Suspending Common Area Privileges or Voting Rights
by Jason N. Miller, Esq.
Shareholder | Carpenter Hazlewood Delgado & Bolen, LLP
Can an Association suspend an owner’s right to use the Association’s common area facilities or an owner’s right to vote on Association matters when that owner is delinquent in the payment of their assessments? Most people in the HOA industry automatically answer “yes” to this question, but the answer is not so simple. Because state statutes and case law do not specifically address the issue, the answer to this question is typically governing document specific. But, because all documents are different, the answer may differ for each and every Association. Fortunately, there are provisions in common to many associations. So being aware of these provisions and how they operate before an Association suspends privileges or voting rights is key to effectively exercising this authority (if you have it).
The first, and most basic, question to ask is whether or not your documents have a provision that allows the Association to suspend voting rights or the right to use the common area facilities. Many times you can find this provision in the “Easement” article of CC&Rs, but sometimes it may also be found in the “General Provisions” article or “Association Powers” article, and occasionally in the Association’s Bylaws.
Once you have found your suspension provision, look to see if owners’ rights are automatically suspended after a certain time period (typically after the owner is 15 days’ delinquent) or if the Board has to take some sort of affirmative action before the suspension can take place (such as providing notice and an opportunity to be heard within a certain time frame). Many times governing documents grant owners certain due process rights before their privileges may be suspended. If so, you need to be sure to strictly follow the requirements of the provision to avoid challenges to the Board’s authority to suspend. Only when an owner’s rights have been properly suspended, may you exclude their vote on Association matters or exclude them from using the common area facilities.
Jason Miller is a Shareholder with Carpenter Hazlewood Delgado & Bolen, LLP and has extensive knowledge and experience in the practice areas of community association law and business law.