On occasion we are in court trying to defend the actions taken by a board of directors to enforce the provisions of their governing documents. The biggest frustration we have, and which can lead to losing in court, is the lack of documentation supporting the decision making process of the board. And when unit owners don’t have a legal basis to challenge the decisions made by a board, they challenge the process.
The decisions made may be perfectly reasonable, but without adequate written records, it becomes impossible to prove (in court) that the process followed and things considered by the board actually occurred. Memories fade, board members and managers change, and the written records don’t reflect the critical decision-making process.
So if your community holds a hearing to determine if a violation of the rules, declaration, or CC&R has occurred, you should make sure that there are minutes kept of the meeting. The minutes should include the time and place of the hearing and record the names of the people in attendance. The minutes should also say (briefly) what documents the board had to consider when it made its decisions, who gave oral testimony, and what letters, emails, or association documents were considered. If appropriate, the minutes should also state what books (like a dictionary), websites, or other sources of information were consulted, and what professionals (if any) were consulted before the board made its decision. You should also make sure that the decision is written down.
If you have a particularly difficult owner, you should consider consulting an attorney or manager to make sure that the process you use would survive challenge.
As we frequently tell our clients, if it wasn’t written down, it never happened.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!