By statute, all owners are entitled to a due process hearing with the board when accused of wrongdoing by violating the HOA’s governing documents. To be heard and to face one’s accusers are fundamental rights.
Each violating owner must receive proper and timely notice of the violation and must be granted the ability to defend himself and to present his side of the story to his accusers.
All rules must be uniformly applied and enforced, considering the welfare of the association and not that of the individual owners.
All parties may be represented by legal counsel.
A violation notice should contain:
The observed or verified violation (if the violation is only alleged, the language of the notice must be carefully drafted)
- The rule violated
- The penalty permitted to be imposed
- Request for voluntary compliance with the violated rule
The hearing need not follow court rules, and, therefore, its atmosphere is relaxed and informal. Evidence, affidavits, and witnesses may be introduced by all parties.
The board should not discuss the matter and decide in the violator’s presence – the matter should be discussed after the violator has left the room, and the ruling notice must be sent by first-class mail shortly after the hearing.
The board should listen to the testimony of the violator and his witnesses; present its case, witnesses, and evidence; ask a few simple questions if necessary, and close the hearing. The process should not be argumentative or confrontational – the board should not argue with the violator.
If the violator brings his attorney to the hearing without notifying the board, the board may, but is not required to, cancel the hearing and reschedule when its attorney may also be present.
If the violator refuses to attend the hearing, the case must still be considered and discussed in his absence, and a ruling must be made.
The violator should be permitted to appeal the case to a committee or the entire board.