Confidential or Not? HOA Owner Who Reports Violation Wants to Remain Anonymous
HOAleader.com - Tip of the Week - December 8,
2023
An HOAleader.com reader asks: "I have a homeowner who's definitely violating a rule; however, he wants the identity of the neighbor accusing him. Does he have a right to that? I realize the rule is the rule and the ID doesn't make a
difference, but I don't want to miss something the HOA is required to do."
What timing! We recently covered this at the November HOAleader.com webinar: Enforcement of Your HOA Rules: How to Create Enforceable Rules, Effective Fines, and a
Fair Violation Process.
In this week's tip, we explain how this is handled in California, and in our full article, we give a fuller primer of how it's handled in several other states. But because there are nuances, be sure to talk to a
community association lawyer in your state before creating your own policies and processes.
California—You're not required to disclose the name of a complainant, but it may hurt you later in enforcement if you don't have
the ability to do that, says David C. Swedelson, the principal at Swedelson & Gottlieb, a law firm that represents associations through California.
"If the board can't independently verify the violation, they need to have the homeowner
reporting it to be a witness at the hearing," he explains. "It's a hearing, and I've been a student of hearings for as long as I've been doing this. The board has to hold a hearing and give the homeowner due process, meaning a right to be heard.
"We don't generally characterize a hearing as one where an owner or attorney gets to cross-examine witnesses," says Swedelson. "But we don't want to give the alleged violator the name of the witness, for example, if they're only going to use it to harass that witness.
"So, the board doesn't have to disclose that name," adds Swedelson. "But if the board can't independently verify the violation, and the complaining owner won't agree to be a witness, the board has to consider whether they have enough evidence to justify imposing a fine. That means the witness can remain anonymous, but they also need to realize that, if they don't come forward, the board may not be able to do anything about their
complaint."