Neighbor disputes can be difficult. An experienced trial lawyer can help.
From a board’s perspective, the first question asked should be what obligation does the board have to get involved? In other words, should the board expand HOA resources on “private” litigation? Sometimes homeowners association boards get pulled into disagreements between homeowners when one homeowner claims another homeowner violated a covenant, conditions and restrictions (CC&R). It is hard to justify the attorney fees and board time, especially when the disagreement does not affect the community as a whole. What to do?
Most sets of governing documents give the board discretion on whether to take legal action for a potential violation, as, most HOA board documents mimic the discretion that is written into California Civil Code Section 1354 (effective through Jan. 1, 2014, this section will be newly relabeled as California Civil Code Section 5975 (effective after Jan. 1, 2014. Note that the texts of this section allow the board and/or “any owner” discretion to enforce rules and restrictions. If your governing documents do not give this kind of flexibility, they are in bad need of an update and meanwhile, you will need a lawyer to untangle the problem.
There are four routes a board or individual can go depending on (1) the nature of the neighbor dispute, (2) how prone to litigation the parties are and (3) to what degree the issue affects the homeowners or condominium association at large. A lawyer will help with this decision-making process. Regardless of what route is taken, it is important for the board to behave in an unbiased manner, investigate, listen and document both sides of the issue before making a decision..
Four Routes to Resolution
1. Mediation. The California Civil Code gives direction to homeowners associations, condominium boards or an aggrieved party to seek a solution other than litigation. The civil code directs boards to provide a “fair, reasonable, and expeditious procedure for resolving a dispute within the scope of this article.” ARTICLE 5. Dispute Resolution Procedure 1363.810 – 1363.850, recodified as ARTICLE 2. Internal Dispute Resolution 5900 – 5920, effective Jan. 1, 2014. This code section gives very specific direction on what to do and how to do it but there is a catch. This form of mediation is voluntary and the disputing parties must avail themselves to it. Sometimes things have gone so far that no one wants to participate, and this is a problem. A board can encourage mediation, but cannot force it..
2. ADR — Alternative dispute resolution. California law “requires” the parties to participate in an alternative dispute resolution program (ADR for short). Neighbors and boards pulled into a dispute are encouraged to view our page on ADR. The voluntary “mediation” program mentioned above is not a substitute for the alternative dispute resolution program that is a prerequisite to pursuing litigation in court. ARTICLE 2. Alternative Dispute Resolution – 1369.510 – 1369.590, which will be recodified effective Jan. 1, 2014, as ARTICLE 3. Alternative Dispute Resolution Prerequisite to Civil Action 5925 – 5965.
3. Do nothing. In some circumstances after listening to both parties, thoroughly investigating the complaints and considering the issues, a board can decide to do nothing about it and let the neighbors sort it out on their own. The California courts have created a legal term of art called “judicial deference,” which basically states that judges will respect and have a tendency to support board decisions that are based on complete investigations and proper consideration. Lamden v. La Jolla Shores Clubdominium Homeowners Assn., 21 Cal. 4th 249 (Cal. 1999). If you are a homeowners association or condominium association considering this solution, it is best to consult a lawyer as this “judicial deference” has exceptions and subtle elements that are easily overlooked.
4. Arbitration. In binding arbitration, litigants agree to have an agreed-upon arbitrator resolve their neighborly disputes in private trials. This method is nearly always more efficient and cost-effective than taking a case to trial. As trial attorneys with more than 25 years of experience, we are well-suited to resolve cases as arbitrators.
5. Civil litigation. At some point, even after ADR, parties feel that their issues have not been properly heard or weighed. In such a situation, there is no other solution but to go to court with an experienced trial lawyer.
Gregory M. Garrison, APC, knows how to litigate these cases. We have a reputation for no-nonsense legal advice and representation. Above all, we get results. Call 619-798-9501 or complete our online form. Consultations are free. Choosing the wrong lawyer isn’t.