Civil Code Section 5855 sets forth procedural requirements that must be satisfied when an association’s board of directors imposes discipline (i.e., imposes a fine or suspends privileges) on a member for a violation of the association’s governing documents, or imposes a reimbursement assessment against a member for repairing damage caused to the common area as a result of the member, the member’s guest or tenant. Those procedural requirements are outlined below and may vary depending upon the terms of the association’s governing documents.
Notice of Violation & Hearing
At least ten (10) days prior to the meeting (the “hearing”) at which the board will decide to impose discipline, the board must notify the member in writing, by either personal delivery or individual delivery, pursuant to Civil Code Section 4040. (Civ. Code § 5855(a); See also “Document & Notice Delivery Methods.”) If the disciplinary measure will involve suspension of the member’s membership privileges, the notice must be provided at least fifteen (15) days in advance of the hearing. (Corp. Code § 7341(c).)
Contents of Notice – At a minimum, the notification must include:
- The date, time and place of the hearing;
- The nature of the alleged violation for which the member may be disciplined or the nature of the damage to the common area for which a reimbursement assessment may be imposed; and
- A statement that the member has a right to attend and may address the board at the hearing. (Civ. Code § 5855(b).)
Hearing Where Board Decides to Impose Discipline
The board may conduct the hearing in executive session if it so desires. (Civ. Code § 4935(a).) However, if the member requests for the hearing to be conducted in executive session, the board must honor the member’s request, and also allow for the member to attend the executive session hearing. (Civ. Code §§ 4935(b); 5855(b).) It is common practice for disciplinary hearings to be conducted in executive session even in the absence of a member’s request for the same.
Decision Must be Based Upon Findings – The decision to impose discipline should be based upon findings made by the board regarding the alleged violation for which discipline is being imposed. (Ironwood Owers Assn. IX v. Solomon (1986) 178 Cal. App. 3d 766.) Those findings are necessary to demonstrate that the board’s decision was made in good faith, was reasonable and not arbitrary or capricious. (Id.)
Notice of Decision
If the board imposes discipline or a reimbursement assessment, the board is required to, within fifteen (15) days following the action, provide the member with written notification of the board’s decision by either personal delivery or individual delivery pursuant to Civil Code Section 4040. (Civ. Code § 5855(c); See also “Document & Notice Delivery Methods.”)
- Corporations Code Section 7341. Suspension of Membership Rights.
- Civil Code Section 5865. Effect on Authority to Impose Penalties.
- Civil Code Section 5855. Disciplinary Measures; Notice of Hearing; Notice of Decision.
- Civil Code Section 5850. Schedule of Monetary Penalties (Fines).
- Civil Code Section 4935. Executive Session Meetings.
Related Case Law
- Ironwood Owners Association IX v. Solomon
(1986) 178 Cal.App.3d 766
[Architectural Control; Enforcement] A HOA must show that it has followed its own standards and procedures when taking action to enforce violations of its governing documents.