Providing an Effective Post-Hearing Notice of Discipline

 

This article is part two in the two-part series on holding effective disciplinary hearings.  You noticed the hearing following the procedures in part one of this series, the board held the hearing, and “If the board imposes discipline on a member or imposes a monetary charge on the member for damage to common area and facilities,” you must now send a post-hearing notice of disciplinary action to ensure effective enforcement.  (Civil Code section 5855(c).)  Note, section 5585(c) does not require that the association send a post-hearing notice if the board imposes no disciplinary action, but it may nevertheless be a good idea for record-keeping purposes and as a simple courtesy to the member.

The post-hearing notice of disciplinary action (“Post-Hearing Notice” or “Notice”) includes fewer statutory requirements than the notice of hearing, but there are several important provisions the Notice should include to help ensure its enforceability.

Pursuant to Civil Code section 5855(c), a Post-Hearing Notice must be sent to the member within 15 days of the hearing date.  The Notice must also notify the member of the board’s decision on imposing disciplinary action(s).

The Post-Hearing Notice should also include:

• Date of the letter (the date should be the same as the date of mailing);
• Record title owner’s correct name and mailing address;
  • • We suggest pulling the deed for the property to confirm title.
• Property address within the association;
• The date and location the board held the hearing, along with the specific time the hearing convened;
• The specific disciplinary action(s) to be imposed by the board after considering the evidence available to it (this is mandatory);
  • • Examples: fines in the amount of x dollars, suspension recreational use privileges, removal of unauthorized architectural modifications by a date certain;
    • As with the notice of hearing, we suggest including the name of the document (e.g., Declaration, Rules) and the section(s) violated.
    • If applicable, a statement that fines may increase by x dollars or continue to be levied monthly without further hearings until the violation is remedied (this is only available if the governing documents provide for this and the violation is of an uninterrupted or continuing nature, e.g., an ongoing architectural violation);
    • If the hearing was for damage to common area or association property, state the amount of damages owed to the association and the due date in accordance with the governing documents; and
• The effective date of any disciplinary action.

Although not required, some boards might find it helpful to also include:

• A statement confirming who appeared and testified before the board (if no one appeared, state this);
• A summary of the substance of the testimony of witnesses and the member(s) subject to the hearing; and
• A list of the documents and other evidence the board reviewed in reaching its decision.

The Post-Hearing Notice must be delivered to the owner by either personal delivery or individual delivery pursuant to Civil Code section 4040.  We suggest sending the Post-Hearing Notice by both first-class mail, postage prepaid and certified mail, return receipt requested.  If the owner has requested the association send his or her notices to a secondary address, then the association must send the Notice by personal delivery or individual delivery to both addresses. (Civil Code sections 4040 and 5260).

The Notice may also include a proof of service. While proof of service is not required to enforce disciplinary measures, a sworn statement on mailing is evidence the notice was, in fact, sent.  Any proof of service should be kept with the association’s copy of the Notice and not sent to the owner.

Following the procedures in our preceding notice of hearing article, along with the above post-hearing procedures, will help ensure effective and proper enforcement of the governing documents.