Empowering Homeowners in HOA Conflicts

Six Essential Steps to Resolve HOA Disputes: A Homeowner's Guide

Living in a homeowners association (HOA) community can offer many benefits, but it can also present unique challenges when disputes arise. At LS Carlson Law, we've spent over 17 years representing homeowners in California and Florida against problematic HOAs. Our experience has shown us that knowing how to approach these conflicts can make all the difference in achieving a favorable resolution.

In this comprehensive guide, we'll walk you through six essential steps to resolve HOA disputes effectively. Whether you're facing maintenance issues, unfair fines, or selective enforcement, these strategies will help you navigate the complex world of HOA conflicts and protect your rights as a homeowner.

Step 1: Document Everything

The foundation of any successful dispute resolution is thorough documentation. When issues first arise with your HOA, it's crucial to create a detailed record of events, communications, and any damages incurred. Here's what you should focus on:

First, establish a dedicated file or folder to keep all HOA-related documents organized. This can be a physical folder or a digital one, depending on your preference. As issues occur, make sure to document them promptly and thoroughly.

For communication-related issues, save all emails, letters, and notices you receive from the HOA. If you have verbal conversations with board members or management, follow up with an email summarizing the discussion. This creates a paper trail that can be invaluable if the dispute escalates.

In cases of property damage or maintenance issues, take clear, date-stamped photos and videos. These visual records can provide compelling evidence of the problem's extent and progression over time. If possible, capture before and after images to illustrate changes or lack of action by the HOA.

For financial disputes, keep meticulous records of all payments, fines, and related correspondence. This includes copies of checks, bank statements, and any receipts or invoices related to the dispute.

Remember, the goal is to create a comprehensive timeline of events that clearly illustrates your side of the story. This documentation will be crucial not only for your own reference but also for presenting your case to the HOA board, during informal dispute resolution, or if legal action becomes necessary.

Step 2: Understand Your Governing Documents

Your HOA's governing documents, particularly the Covenants, Conditions, and Restrictions (CC&Rs), are the rulebook for your community. Understanding these documents is crucial for navigating any dispute. Here's how to approach this step:

Obtain a current copy of your HOA's CC&Rs, bylaws, and any other relevant governing documents. If you don't already have these, request them from your HOA management or board. In many states, HOAs are required to provide these documents to homeowners upon request.

Once you have the documents, take the time to read through them carefully. Pay particular attention to sections that relate to your specific dispute. For example, if you're dealing with a maintenance issue, focus on sections that outline the HOA's responsibilities for common area upkeep.

As you review the documents, make notes of any relevant sections. Highlight or bookmark passages that support your position or clarify the HOA's obligations. This will make it easier to reference specific rules or clauses when discussing the issue with your HOA.

Keep in mind that laws governing HOAs can change, and sometimes these changes may supersede what's written in your CC&Rs. For instance, in California, recent laws regarding drought-tolerant landscaping and solar panel installation have overridden some HOA restrictions. If you suspect this might be the case in your situation, it may be worth researching recent changes in your state's HOA laws.

Understanding your governing documents serves two crucial purposes. First, it helps you determine whether the HOA is actually violating its own rules or failing to meet its obligations. Second, it allows you to articulate your position more effectively, using the HOA's own language and rules to support your case.

Step 3: Request Relevant Records

In many cases, resolving an HOA dispute requires access to association records. As a homeowner, you have the right to request certain documents from your HOA. This step can provide valuable insight into the association's decision-making process and help you build a stronger case. Here's how to approach this:

First, familiarize yourself with your state's laws regarding homeowner access to HOA records. In California, for example, the Davis-Stirling Act outlines specific records that HOAs must make available to homeowners upon request.

Common records you might want to request include:
° For financial disputes: Financial statements, budgets, and records of expenses related to your issue.
° For maintenance issues: Repair records, inspection reports, and maintenance schedules.
° For rule enforcement disputes: Records of violations and fines issued to other homeowners (to check
° for consistent enforcement).

When making your request, do so in writing. Send an email or letter to your HOA board or management company clearly stating which records you're requesting and why. Be specific about the time period you're interested in and the format you prefer (e.g., digital copies or physical documents).

If your HOA is reluctant to provide the requested records, remind them of your rights under state law. In California, for instance, associations that fail to provide records can face penalties.

Once you receive the records, review them carefully. Look for any inconsistencies or information that supports your position. These records can be crucial in demonstrating selective enforcement, financial mismanagement, or failure to maintain common areas.

Remember, the goal here is not just to gather information, but to use it strategically in resolving your dispute. The insights you gain from these records can help you articulate your case more effectively and may even reveal issues you weren't previously aware of.

Step 4: Consider Third-Party Assessment

In certain disputes, particularly those involving property damage or complex maintenance issues, it can be beneficial to bring in a neutral third party to assess the situation. This step can provide objective evidence to support your case. Here's how to approach this:

Determine whether your situation would benefit from expert assessment. This is particularly relevant for issues involving structural damage, water intrusion, or other technical problems that require specialized knowledge.

Research and select a qualified professional in the relevant field. This might be a licensed contractor, structural engineer, or another type of expert depending on your specific issue. Look for professionals with experience in HOA-related disputes if possible.

Before hiring the expert, clarify the scope of their assessment. What exactly do you need them to evaluate? Will they provide a written report? Make sure you understand what deliverables you'll receive and how you can use them in your dispute.

During the assessment, provide the expert with relevant background information, but avoid influencing their conclusions. Their objective opinion is what gives their assessment value.

Once you receive the expert's report or assessment, review it carefully. Understand not just the conclusions, but the reasoning behind them. This will help you articulate the expert's findings when presenting your case to the HOA.

Keep in mind that while expert assessments can be powerful tools, they also come with considerations:
Cost: Expert assessments can be expensive, so weigh the potential benefit against the cost.
Discovery: If your dispute escalates to legal action, be aware that the expert's report may be discoverable by the other side. Ensure that you're comfortable with all aspects of the report being potentially scrutinized.
Credibility: The expert's credentials and the quality of their assessment can significantly impact how much weight their opinion carries. Choose your expert carefully.

An expert assessment can provide valuable leverage in your dispute, offering objective evidence to support your position. It can be particularly effective in disputes where the HOA is denying the existence or extent of a problem.

Step 5: Attempt Informal Resolution

Before escalating to formal dispute resolution processes or legal action, it's often beneficial to attempt an informal resolution with your HOA. This approach can save time, money, and stress if successful. Here's how to go about it:

Start by drafting a clear, concise email or letter to your HOA board or management company. This communication should:

Clearly state the issue you're experiencing
Reference relevant sections of the CC&Rs or other governing documents
Outline the steps you've taken so far to address the problem
Propose a specific resolution or ask for a meeting to discuss the issue

When composing this communication, aim for a tone that is firm but professional. Avoid emotional language or personal attacks, even if you feel frustrated. Your goal is to present yourself as a reasonable homeowner seeking a fair solution.

If you're requesting a meeting, suggest a few possible dates and times. This shows initiative and makes it easier for the board to respond positively.

After sending your initial communication, follow up if you don't receive a response within a reasonable timeframe (usually about a week). Persistence can be key in getting the board's attention.

If you do secure a meeting with the board or management, prepare thoroughly:
° Organize your documentation chronologically
° Prepare a concise summary of the issue and your proposed resolution
° Anticipate potential questions or objections and think through your responses
° Consider bringing a neutral third party (like a neighbor) as a witness

During the meeting, remain calm and focused on the facts. Listen to the board's perspective and be open to reasonable compromises. Take notes or, if all parties agree, record the meeting.

After the meeting, send a follow-up email summarizing what was discussed and any agreements reached. This creates a record of the interaction and helps ensure everyone is on the same page.

Remember, the goal of informal resolution is to find a mutually acceptable solution without resorting to more formal (and often more adversarial) processes. Even if you don't fully resolve the issue, this step can help clarify the points of disagreement and demonstrate your good-faith effort to resolve the dispute amicably.

Step 6: Consider Legal Consultation

If informal attempts at resolution have been unsuccessful, or if your dispute involves complex legal issues, it may be time to consult with an attorney who specializes in HOA law. Here's how to approach this step:

First, research attorneys or law firms that specialize in HOA disputes. Look for professionals with specific experience representing homeowners, not HOAs. Read reviews, check their websites for relevant content, and consider their track record in cases similar to yours.

Many HOA attorneys offer initial consultations, which can be an excellent way to get professional insight into your situation. Some may offer free consultations, while others charge a fee. Consider this an investment in understanding your options.

Before your consultation, prepare a concise summary of your dispute. Include:
° A timeline of key events
° Your objectives (what outcome you're seeking)
° Copies of relevant documents (CC&Rs, correspondence with the HOA, expert reports, etc.)
° Any questions you have about your rights or potential next steps

During the consultation, be prepared to discuss:
° The details of your dispute
° Steps you've taken so far to resolve the issue
° Your desired outcome
° Any deadlines or time-sensitive aspects of your case

A good HOA attorney should be able to provide:
° An assessment of the strengths and weaknesses of your case
° An overview of your legal options and potential strategies
° An explanation of the potential costs and timeline for different approaches
° Advice on whether further attempts at informal resolution might be beneficial

After the consultation, take time to reflect on the attorney's advice. Consider how their proposed strategies align with your goals and resources. Remember, while legal action can be a powerful tool, it's not always the best first step.

If you decide to retain an attorney, make sure you understand their fee structure and what services are included. Get a clear picture of the potential costs and timeline for your case.

Remember, consulting with an attorney doesn't necessarily mean you're committing to a lawsuit. Often, a strongly worded letter from an attorney can motivate an HOA to take your concerns seriously and may lead to a resolution without further legal action.

Conclusion

Navigating HOA disputes can be challenging, but with the right approach, homeowners can effectively protect their rights and interests. By following these six steps - documenting everything, understanding your governing documents, requesting relevant records, considering third-party assessment, attempting informal resolution, and seeking legal consultation when necessary - you'll be well-equipped to handle conflicts with your HOA.

Remember, the key to successful dispute resolution often lies in being prepared, professional, and persistent. While not every dispute will have a perfect resolution, following these steps can help you achieve the best possible outcome and maintain your quality of life within your HOA community.

At LS Carlson Law, we're committed to empowering homeowners with the knowledge and resources they need to stand up to problematic HOAs. If you find yourself facing a complex HOA dispute, remember that you don't have to navigate these challenges alone. Our team of experienced HOA attorneys is here to help you protect your rights and achieve a fair resolution.

Bad HOA Podcast Episode Transcript: Six Steps to Resolve HOA Disputes

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Hello, Luke Carlson of LS Carlson Law. We are a law firm operating in California and Florida, focusing exclusively on homeowners' rights against problematic HOAs. We've been in business for 17 years. This podcast aims to bring powerful information to homeowners who are experiencing issues with their HOAs. I also have Marty on the show. He is the producer. Welcome.

Bad HOA Producer & Contributor, Marty Vasquez

Hello, thank you. Thanks for having me again. It's always a good time as we delve into the world of problematic HOAs. There's a lot of content there. It's kind of endless. It's the gift that keeps giving.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right, so today, where would you like to start, Marty? I'll let you take the lead and guide me.

Bad HOA Producer & Contributor, Marty Vasquez

Today's an interesting one. Obviously, we've done dozens of episodes at this point, and we've covered everything from dispute types, from neighbor disputes, selective enforcement, all the way down the list, as well as personality types of problematic board members, tyrants, meddlers, incompetent. But I think this one's interesting because a lot of the content within those episodes covers what to do next. We've had a dispute. You've encountered these people. Now what do you do?

So I thought it would be interesting to take a lot of that guidance, which is similar, and I think it would be really valuable for the listeners to get a snapshot of the six steps that you would take or the guidance that you would give as an HOA attorney with this much experience. What would be the steps that you would take or guide a homeowner to take should they have an HOA dispute and they want to try to resolve it as effectively as possible without having to bring on an attorney or without legal intervention?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So true self-help, a true self-help episode. Regardless of the type of dispute, there is a dispute. What does a homeowner do without a lawyer? Because in my mind, that's always a win. If you can get something resolved without a lawyer, that's a win. Certainly. Okay, let's dive in. I like that.

Bad HOA Producer & Contributor, Marty Vasquez

Okay, so the first one is document the issues, emails, pictures, videos, notes, etc.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

OK, so yeah, that's really the starting point. Because at some point in time, your life is great, you're living in an association, and it's working, and then it's not. And typically, when things turn, it's very obvious. There's some sort of damage to the property, or there's some form of harassment. So the first thing you want to do when it first originates is to document. And that might just be creating a file for emails that you're getting. Maybe they're harassing emails. Maybe there are harassing letters that you're receiving, or even there's actual physical damage to the property because of some sort of negligent activity of the association. Or drainage issues.

For example, maybe a common area pipe broke and your place is getting flooded. Video it, take pictures of it, whatever you can do to document at the outset. And as the dispute continues, the better. It's going to put you in a more powerful position once you do elect to enforce your rights, and whether that enforcement is hopefully through self-help. But if it comes to bringing on a lawyer or an advocate, you're going to be very well-prepared in that pursuit. So yes, document everything.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, that's great. Number two, read your CC&Rs. One thing I've really come to find out through doing this is nine times out of ten, it seems - correct me if I'm wrong - that it's the HOA that is breaking their own CC&Rs, and that's the reason that you can come to some sort of resolution, because it's the HOA that's actually breaking the rules, which is interesting. But read your CC&Rs, and I think to that extent, you've got to figure out what rule either they're violating or the rule that you're being accused of violating.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, so if you take it back a little bit, the CC&Rs, that's the playbook for everything. And that's where all the rights and obligations really derive from. It's similar to playing Monopoly with a child. They don't know the playbook, and they're all over the board, and it just destroys the game. And that's very similar, right? There are certain things you can and cannot do, and it's no different than an association. And so when you're having a problematic board who's just ignoring the CC&Rs, your rights are going to be derived from them. So that's really the starting point. Take a look at the CC&Rs, understand where your rights are being violated.

For example, if it is a dispute with a common area, like they're failing to maintain a common area, or there's sort of negligence around a roof or certain elements within the community, you're going to be able to find that most likely in the CC&Rs. That puts the obligation on the board in the first place to maintain, repair, et cetera. So that's a very powerful step. It's an obvious step, but you know, I speak with a lot of homeowners who don't always start there. So that's a wonderful place to really start, frame out, okay, how is this game played? And then as you push forward, you're going to be that much more powerful.

Bad HOA Producer & Contributor, Marty Vasquez

And I would assume too, as you're taking notes and documenting, you should say, okay, well, this is in my CC&Rs. This is the rule number, whatever, in section, whatever. This is the one that they're violating. And it's nice to have that documentation.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And it just gives clarity. You're clarifying what the board is supposed to be doing, what you're supposed to be doing as a homeowner. And so when you eventually do bring it to the table, you are elevated in that approach. I think it's worth mentioning, laws are changing frequently. We've seen it in Florida over the past year. There are a lot of laws that are changing. And without getting too much in the weeds, it's possible that your CC&Rs are no longer within the realms of the law, too, right?

Yeah, so I obviously am a California lawyer, so I speak to California law. But as the laws change, you know, and your CC&Rs become antiquated, that becomes an interesting balance, right? And, you know, the assessment the majority of the time is that, you know, state law is going to supersede the CC&Rs.

Bad HOA Producer & Contributor, Marty Vasquez

Sure. Federal, state, local CC&Rs.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct. Correct. And so that is somewhat of a more elevated analysis that has to happen. I wouldn't expect a homeowner to sort of jump into the different codes and keep updated with all the different changes in the law. But it is something to be mindful of. I mean, that was a big one with the drought restrictions in California. And a lot of the CC&Rs, many ran in a very inconsistent manner, of course, because they didn't change as quickly as the laws were changing during the drought periods. And so that was a huge point of friction amongst homeowners and associations. And typically, the homeowner was in the right.

Bad HOA Producer & Contributor, Marty Vasquez

And you're speaking about drought-tolerant landscapes. Correct. And your CC&Rs say you have to have X, Y, Z, but the laws are saying that you can have this.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And eventually, the homeowners won on that, even though many associations fought it tooth and nail. And if you go back to some of our previous episodes, it often was the incompetent type that was driving that. The board members who just didn't understand the difference, the balancing act between the two, enforcing the CC&Rs, notwithstanding massive changes in state law.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. I mean, we in California, I mean, we're going through a lot of changes because of the housing crisis where the ADUs...

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Oh, that's a very hot topic.

Bad HOA Producer & Contributor, Marty Vasquez

Solar is another one.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Popping up. And what homeowners need to realize is they have tremendous rights under existing law. And those laws might be inconsistent with the CC&Rs, but then it's just a form of how do you enforce, how do you prosecute to your advantage.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. So even if it's outlined in your CC&Rs, if a new law has come about, you still might have rights. So you should do your due diligence. And if you are going to bring it to an attorney or eventually get to that point, it may as well do a little bit of homework to see if there's some...

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You might as well, not to a point where you get frustrated. Of course. But to a point where if you do end up sitting down with an attorney, you are informed.

Bad HOA Producer & Contributor, Marty Vasquez

Sure.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And a large part of the attorney's job is to make sure that they're current on the law, they understand what laws might have changed that impacted your rights. But yes, any sort of homework that you can do should be embraced by a lawyer. Sure.

Bad HOA Producer & Contributor, Marty Vasquez

All right. Let's go to the next one. Okay, this is, if applicable, request records. I think this, we talked about this in our selective enforcement episodes of request records for fines that are possibly levied. If you have, if you, if they're accusing you of something and the neighbor's doing it or the other neighbor down the street is doing it and you're being targeted, possibly request records of, hey, fines that are, that are levied, make sure that you're not the only one that has been, yeah, that becomes interesting.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You know, often I recommend a homeowner do their own due diligence. Sure. And sometimes it's very easy. I mean, you know, sometimes a board won't turn over certain records and that becomes its own legal issue, which can be handled with separately. But a very easy low-hanging fruit is talk to your neighbors. You might have a neighbor who has the exact same situation that you do, and you turn out that you're the only one receiving notices. Yeah.

Bad HOA Producer & Contributor, Marty Vasquez

And then document. What's that? Go back to your document, document it. Correct. If your neighbor says X, write it down. Or even better, ask them via email or summarize it via email. And then they can go back to the neighbor and say, yes, this is true.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Precisely. And then that's where you might get into a selective enforcement issue, a preferential treatment, but knowledge is power. It's a cliche, but it is very true in this space.

Bad HOA Producer & Contributor, Marty Vasquez

I think there are a few other aspects, though, to requesting records, like negligence, um, request the repair bills or inspections or, um, common area disputes, maintenance records. Yeah. You have a right, if I'm not mistaken, don't you have a right as a homeowner to request these records? I mean, this is, I mean, you are part of this community.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You do. So, so the code allows for the homeowner to make a demand on the board for very specific records. Mm. Uh, there's a very long section on it, but yes, that is a very powerful tool to demand a board turn over certain records. And to the extent that they do not, there are certain penalties associated with that failure. So that is a very powerful weapon to sort of force the association to be transparent, which they should be in the first place. And if you look at a well-functioning association, typically you shouldn't have to jump through a bunch of legal hoops for information. Because why? There's a high level of transparency. If you really read the Davis-Sterling Act, much of the Davis-Sterling Act, or the spirit of that act, is transparency.

Bad HOA Producer & Contributor, Marty Vasquez

And the Davis-Sterling Act is in California. Correct. That's a very specific law for homeowners associations.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It's the governing... If you look at the umbrella law over associations, it's Davis-Sterling. And that law really is or embodies a spirit of transparency. Because a well-functioning board should be transparent. Why not? What do they have to hide? So the friction points start to arise where they don't want to be transparent. A bad HOA doesn't want to turn over information. Why? Because it might be incriminating. So it may be better to put up a fight. So that could be a red flag as well. I mean, if you're a homeowner and you're entitled to certain records and they're refusing or they're stonewalling you, that is typically a red flag or, you know, where there's smoke, there's fire type of situation.

Bad HOA Producer & Contributor, Marty Vasquez

What's the best way of requesting those records, in your opinion?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You typically make a demand directly to the board. Via email, phone call, in person? Email, always in writing. Always in writing. Whenever you're demanding anything from the board, and we're going to get into IDR in a moment, but anytime you make a formal demand on the board, always do it in writing. And it's interesting. I mean, you get into situations where you'll show up at a board meeting and you'll request certain information verbally. And whether it's in person or over Zoom, you'll request it. But it's never a bad idea to do a follow-up email.

Bad HOA Producer & Contributor, Marty Vasquez

That's a great tip, actually. Just to, I don't know, not enforce it, but like to make sure that there's a document. And memorialize it. That's the word I was looking for.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah. Because if it's an open session, you don't want to rely upon someone keeping minutes. Yeah. Or their clerk. Because typically they have someone, you know, the secretary who's taking notes of the meeting, but you don't want to rely upon that.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. Or worse, hearsay. No one takes notes. And it's my word versus theirs. Exactly.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So always follow up. Say, you know, it was, you can always be positive about it, say it was a very nice meeting with everyone on this date at the open meeting. Again, here is my request, please advise.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And maybe they made mention, maybe they said, hey, we'll get back to you within five business days. Yeah. Memorialize that. Anything that was meaningful, substantive, if it was verbal, fine, it can be verbal, put it in writing afterwards.

Bad HOA Producer & Contributor, Marty Vasquez

Sure, yeah, that's a pro tip right there just to make sure that you've got it documented.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Right, which goes back to the first tip, which is document everything, right?

Bad HOA Producer & Contributor, Marty Vasquez

I mean, a lot of these kind of have a through line.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, they do.

Bad HOA Producer & Contributor, Marty Vasquez

OK, if applicable, again, get third-party parties to assess damages or the determination of cause of a particular issue. So this is hot, I guess, in like a condo with, there's common areas of like a roof, and the association has neglected to maintain said roof, and it caused a bunch of problems. Or there's a neighbor that has a pipe, and it burst, and it's now causing damage in your unit. There's a lot of different issues potentially here.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah. And this goes back to documenting, but having a third party verify and produce some sort of report can be very helpful. Now, with certain situations, when you're dealing with the common area, your expert may not have permission or authority or the legal right to access certain common areas. Oh, sure. Yeah. Right. Often the expert, your expert that you hire, the roofer may not be able to go up on the roof. It's a common area, it's not permitted. But at the end of the day, to have an expert come in and at least assess damage, to say, hey, you know what? If we were to put this back to its original condition, it's going to cost $50,000, $100,000. And based upon what I can observe legally, this appears to be the source. That can be very helpful information.

Now the one thing, not to get too legal or too nuanced on this, is you have to realize when you do get a report, when an expert does come in, let's say worst case it turns into a lawsuit, it develops into full-blown litigation, that report might be discoverable. It's not protected. Meaning if that report comes back negative or not in your favor, that could also be used against you in some way.

Bad HOA Producer & Contributor, Marty Vasquez

Interesting.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So you have to be careful with expert reports because, listen, the last thing you want to do is you don't want to hire an expert who's not credentialed or who isn't a true expert, come in, misdiagnose the situation, give you a faulty report, and all of a sudden that faulty report is used against you, notwithstanding the fact that if you had a real good expert come in, they would have sided with you. Yeah. So you have to be careful with the experts. Sure.

Bad HOA Producer & Contributor, Marty Vasquez

But even so, when it gets down to if there's a lawsuit filed, they need to assess what the damages are, what you're seeking, right? And this is where the expert comes in.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And a good litigator and a good attorney will do it in such a way where any report is protected by the attorney-client privilege. Oh, interesting. And it gives you somewhat of a safe harbor to operate in. Interesting. So just a small pro tip there, but just be mindful of who you hire. Sure. And if you're going to go that path, make sure it's absolutely reputable and credentialed.

Bad HOA Producer & Contributor, Marty Vasquez

Interesting. Okay, let's move to the next one. Informal resolution. Try to do it peacefully. This is the olive branch. Yeah, this is the olive branch before you ramp it up. So you've documented, you've gone through your CC&Rs. You've got a case here. You've got your experts. You've requested records. Now it's time to try to resolve this with the board and try to do it amicably.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, it is the olive branch approach and you know, sort of going back to the Davis-Sterling Act, transparency is very important. I mean, that's the spirit, I would say, of the Davis-Sterling Act in the first place. But what's very nice about how the Davis-Sterling is engineered is there is a platform that really allows homeowners to, in a peaceful way, go to their association and air a grievance. And that's through IDR. So IDR stands for Informal Dispute Resolution.

Bad HOA Producer & Contributor, Marty Vasquez

Let's split those into two separate things, actually. Because IDR, we have actually as another point here. So, I want to talk about just going informal, just talking to them, trying to...

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So, a precursor to IDR?

Bad HOA Producer & Contributor, Marty Vasquez

A precursor to IDR. Oh, interesting. You're trying to handle this without using the big words, right?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Okay. I hear what you're saying. So, this is a little bit different. Okay. So, when you said informal, I immediately jumped into IDR posturing. But before IDR, yes, that is having a conversation with the board, not making a demand for IDR, which we'll discuss. And this might be as simple as casually bringing it up with a board member, or even going to an open meeting and having a very calm, collected conversation about an issue. That is maybe a perfect first step. Yeah. Because hopefully your board is reasonable and hopefully, reasonable enough to hear your grievances and you've documented well and you're well taken care of, so you're ready to approach them with some sort of firepower, but you can do it in a very peaceful way where they want to potentially work with you.

Bad HOA Producer & Contributor, Marty Vasquez

Because I think in a lot of these cases, particularly dealing with tyrants or meddlers, I mean, the emotions start to get real hot and real quick. And you as a homeowner, that's hard. This is your home. And you're trying to keep... It's hard not to bust out of the ceiling, right? You want to try to keep those emotions in check as much as possible to get some sort of resolution. The minute you start throwing everything at the wall and fire comes out of your ears is when it goes nuclear and it's not usually going to go anywhere.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If we're discussing a precursor approach, which is what we're doing, strategically what I would recommend is if you're going to write an email, it needs to be clinical. It needs to be objective. It needs to be, I've observed a water intrusion event. It appears to be from a common area pipe. This is impacting my property. I would like the opportunity to discuss in greater detail. Or I've received this fine. It appears to be an error. However, let's discuss. Because as soon as you take it outside of the realm of clinical or factual and you start to incorporate emotionally charged words, and rightfully so because you're upset, this is a horrible situation, and I get that part of it. But because you're dealing with humans on the other side, it may not be useful if you're trying to resolve it.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, they might go instantly, once you come at them with fire, they're going to instantly go defensive.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Circle the wagon immediately, as opposed to them seeing, oh, this seems to be an issue we can solve collaboratively, versus someone they feel under attack, and then it becomes this whole thing. So if you're going to go the precursor route, be objective, be clinical, it might be hard because you're rightfully very upset at a bad HOA, so I can empathize with that. But it might actually have a higher utility by presenting it in that way. Sure.

Bad HOA Producer & Contributor, Marty Vasquez

Now, to the extent that they ghost you, so there's a couple scenarios. You send an email, they don't do anything. Or they send you an email and say go kick rocks. Or you're not getting anywhere. I guess a good situation is they're just not listening to you. They're ghosting you. No one's taking it. You're being ignored. The next step is you can ratchet this up with some sort of legalese and some sort of legal teeth in there, which is IDR, which we started to briefly talk about. I think that would be the next step after you've been ghosted, after they're not working with you, no one's hearing you out, now it's time to maybe ratchet it up and put a little bit of legal teeth in it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah. And let me back out a little bit because what we're presenting here assumes certain things. It assumes that you haven't identified any problems necessarily within the association. It's not an association made up of five tyrants, right? I mean, if you know that the people on the board are going to stonewall you, or they're going to fight, or they're bombastic, or they're just horrible humans, these steps may not be appropriate. You may want to save yourself the headache and just jump into lawyer land. You may want to start with an advocate, Yeah. Because why subject yourself to that sort of torture if you don't have to? Sure. But in this scenario, what we're discussing is typically maybe you don't know enough about the board to draw that assessment, or from what you've observed, it seems like it's functioning, but there's a problem with the board. So this is a reasonable approach, assuming that you don't have any indication that on the other side it's a dumpster fire. Does that make sense?

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, it does. Although, would you not say if you've taken these steps, it's you're acting in good faith, and isn't that a good fact pattern to have?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It can be a very good narrative, especially if this gets in front of a mediator, for example, or a jury. You can show, hey, I did this step, this step, and that step, and I tried to work with them. I started with an olive branch. Yeah. But I guess what I'm, what I've seen is some really bad situations where clients have extended an olive branch and their hand got chopped off. So I'm trying to, you know, if it's a really bad emotionally charged situation, you may want to avoid the headache. That's all I'm saying.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And, you know, that avoidance or circumvention of these steps can always be articulated, you know, in some fashion down the road.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You can show, hey, I would have operated in good faith. I would have done these things, but for this tyrant who said verbally or who's yelled at me historically or verbally or has assaulted me, whatever the case might be.

Bad HOA Producer & Contributor, Marty Vasquez

But that's good to the extent that that happens, document it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, that's good ammunition, of course.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah, but at least if a board member is making your life living hell, start documenting it right away. Absolutely. So even if you split off and say, I'm not going to do any of these because I don't want to be subjected to this sort of abuse, at least you have a narrative, at least you've got documentation showing in a timeline, this is why I split off and I didn't act in good faith.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Precisely. So that goes back to the first tip. But yes, document. But now, assuming you think that this... So the first attempt, the precursor didn't work for whatever reason, maybe they were ignored. So...

Bad HOA Producer & Contributor, Marty Vasquez

Let's just assume they've been ghosted. You're not getting anywhere. I tried reaching out, no one's answering my emails or phone calls or whatever.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So next step would be IDR. And IDR, again, is Informal Dispute Resolution. It exists within the Davis-Sterling Act. Under California law. Under California law. And the spirit there was really to have homeowners and boards come together without lawyers. Now interestingly enough, I've seen situations where the board will bring a lawyer. I don't think necessarily in a negative way, but maybe just to help facilitate a resolution.

Bad HOA Producer & Contributor, Marty Vasquez

Oh, they're acting as the adult in the room to some extent.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Maybe. But the majority of time what happens is once you prepare a written notification, typically an email, and in the subject it's a request for informal dispute resolution, and that's sent over to the board, well-functioning boards will accept it, acknowledge it, and get something on the books. Now, the question is often, well, what if they don't? There's no real ramification legally, Meaning, there's no punitive damages or there's no sort of punishment that they would receive other than the bad faith optics of it, because now you're establishing a sort of a history of bad faith. Sure.

Bad HOA Producer & Contributor, Marty Vasquez

Is it fair? Is it a fair statement to say that they're breaking the law at that point? But there's no consequence to that? Because in the Davis-Sterling Act, it says, you know, this is what IDR is meant for. It's in the realm of the law. To the extent that they do not do that, they're not acting within the law, but there's no consequences to it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, well, typically how I would approach that in terms of a narrative is the client in good faith requested IDR, here's the request, and in bad faith, seeming bad faith, the HOA said kick rocks, or ignored it. Or ignored it. That's just bad. I mean, that is where there's smoke, there's fire. I mean, a good HOA will accept that.

Bad HOA Producer & Contributor, Marty Vasquez

Or even, I would assume, even a poorly managed HOA, even if they put that in front of their lawyer. Now, you can elevate speech. We talked a little bit about, I mean, in previous episodes, elevate the vocabulary because it shows that you mean business and you're sophisticated or educated enough to where they should probably listen. Well, yes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

A lot of our show is geared towards empowerment. And empowerment typically is driven by an elevated lexicon, right? If you can step up the vocabulary, that can be a very powerful tool against a bad association because it gets their attention. It's one thing to say to an association, you're making my life a living hell. Typically that's the case. But it is an elevated approach to say, you've violated the CC&Rs, section 212, by failing to maintain a common area, and you're in breach of contract, or at this point, this is a breach of fiduciary. You owe me a fiduciary, and by failing to do A, B, C, D, and E, you're in breach of your fiduciary obligations to me. That is a very elevated way of approaching a dispute.

Bad HOA Producer & Contributor, Marty Vasquez

And if you're bringing an IDR, and your vocabulary is elevated, and you say, I'm requesting informal dispute resolution, you know, brackets IDR within the Davis-Sterling Act, California, this. And because you're in, because in my opinion, you're in violation of, you know, CC&R X, Y, and Z. When can we get this on the date? I would assume even a non-sophisticated or somewhat ignorant, somewhat incompetent board member sees this, it raises the eyebrow, and they, I mean, maybe at minimum, they send it to their lawyer.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I think that's a fair bet, because you've put enough in there where, in the eyes of a reasonable or even somewhat reasonable person, something's going on there, and it seems dangerous in some ways, as opposed to a letter that just rants and raves about a situation. Sure. Because you've got to remember, too, however you... What you draft is going to be analyzed not just by the board, but likely by a lawyer. Sure. And if you have a legit dispute, you do not want to muddy those waters with a bunch of emotionally charged ranting and raving. And again, I go back to this. I understand why homeowners do it because this is so frustrating to them. This is where they live. It is an absolute hell for them. And I get that, but don't shoot yourself in the foot. Take away the emotion. You've got to compartmentalize it to the best that you can. It's hard. Yeah. You know, what I would recommend is write the IDR, you know, on day one, and then on day two, go back to it and read it and try to... That's a great idea. Yeah. Get all the venom out... And then, you know, sort of cleanse it the next day.

Bad HOA Producer & Contributor, Marty Vasquez

ChatGPT, can you make this sound like I'm not emotionally unstable?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Sure, use AI.

Bad HOA Producer & Contributor, Marty Vasquez

Right. And typically, you know, you talk about emotional instability. You know, we deal with, you know, individuals who are successful, you know, businessmen and women who are, you know, CEOs of massive companies. And because they're in such a bad situation with their HOA, I mean, they're just losing it rightfully. And these are individuals with tremendous mental fortitude. I mean, just sharp, wicked, intelligent, very well-heeled educationally.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And even for these individuals who you would think who could withstand a tremendous amount of pressure, they're losing their minds over this because it's such a visceral situation. When you have a bad HOA, it infects all areas of life and it drives people crazy, rightfully.

Bad HOA Producer & Contributor, Marty Vasquez

This is your safe, it's supposed to be your safe place.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It's supposed to be.

Bad HOA Producer & Contributor, Marty Vasquez

And then you have this rogue group that is just making your life a living hell. Yeah. So I get it. But, that all being said, try to take that out of the written communication because that's how you're going to be judged.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. That's another good tip. Okay. Let's assume that they ignore you for IDR or they say some response that you're not getting anywhere. Right. At this point, would you say it's time for a lawyer? Like we've exhausted most of the options here.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I would say at that point, you consult with a lawyer. Yeah. And always best, in my opinion, and this is objectively. I mean, I know we're a law firm that really focuses on HOA. We're homeowner driven.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

But you really want to find a lawyer who's well-versed in this space.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And there's a big difference between an HOA attorney who represents homeowners and a general real estate attorney. Sure. Because the area of law in a homeowner association is fairly complex. You know, you have a lot of different competing areas of law. I mean, you have state, federal, right, local. You have CCNRs, you have bylaws, you have Davis-Sterling, you have fiduciary, you have case law interpreting it all. So it is actually a very niche area of the law. So if you're going to find a lawyer, my first recommendation is find someone who really is knowledgeable in the space. Yeah. And if you're a homeowner, I tend to recommend law firms that only represent one side, meaning homeowners. I don't necessarily agree with someone who represents HOAs and homeowners. I think you pick a side. You can't be on both sides of this coin, in my humble opinion on that. And a lot of attorneys, you see different setups for consultations. I think a good consultation is probably an hour. You have some law firms that charge for the hour, Yeah. And you have some law firms that offer free consultations. Yeah. So I would call around. You want to be comfortable with the law firm. I always say, go online, check the reviews, see what the public is saying. Yeah. And ensure that they have some sort of thought leadership in the space. Yeah. And at that point, you're going to at least spend an hour with a lawyer to have that lawyer look at it. Again, the lawyer should come in more objectively and really at that point sort of analyze both the legal and economic side of the equation.

Bad HOA Producer & Contributor, Marty Vasquez

And I mean there's plenty plenty plenty of cases that you see where they just need the consultation to give them some guidance to get to that next step. It's not a predestined thing that they're going to end up you know in front of a jury or in front of a mediator or there's lots of aspects there.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Well, that's where I think a dynamic attorney comes in. Because an attorney who can analyze a situation and say, OK, you have four options. Here's the option. If you want to engage in self-help, this is what it looks like. And that attorney will draft the blueprint. Or if you want attorney intervention, this is what it could look like on this flow. This is what it could look like if we tackle it this way. And really, there should be a number of options. because, you know, most attorneys who are dynamic can identify different ways to approach the problem. Yeah. With that though, they should always give the pros and cons. Sure. Because there's an up and a down of any strategy that you implement. There's gonna be pros and there's gonna be cons and you got to know both.

Bad HOA Producer & Contributor, Marty Vasquez

And I assume a lot of that comes down to the economics of it. There's probably times that there's no damages but your life's just living hell. What's... There are damages. There's $100,000 worth of damage that is caused by your HOA. There's something tangible there. So there's an economic factor there, too, when it comes to probably strategies. Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Economics always ties into it. Legal strategy, of course, what does the evidence look like? How strong is the case? What is the makeup of the board? Who's on the other side of it? Who is the association's counsel? Yeah. You know, there's a lot of things you have to read to make informed decisions. The more data you have, the better. But hopefully, during that consultation, you have enough data to put together some pretty good strategies. Yeah. But also, yeah, analyzing the economics of it, the legal side of it. And hopefully, between the lawyer and yourself, you come up with something that makes good business sense. Sure. Because ultimately, you as the homeowner, it's your decision as to how you want to move forward. Yeah. There shouldn't really be a sell, so to speak, from the attorney. Sure. It should be a somewhat of a, hey, here are your four options, here are the pros and cons of those options. Now you as homeowner make the business decision. And with any option, and I've been in the space now for a very long time, there's really no silver bullet. There's no magic wand necessarily. This is advocacy and it's fighting against another side, it is a form of war. And so there's unknown risk in war. Sure.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. Let's just really quick talk about if you do need to see an attorney, what would you advise that listener if they're at this point where I'm considering attorney, what should they prepare? What should they have in front of them? Because I know there's information overload and there's no possible way if you dump hundreds of pages worth of X, Y, and Z onto an attorney, they're not going to be able to get through that in an hour consultation. What is the ideal amount of preparation for that attorney so you make that consultation as seamless as possible to get the most out of it and to set yourself up for a good working relationship?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You're looking at the Goldilocks scenario because on the one hand you don't want to show up with nothing. Yeah. That's not helpful and you also don't want to be the person who shows up with seven banker boxes of documents. That's not helpful either. So where's the sweet spot on that? So my recommendation first and foremost is to do some work before the consult. And one of the best things I find very helpful is create a timeline for the background allegations. It doesn't have to be perfect. And you don't want to muddy it with too much information, but what were the highlights? What happened on this date? What happened on this date? What happened on this date?

Bad HOA Producer & Contributor, Marty Vasquez

The most egregious offenses.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct. And if you can sort of map that out and in that document put who are the players, who are we dealing with, and then articulate with some sort of specificity, what is your objective? What are you looking to accomplish here? That's interesting. That is very helpful because, you know, a lawyer approaching a consult really should start with your objectives. Because if you start with the facts, that could take three hours. Because typically these disputes have taken, you know, have accrued over years, some of them. And so by honing in on the objectives of the homeowner, This is what you want to accomplish. The lawyer will be in a better position to understand, okay, how does the fact slot into this objective? And they'll be able to triangulate a little bit better and understand the, not reasonableness, how relative the facts are to what you're pursuing. And that's very important.

Bad HOA Producer & Contributor, Marty Vasquez

Would you recommend, obviously, at some point, you're probably going to need to see the CCNR or should they have those handy for the consultation and possibly the areas that they, if they've gone through it, according to our steps, they should know the areas that they've potentially violated. So was that helpful as well?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So start with the outline, with the objectives and map that out. Part two, governing documents, of course, very helpful. Part three, relevant communications with the board, emails back and forth, I think that can be very helpful because that's gonna give the attorney a little bit of a flavor of who we're dealing with. Sure. You know, for if you have video or pictures, now don't send 10,000 photos, but I would curate those. The most relevant. Absolutely. And then maybe if you have an expert report, you sort of back into, you know, these different things. You know, you start with the, I think that the starting point is always going to be that outline.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Right. That's good. Then if you have them available, governing docs. Sure. And then if you have back and forth, then do the emails, right? Yeah. And sort of, you should, and even better if you can put it in one folder or a binder, that's always well-received. But if not, I think it's fine just to upload them separately if it's a remote consult. But if it's in person, just bring a binder. You have a binder, give the binder to the attorney, and just you guys can walk it through together. I think that would be the best use of that hour or so of the consult time.

Bad HOA Producer & Contributor, Marty Vasquez

Perfect. Well, I think we covered all the bases here. And I think, again, we just covered the very surface level on this thing. And we've gone into so much more detail on very specific dispute types, again, failure to repair, harassment, common area disputes, negligence, CC&R, neighbor disputes, selective enforcement. We have full episodes that are nearly an hour long, each one of those that outline, okay, who are you dealing with, how to approach it, collecting evidence, and how to deal with that are really helpful, as well as the personalities of board members. I think that if you're interested in looking at and diving deeper, those episodes are great. Like I said, they're chock-full of information, but I think this has been really helpful.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I think it's great. No, I love this. This is all you, Marty. You came up with this, but it was a really nice way to take out the framework. This episode, as I see it, as we're doing it in real time, is really the framework in which to enforce. And then, I suppose, everything else that we've done so far sort of gives it context.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So thank you for making this happen.

Bad HOA Producer & Contributor, Marty Vasquez

Always a pleasure. I'm glad to be a part of it. It's interesting. It's fun.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right. Well, thank you guys for watching. Hopefully, we have been a resource. And don't forget to subscribe. And again, leave comments. If you have questions, concerns, we can hopefully address those on future episodes.

Bad HOA Producer & Contributor, Marty Vasquez

Yeah. Or if there's any episodes that you want to hear about specifically that we haven't already covered, even though we've covered quite a bit. I mean it's always great to get some feedback and potentially gather some new ideas for new episodes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Very good. All right, well thank you guys and we'll see you soon.