not become fixated by the fear of “setting a precedent.” Your HOA lawyer should be able to provide guidance on that issue.

All of us want to be treated fairly, and with respect. Following these simple guidelines may help your Board avoid a highly charged and emotional hearing, while helping to establish a sense of community fairness and reasonableness.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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