Court Says Board Cannot Make Repair and Maintenance Decisions in Executive Session Meetings

This case involved a dispute between the owner of a townhouse (“Owner”) and her homeowners association (“Association”) over the removal of common area trees.

The issues between Owner and Association started in 2018 when Association sued Owner for breach of the CC&Rs and nuisance based on claims relating to allegations by Association that Owner was obstructing the common area and was maintaining an unused HVAC on the roof. While the suit was pending Association approved a bid for removing all trees and plants from the common area planters to facilitate waterproofing of the planters because water was leaking from the planters into the subterranean garage. Association also approved plans for the planting of new plants in the planters.

Owner contended that the trees by her townhouse provided her with privacy and shade, protected her from intruders, and created a sound barrier. Objecting to the removal of the trees located in planters outside of her townhouse, Owner filed a cross-complaint against Association in the action Association had commenced against Owner alleging claims for breach of contract, nuisance, declaratory relief and violations of the Open Meeting Act. Owner’s cross-complaint sought preliminary and permanent injunctions to enjoin Association from removing the trees in the planters located outside of her unit.

In her cross-complaint, Owner contended that Association’s planned removal of the trees and the related work constituted a “capital improvement” that required the approval of a majority of the voting members of Association. Owner also contended that Association’s board violated the Open Meeting Act by conducting meetings regarding the proposed project in executive session and not in meetings that were open to the members. In opposition to Owner’s claims, Association contended that the proposed work was not a capital improvement and thus, approval of the membership was not needed. Association further contended that the board properly considered the matter in executive session because Owner had threatened litigation.

The trial court found that removing the trees by Owner’s townhouse would cause owner:

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