While there is nothing wrong with encouraging HOAs to establish guidelines so that owners can clearly understand their due process rights when filing a complaint, the CIC needs to be very careful about creating any additional undue burden on HOAs, most of which would not function without the willingness of volunteers to step up and serve.

There needs to be a provision in these regulations, should they be adopted, to control frivolous and nuisance complaints.  If this is not addressed you will surely drive good members from serving on Boards.

Section 6 needs to be modified to loosen the requirement that “Any specific documentation that must be provided with the association complaint shall be clearly described in the association complaint procedure.”   That wording is too specific.  There is no way that a policy could be written that would identify every “specific” document that is required for each complaint.  It would depend on the circumstances.   For example, if someone’s car was towed and  they wanted the HOA to reimburse the towing costs, a required document might be the towing invoice.  To say that a process must list every “specific” document that may be required in each and every case is impossible.

It should be changed  to something like  “The Association complaint procedure shall make clear that any documentation that the complainant wishes to provide in support of their case must be provided at the time of the filing.”   

Section 9 needs to be modified to eliminate the requirement that the notice of final determination “ …include specific citations to applicable association governing documents, laws, or regulations.”

This will require HOAs to run every complaint through an attorney driving up costs to the HOAs exponentially.    This requirement, in conjunction with the lack of a restriction on the filing frivolous complaints, will definitely bankrupt some HOAs and result in much higher fees.

To give an example, if it cost $300 for an attorney to review the final decision (to say nothing about being involved in other parts of the process) and you had someone file three complaints a year, that  would cost almost  $100 per homeowner in that 11 person HOA that was mentioned in a previous comment.    And that is just one member filing 3 times a year.  A frivolous filer might file something every week.  There is no question that if this provision remains, and an HOA feels they need legal review for each of these, it will raise an average size HOA’s legal fees a few thousand dollars even without frivolous filings.

Even your office obviously contemplated the issue of frivolous complaints since it imposed a filing fee.  That filing fee is clearly intended to reduce the number of cases filed with your office s well as raise revenue. 

While not explicitly forbidden in these regulations, I recommend a provision be added that HOAs can establish filing fees to require individuals who file more than one complaint in a five year period to pay a filing fee to the HOA as a way to control frivolous complaints. 

While it is important to give members their due process rights and make it as structured a process as possible, it is even more important to keep the process flexible enough so that it can be managed with volunteers.   This is why you need to remove the requirement that the laws and regulations be cited in the final decision and just say “the Association shall make clear the basis for its decision in relation to the Association’s policies and governing documents.”  

If the complainant wants to make the case that the Association’s policies are not consistent with the law, they can make that case to the CIC or in the courts.  The way it is now would require a legal review of each decision which would be a terrible burden. 

I recommend that these rules regarding the establishment of a complaint process be strongly encouraged but made voluntary.  You should also develop a sample template policy resolution that can be used.  After all, the main reason HOAs do not have such policies is not that they want to deny their members due process, but they do not have the time and resources to develop policies.  Providing such a template for HOAs to use would do far  more to get complaint policies implemented by HOAs than these regulations will ever do.

In the end, good Boards will develop policies (or use your template if you provide one) and  bad  Boards will not articulate policies whether you require them or not.  As your policy makes clear, in the end, ultimately the only recourse of a member who has to deal with an intransigent Board will remain the court system.   It is important to understand this and not develop policies that put an undue burden on the vast majority of Boards that are volunteering their time to do the right thing.