HOAleader.com - Tip of the Week - September 13, 2013
Published: Fri, 09/13/13
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California Court Reinforces Law Requiring HOAs to Give Dissidents
Equal Time
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In this week's tip, we discuss a recent California appellate
court ruling that offers lessons for HOAs throughout the country.
The backdrop for the Wittenberg case is California Civil Code
section 1363.03. It says that if an association permits any
candidate or member to advocate a point of view using association
media, the association must give members with opposing viewpoints
equal access to the same media. The same is true when it comes to
free access to common areas for purposes reasonably related to an
election.
The Wittenberg case has a long history, but it's important to
understand each of the places the board could have opted for a
different outcome.
The dispute began in October 2010, when the plaintiffs sued
Beachwalk for allegedly violating its own governing documents by
removing a pool without proper owner approval. Under the
association's governing documents, the board can't make
alterations, additions, or improvements of the common areas
costing more than $1,000 without two-thirds' approval of voting
owners.
Rather than seeking the proper owner approval, according to the
opinion, the board sought to amend its bylaws to increase the
dollar threshold that required a vote and reduce the number of
votes needed to approve expenditures. In November 2010, it sent
a ballot and cover letter to owners noticing an election in
December 2010. The cover letter was drafted by board members who
supported the amendment and encouraged owners to approve it. It
called the existing provision "over broad, ambiguous, and open
to interpretation on many levels." The letter added that the
provision would foster additional disputes over what constituted
an alteration or improvement and predicted gridlock and
skyrocketing election and legal expenses to get two-thirds of
owners to vote to approve projects subject to the provision.
The letter included the association's proposed replacement
language and then heaped even more praise on the association's
recommended revision, calling it "flexible," "reasonable," and
"workable."
But the board didn't just encourage owners to approve the
amendment. It discouraged and interfered with opposition. The
board specifically decided not to include any material in
opposition to the amendment in the notice and cover letter.
Later, a home owner asked to use the association's clubhouse for
free to hold an opposition meeting. The board declined, demanding
the standard rental fee.
It took three elections, but the vote finally passed with enough
support that the HOA could petition a court to have the amendment
passed-even though the amendment never passed under the HOA's
governing documents. When the HOA petitioned to have the
amendment adopted, the dissenters balked, filing a complaint
arguing they were improperly silenced.
Find out more about the dissenters' requests for equal time and
whether the court agreed that the HOA improperly shut down
dissent--and what this means for HOAs outside California--in our
new article: http://www.hoaleader.com/members/896.cfm
Best regards,
Matt Humphrey
President
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