by Jacqueline Pagano, Esq.
Feldsott, Lee & Nichter
In a recent unpublished opinion, the Court of Appeals upheld the common practice of excluding tenants from disciplinary hearings and held that an association did not have to give tenants an opportunity to be heard before imposing fines on the landlord for the tenants’ nuisances and violations.
In Harbor Island Condominium Owners Association v. Alexander (2019), two tenants rented a unit in a condominium project. Harbor Island Condominium Owners Association (the “HOA”) filed suit against the tenants and their landlord and requested a preliminary injunction requiring the tenants to mitigate noise, keep their dogs out of common areas in which pets were not allowed, and abstain from photographing the HOA President at the community pool. The HOA argued that the tenants’ conduct violated the nuisance restrictions in the CC&Rs. The trial court granted the preliminary injunction.
The tenants appealed and argued that the trial court abused its discretion in issuing the injunction because (i) the association governing documents did not address dog restrictions, (ii) the association did not adequately investigate the downstairs neighbors’ noise complaints with a physical investigation, and (iii) the tenants were denied an opportunity the challenge the violation notices and fines imposed by the association by attending the disciplinary hearings to which the landlord was called.
The Court of Appeals affirmed the trial court’s grant of injunction, noting that the nuisance provision in the HOA’s CC&Rs was broad enough to allow the HOA to exclude dogs from specified common areas for health and safety reasons. The Court further held that that CC&Rs did not require the HOA to conduct a physical investigation prior to finding a noise nuisance, stating: “[HOA] is entitled to seek an injunction to stop acoustic nuisances that interfere with a neighbors’ quiet enjoyment; the request may be supported by testimony from affected homeowners that the noise is ‘intolerable.’”
Finally, the Court held that the tenants did not have standing to assert the rights of their landlord before the board concerning the fines imposed for the tenants’ violations, and the HOA did not have to give the tenants an opportunity to be heard.
This case reinforces that only homeowners have the right to attend general and executive session meetings of the Board. Because tenants do not have the same due process rights as owners, only the landlord need be called to a hearing prior to issuing disciplinary action for a tenant’s violations. Because due process requires the opportunity to present evidence in one’s defense, however, the landlord may choose to invite the tenants to testify at the hearing as witnesses, in which case the tenants need only be heard and need not be afforded any opportunity for interaction with the board. Finally, because due process includes the right to present a defense, it is generally advisable to allow homeowners to be represented by legal counsel at a hearing upon sufficient prior notice to the board.