DUE PROCESS HEARING COMMITTEE

When an HOA seeks to enforce the provisions of its CCRs [Declaration] to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious.

Associations must have reasonable (1) written rules and procedures, and (2) enforcement policies that equally apply to all owners in the community to enforce a rule. Most importantly, the association’s rules must be consistent with applicable laws, and it must follow those rules when enforcing restrictions.

Although a particular infraction may be glaringly obvious, all violation procedures must follow a consistent process. In the same way a parking ticket can either be paid or appealed (even if the car is parked directly next to the fire hydrant), a homeowner must be permitted to challenge the notice of violation and the resulting fine.

The essence of procedural due process is notice and the right to be heard. The notice must be reasonably calculated to apprise a party of the pendency of proceedings affecting him or his property, and must afford an opportunity to present his objections before a competent tribunal. Therefore, at a minimum, the association must provide the accused owner with the following standards of fair due process:

• Adequate Notice of Violation,
• An opportunity to be heard,
• Reasonable opportunity to defend against the allegation,
• An appeal, if provided in the association’s documents.

The following are typical examples of notice:

“You have the right to appeal this violation by making, within ten days of the date of this notice, a written request for a hearing before the due process committee”.

“A hearing has been scheduled on November 17, 2021, during which you may appeal this violation – please advise whether you intend and are able to appear”.

Hearing. The Board has delegated this responsibility to a due process hearing committee made up of other members. Decisions of the committee may be appealed to the Board.

The hearing shall be conducted in closed session by the committee and shall afford the Respondent an opportunity to present a defense against the alleged violation of the regulations. The following procedure shall apply to the hearing:

1. Proof of service of the Notice of Hearing shall be placed in the minutes of the meeting. Such proof shall be deemed adequate if the date and manner of delivery is entered by the party who caused service of such notice to be made on the Respondent. Services of Notice of Hearing shall be deemed by the Respondent if the Respondent appears at the meeting for any purpose other than to contest the proper service of the Notice of Hearing. The minutes of the meeting shall contain a written statement of the results of the hearing and the sanction, if any, imposed.
2. Prior to the hearing, the Respondent may challenge any member of the committee for bias or other good cause shown as to why the member should not take part in the hearing. Any such challenge shall be made not less than 7 days prior to the hearing. In the event of such a challenge, the committee shall meet prior to the hearing to determine the sufficiency of the challenge. If the committee sustains the challenge, the chair may at that time excuse that member from the formal procedure. All decisions of the committee in this regard shall be final.
3. At the commencement of the hearing, the hearing chair or his/her alternate shall preside. At the beginning of the hearing, the hearing chair shall explain the rules and procedures by which the hearing is to be conducted, so long as the rights of the Respondent are protected. Generally, any relevant evidence shall be admitted. If there is a dispute within the committee about evidence, it shall be voted on.
4. The Respondent shall have the right to do the following, but may waive any or all of these rights:
   1. make an opening statement;
   2. introduce evidence, testimony, and witnesses;
   3. cross-examine opposing witnesses by directing questions to the hearing officer;
   4. rebut evidence and testimony; and
   5. make a closing statement.
5. After the testimony and evidence has been presented, the committee shall vote upon the matter. Agreement of a majority of those voting shall be required for a decision. The decision shall be made promptly after the hearing. The committee shall prepare written findings of fact within 10 days after the hearing. A copy of the findings and decision shall be mailed by regular mail to the Respondent. A summary of the decision, excluding names of persons involved and addressing only the issue and the decision shall be included in the meeting minutes.

“Reasonableness” is the key; any consequences should be commensurate with the violation. Further, exceptions can be made in exceptional circumstances, do not become fixated by the fear of “setting a precedent.” All of us want to be treated fairly, and with respect.

Central Square Villas
Board of Managers
November 2021