Legal Right to Dispute Resolution (Internal Dispute Resolution – IDR, A “Meet and Confer” Procedure)
If a homeowner has an issue or dispute with their association and it hasn’t been resolved, the homeowner can request Internal Dispute Resolution (IDR). When a homeowner requests IDR, the association cannot refuse. Often this procedure is referred to as “Meet and Confer”. The association is required to provide a “fair, reasonable, and expeditious procedure for resolving a dispute” between the association and a member. This is reflective under the association’s governing documents or the Davis-Stirling Act (Civ. Code §5905 & §5910). The purpose of IDR is to provide a non-judicial forum to resolve disputes between a member and the association that will not result in a fee or a charge to the member.
Under Civil Code § 5910, Minimum Requirements for Internal Dispute Resolution
A fair, reasonable, and expeditious dispute resolution procedure shall, at a minimum, satisfy all of the following requirements: a) The procedure may be invoked by either party to the dispute. A request invoking the procedure shall be in writing; (b) The procedure shall provide for prompt deadlines. The procedure shall state the maximum time for the association to act on a request invoking the procedure;
(c) If the procedure is invoked by a member, the association shall participate in the procedure;
(d) If the procedure is invoked by the association, the member may elect not to participate in the procedure. If the member participates but the dispute is resolved other than by agreement of the member, the member shall have a right of appeal to the board;
(e) A written resolution, signed by both parties, of a dispute pursuant to the procedure that is not in conflict with the law or the governing documents binds the association and is judicially enforceable. A written agreement, signed by both parties, reached pursuant to the procedure that is not in conflict with the law or the governing documents binds the parties and is judicially enforceable;
(f) The procedure shall provide a means by which the member and the association may explain their positions. The member and association may be assisted by an attorney or another person in explaining their positions at their own cost;
(g) A member of the association shall not be charged a fee to participate in the process.
Other Facts About IDR
- The Association can’t drag its feet and delay IDR. The procedure shall provide for prompt deadlines.
- Meet at a mutually convenient time and place.
- Both the homeowner and association should act in good faith to resolve the dispute.
- If a member requests IDR, the association must participate.
- If the association requests IDR, the member may choose not to participate.
- The board of directors shall designate a director to meet and confer with the homeowner.
- If a resolution is agreed upon by the parties must be memorialized in writing and signed by the parties, including the board designee, on behalf of the association.
- Attorney or Other Person Allowed. At IDR, the homeowner and association may be assisted by an attorney or another person in explaining their positions at their own cost.
- The association may not charge members a fee to participate in IDR.
- Associations must annually notify homeowners of IDR and ADR dispute resolution procedures.
ADR, IDR, Litigation Comparison Chart
| Internal Dispute Resolution (IDR) | Alternative Dispute Resolution (ADR) | Litigation | ||
| Mediation | Arbitration | |||
| Structure | Informal | Informal | Less informal | Formal |
| Attorneys | Attorneys are generally not involved. | Attorneys are often involved. | Attorneys are usually involved, and attorneys’ fees are allowed. | Parties can represent themselves in court but normally hire lawyers. Attorney’s fees are allowed. |
| Time | IDR is usually held within 30 days. | Mediation within ~90 days. | Arbitration should occur within 90 days, but can take much longer. | The case should go to trial within 12 to 24 months, but can take up to five years, depending on the court’s calendar and the parties’ vigorous litigation. |
| Cost | No cost. | It depends on the mediator (~$200-$500 per hour) and the length of the mediation. Each side pays half the cost. | It depends on the arbitrator (~$200-$500 per hour), the contentiousness of the parties, and the length of the arbitration. Fees and costs can range from $10,000 to $40,000 or more per side. | It depends on the parties’ aggressiveness, the lawyers’ hourly rates, how soon it gets to trial, and whether it is a jury or bench trial. Fees and costs can range from $15,000 to $600,000 or more per side. |
| Misc. | HOA is required to participate if requested by the owner, but the owner is not required to participate if requested by the association. | The dispute may escalate to arbitration or litigation if pre-litigation mediation is unsuccessful. | Limited right of appeal. The prevailing party may be entitled to attorneys’ fees and costs. | An offer of ADR may be required before proceeding. |
Right to Access HOA Documents
Homeowners have the right to access certain HOA documents, including governing documents (CC&Rs – Covenants, Conditions, and Restrictions), bylaws, rules and regulations, financial statements, meeting minutes, and accounting records. Members can inspect and copy the association’s books and records with limitations. Associations need only produce records for the current fiscal year and two previous fiscal years. (Civ. Code § 5210(a))
Associations must produce records within the following time frames: General Meeting Minutes shall be made available to members within 30 days of the meeting and distributed upon request. (Civ. Code § 4950) All minutes of previous membership and board meetings (other than executive sessions) must be produced within 30 days following the association’s receipt of the request. (Civ. Code § 5210(b)(4))
Failure of the HOA to respond to request and and produce requested records both allows and subjects the Association to litigation in the form of a small claims action to force the HOA to produce the records requested and subjects the HOA to a statutory fine of $5000 per stated request.
Financial Records & Governing Documents: Any financial record available under Civil Code § 5300 or governing documents Civil Code § 4525 within the following time frames:
- Current Fiscal Year: Records for the current fiscal year within 10 business days of receipt of the request (Civ. Code § 5210(b)(1));
- Prior Fiscal Years: Records for the previous two fiscal years, within 30 calendar days of receipt of the request (Civ. Code § 5210(b)(2));
Membership List: Within the time frame specified in Corporations Code § 8330, i.e., 5 business days. (Civ. Code § 5210(b)(6))
Associations can charge direct and actual costs of copying and mailing records required to be provided pursuant to Civil Code § 5200. (Civ. Code § 5205(f)).
Right to Receive Financial Disclosures
Homeowners have the right to receive financial disclosures, including annual budgets, financial statements, and reserve study reports. These documents help homeowners understand the financial health of the HOA and how their assessments are being used. The following HOA financial documents may be requested:
- Financial Reports
- Annual Budget Report
- Reserves Summary
- Vender Contracts
- Board Meeting Agendas and Minutes
- HOA Membership Lists
- HOA Tax Returns
- Governing Documents
- HOA Rule Changes or Amendments
- Plans for Capital Improvement Projects
Right of HOA Homeowners to Electronic Delivery of General Notices Including Agendas
How do homebound, disabled, and absentee homeowners get access to HOA general notices including agendas? In many HOA communities, a notice may be placed in one designated location. Under California Civil Codes 4045, if “a member requests general notices by individual delivery, all general notices to that member shall be delivered pursuant to Civil Code 4040” which “requires that an association deliver a document by ‘individual delivery’ or ‘individual notice’, the document shall be delivered by one of the following methods: email, facsimile, or other electronic means, if the recipient has consented, in writing or by email, to that method of deliver
Right to Enforce Governing Documents
Homeowners have the right to enforce the provisions of the governing documents against other homeowners or the HOA itself. This includes the right to take legal action, if necessary, to enforce the CC&Rs or resolve disputes.
Homeowner’s right to disciplinary hearings
A homeowner has the right to a hearing before the your HOA takes disciplinary action. A hearing must be held first before the HOA imposes fines or suspension of privileges. The HOA board must send a written notice ahead of the hearing via first class mail. Homeowners also have the right to a fair hearing even if they clearly violated the association’s rules.
Homeowner’s right to display the U.S. Flag
Your HOA cannot prevent homeowners from displaying the American flag – even if they cite architectural control reasons. Homeowners are protected by the Freedom to Display the American Flag Act of 2005 and this supersedes any rule that you may have in your governing documents. However, HOAs can impose restrictions such as the location and height of the flagpole. If installing a flagpole on your property, homeowners may need to file a request prior to installation.
Homeowners with disabilities right to reasonable accommodations
According to the Fair Housing Act, homeowners with disabilities have a right to request reasonable accommodations. This can be in the form of a ramp so that homeowners who use wheelchairs can gain access to communal areas. Homeowners can also request for their service animal to accompany them even in pet-restricted areas within the community.
HOA boards have to meet these accommodations as long as there are no other viable alternatives, and as long as these do not pose any risk to the other homeowners. In certain situations, such as in the case of service animals. HOA boards can request homeowners for documentation to verify.
Additionally, Homeowners have certain rights and obligations under CA Civil Code 4515
You can read it HERE.
It’s important to note that the specific rights and obligations of homeowners in a homeowners association can vary depending on the provisions in the CC&Rs and other governing documents of the particular HOA. Therefore, it is advisable to review the specific governing documents of your HOA to understand the rights and responsibilities applicable to your situation.