OVERVIEW
If you’ve ever felt powerless in the face of your HOA’s decisions, you’re not imagining it. The power imbalance between boards and homeowners is very real—and it’s hardwired into the way California HOA law works. But if you know where the legal pressure points are, and how to apply them precisely, you can shift that balance in your favor.
Some so-called experts in this space claim this imbalance stems primarily from outdated or ambiguous CC&Rs or passive homeowners who fail to “check” the board’s authority. That kind of thinking isn’t just reductive—it misses the mark entirely, and it reveals a shallow understanding of how the Davis-Stirling Act really works. The problem isn’t just bad paperwork or unchecked power. It’s structural, and unless you understand the legal framework that created it, you’ll never correct it.
This article is based on Episode 22 of the HOA HELL podcast, hosted by the author, Michael Kushner. That episode—titled “Why Your HOA Has the Upper Hand—and 7 Legal Tools to Fight Back”—explains the real legal mechanisms behind the imbalance, and gives California homeowners actionable strategies to level the playing field using tools that already exist in the law.
WHY HOAs HOLD SO MUCH POWER
Contrary to the views expressed by my former employee, the power disparity actually arises out of three rather obvious structural advantages that every HOA board enjoys:
- They use your money to fight you.
- They’re shielded by a legal doctrine known as the Business Judgment Rule.
- They control the enforcement process from beginning to end.
The first is financial. When a board wants to escalate a dispute, it hires lawyers and consultants using association funds—your dues. But when you need to respond, it’s coming out of your own pocket. That’s not a level playing field. That’s a system that inherently favors the side with the most money—in this case, the HOA.
The second is legal. The Business Judgment Rule gives HOA boards extremely broad protection from liability. As long as they can show that their decision was made in good faith, within the proper scope of their authority, and with some minimal level of diligence, courts are very reluctant to second-guess them. It doesn’t matter if the decision was dumb, wasteful, or even unfair. If it fits within the rule’s broad parameters, the board wins.
And third, they control enforcement. They decide what gets enforced, when, and against whom. If you violate a rule, they’ll act immediately. But if your neighbor breaks the same rule? They might look the other way. The board sets the agenda, interprets the rules, and controls the hearing process—often in secret. You don’t to bring members of the board to a hearing for the purpose of fining them. That power only flows one way.
Together, these advantages create an inherently imbalanced system, and unless you understand how to challenge that structure, you’re at a disadvantage directly out of the gate.
HOW TO FIGHT BACK: THE 7 LEGAL TOOLS THAT SHIFT THE BALANCE BACK TO YOU (WITH 2 BONUS TOOLS)
While the power imbalance is real, it is not absolute. California law provides homeowners with real leverage points—if they know how to use them. These tools aren’t theoretical. They’re enforceable. And when used strategically, they can disrupt board overreach, expose bad actors, and correct systemic abuse.
What follows are seven of the most effective tools for homeowners who are serious about pushing back—and doing so within the boundaries of enforceable legal process. This isn’t about emotion. It’s about leverage. It’s about shifting control by using the law smarter than the board does.
Legal Tool #1: Document Everything Precisely and Professionally
Documentation is your leverage. If you want to compel compliance, recover fees, or demonstrate bad faith, you need a clean paper trail.
- Save all emails, voicemails, and written correspondence—with full dates.
- If necessary, make a 5200 demand for documents. Click on these links to view a full-length video, a 1-Min Atty Tip video, and an article I wrote on how to properly make a 5200 demand on your board.
- Keep a log detailing the date, time, who you spoke/wrote to, and brief description of the substance of the communication.
- Take time-stamped photos or videos, especially for property or maintenance disputes.
- Request board decisions or meeting minutes in writing, not verbally.
- Preserve any communications from neighbors that corroborate your claims.
Every communication that you send, whether via text, email, or post, should be written as if a judge or jury might one day read it. Don’t rant. Don’t speculate. Avoid personal attacks or anything that might make you appear unhinged, irrational, or unreasonable (understandably so, by the way). Stay focused and professional. Let the board be the one to come off as evasive or hostile.
Legal Tool #2: Know Your Governing Documents
You can’t win the game if you don’t know the rules. And the rules of your HOA are spelled out in your governing documents.
Your CC&Rs, Bylaws, and Operating Rules aren’t just technicalities—they’re the HOA’s playbook. And often, the board is either misreading them or banking on the fact that you haven’t.
If you have digital copies, use the search function—Ctrl+F—to find key sections on:
- Maintenance obligations.
- Exclusive Use Common Area.
- Fines and penalties.
- Architectural review and approval.
- Hearing procedures.
Don’t assume the board is applying the rules correctly because a lot of the time, they aren’t.
Legal Tool #3: Strategic Informal Contact—Use Their Words Against Them
Before things escalate, sometimes it pays to start small. A short, respectful email to a board member can go a long way—if done correctly. Reference the exact section of the governing documents or Civil Code. Attach supporting documentation. Keep your tone calm and professional. Avoid the personal attacks even if they’ve lodged them at you.
Treat every email or letter that you send as if a judge or jury will see it in the future.
This isn’t about getting an apology—it’s about building a credible record that shows you acted in good faith and knew what you were talking about. Even if it doesn’t resolve the issue, this step strengthens your position for everything that follows.
Legal Tool #4: Demand IDR (But Only If You Think It Will Be Helpful To You)
Under Civil Code section 5910, you have the right to request Internal Dispute Resolution, or IDR. It’s a meeting between you and the board to try to resolve the issue informally.
No lawyers are required. No cost. And while it’s not binding, it’s often the first time the board realizes you’re serious. That said, IDR isn’t always worth it. If there’s already been a lot of hostility, or if it’s clear that the board is holding a personal grudge, then IDR may be a waste of time. The statute gives you the right to request it—but it doesn’t require you to. So if you know from experience that the board won’t act in good faith, it’s okay to skip it and move forward with stronger measures.
Be aware that many HOAs will try to imply that IDR is mandatory, especially if you’ve declined it or asked to skip ahead to formal ADR. Some boards do this to intimidate homeowners, hoping to avoid the cost and legal exposure of actual mediation. Others simply don’t understand the difference between IDR and ADR and use the terms interchangeably—even though the two processes couldn’t be more different.
Also—unlike formal ADR demands, which I discuss in the next Tool—we don’t think you NEED a lawyer for IDR. We’ve represented homeowners during IDR when they wanted us present, but the process is designed to be informal and accessible. If you feel comfortable presenting your own evidence and speaking confidently about the issues, you can absolutely handle it on your own.
Even if IDR doesn’t solve the problem, it’s a powerful procedural tool. It shows you tried to resolve things cooperatively—which puts you in a better light if further action becomes necessary.
Legal Tool #5: Serve a Proper ADR Demand (Meaning Hire a Qualified Attorney to do It)
While formal ADR is often required under the Davis-Stirling Act before filing a lawsuit to enforce the governing documents, we don’t view ADR as just a hoop to jump through—and neither should you.
One of the key innovations I developed—and that transformed how California homeowners resolve HOA disputes—is what I coined the “pre-litigation system.” That’s part of the systems and processes that I pioneered—the same systems/processes used by the self-proclaimed most experienced law firm practicing in this area of the law (having learned it from me when I employed him out of law school). My approach involves steering clients into ADR first, even in cases where the law didn’t strictly require it, because it was far less expensive than jumping directly into litigation, and I found that when using my system, the percentage of settlements in pre-litigation rose dramatically. Thus, we were able to obtain favorable results for our clients in a much faster, far less expensive, and dramatically more effective way than ever before.
Done right, formal ADR can resolve serious HOA disputes in a matter of weeks—not years—and at a fraction of the cost of full-blown litigation. It can also result in getting remedies that homeowners would not otherwise be entitled to under CA law if the case were litigated in court.
But here’s the catch: formal ADR demands must be handled with precision. That’s why we always recommend that you hire an attorney—and not just any attorney, but one who practices in this exact area of law. At MBK CHAPMAN, we’ve seen firsthand how often homeowners try to do this on their own and end up:
- Failing to properly cite the statute.
- Mischaracterizing the legal claims.
- Leaving out mandatory content required by Civil Code section 5935.
- Using emotional or vague language that weakens their position.
- Waiving critical rights—including fee recovery—by blowing deadlines or skipping steps.
Unlike IDR, which is informal and can be handled by the homeowner, ADR is a legal minefield. I don’t want you waiving a right—such as holding the HOA to a strict timeline set forth in the Davis-Stirling Act. Also, homeowners often think that they have to share their briefs (assuming they even do one) with the other side, and that’s almost always a mistake—especially if the homeowner is planning on following through with a lawsuit if they don’t obtain a settlement during ADR.
So while ADR is often legally required, we don’t treat it like a box to check—we treat it as a strategic opportunity to resolve the dispute on your terms, before litigation ever begins.
Legal Tool #6: Understanding What ADR Really Is
This is where a lot of lawyers (and even judges) get it wrong.
Technically, you only need to offer ADR before suing if:
- You’re enforcing the governing documents, and
- You’re seeking ONLY injunctive or declaratory relief, or
- You’re seeking injunctive or declaratory relief AND damages of more than $12,500.
If you’re only seeking money and the total is $12,500 or less, then ADR isn’t legally required. But don’t confuse “not required” with “not recommended.”
As I said previously, I almost always recommend serving a proper ADR demand anyway because my pre-litigation system has resolved countless cases faster and far more affordably than jumping directly into litigation, even when the law doesn’t technically require it.
And while skipping ADR where it’s required won’t necessarily bar your case from proceeding (if, for example, the other side fails to demurrer), it can still impact your fee recovery. Civil Code section 5960 gives the court discretion to consider your failure to pursue ADR when deciding how much to award in attorney’s fees. It’s not automatic, and it doesn’t mean you lose your fee rights altogether—but it’s still a risk you don’t want to invite.
Handled properly, ADR is a powerful settlement tool—even when not strictly required. Handled improperly, it can put you at a disadvantage before your lawsuit even begins.
Legal Tool #7: Manage Expectations and Budget Realistically
We’ve handled hundreds of HOA disputes, and if there’s one thing homeowners need going into this process, it’s clarity—both about keeping their expectations, as well as their budgets, in line with reality.
Let’s start with expectations.
One of the most important things we do for our clients is help them understand what the law entitles them to—not just what they feel they deserve. Homeowners often come to us demanding six or seven figures in emotional distress damages over disputes involving fines, repairs, or board conduct. We get it—these conflicts can be infuriating and deeply personal. But the legal system doesn’t work that way. You don’t get paid because something felt unfair. You get relief when your legal rights have been violated—and only to the extent the law allows.
The attorneys at MBK CHAPMAN are aggressive, strategic, and results-driven. If there’s a way to obtain damages, injunctive relief, or leverage in settlement, we’ll find it. But part of our job is managing expectations by telling you what your best legal claims are, what remedies are available, and what’s realistically achievable. We’ll give it to you straight, and then we’ll build the strongest case possible around that.
Now let’s talk budgeting. Engaging in ADR opens the door for you to resolve disputes for orders of magnitude less money than full blown litigation costs. So keep that in mind. That’s why our pre-litigation system exists. We’ve resolved major disputes in months, not years—and saved our clients tens of thousands of dollars in the process.
So yes—budget realistically, but also come in with an open mind. You may not be legally entitled to everything you want—but if there’s a valid way to get meaningful relief, we’ll go after it with everything we’ve got.
That’s what this tool is really about: not just recovering what you’re owed, but using the threat of fee-shifting to create leverage before you ever set foot in court. It’s one of the strongest pressure points you have—and boards know it.
Bonus Tool (#8): Know What the Business Judgment Rule Does—and Doesn’t—Protect
Many boards invoke the Business Judgment Rule like it’s an absolute shield. It’s not. The doctrine protects board decisions only when they are:
- Made in good faith.
- Based on reasonable inquiry.
- Within the scope of the board’s authority.
- Free from fraud, oppression, or conflict of interest.
It does not protect decisions that are arbitrary, discriminatory, nor does it protect board members when they’ve committed fraud, breach of fiduciary duty, or other intentional torts.
When applicable, the key is to gather facts that take the dispute outside the rule’s protection. Show that the board acted without authority, ignored contrary evidence, or applied the rules inconsistently. The moment you pierce that protective layer, the board members and the board as a whole are exposed—and courts will take notice.
Bonus Tool (#9): Submit a 5200 Demand—And Enforce It
California Civil Code section 5200 gives you the right to access a surprisingly broad list of association records. Other than the membership list, you don’t need to explain why you want the documents. You don’t need to negotiate. If you’re a member, you have an absolute right to see the records.
As I indicated in my recent article (click here to access that article), your 5200 demand should list the specific categories of documents, include the statutory basis next to each one, and make clear that each line item will be treated as a separate violation under Civil Code section 5235 if the board fails to comply.
Here are some of the documents that you may wish to demand (with citations in parentheses):
- Membership list, along with email addresses (for those who have no affirmatively opted out) (Civ. Code, § 5200(a)(9)).
- Governing documents (Civ. Code, § 5200(a)(11)).
- Bank statements, canceled checks, check registers, and credit card statements (Civ. Code §§ 5200(a)(10), (a)(13)).
- Purchase orders (Civ. Code § 5200(a)(13)).
- Invoices and reimbursement requests (Civ. Code § 5200(a)(13)).
- Certificates and declarations for all insurance policies (Civ. Code § 5200(a)(4)).
- Meeting notices, agendas, and minutes (Civ. Code § 5200(a)(8)).
- Annual budget disclosures and reserve funding plans (Civ. Code §§ 5200(a)(1), 5320(b)).
- Annual policy statements (Civ. Code §§ 5200(a)(1), 5310(b)).
- Management disclosures (Civ. Code §§ 5375, 5380).
- Reserve studies, reserve account balances, and reserve expenditure records (Civ. Code §§ 5200(a)(7), 5320(b)).
- Signed contracts, except those protected by privilege (Civ. Code § 5200(a)(4)).
- Balance sheets, income/expense reports, budget comparisons, and the general ledger (Civ. Code § 5200(a)(3)).
- Federal and state tax returns (Civ. Code § 5200(a)(6)).
- Election rules and board qualification standards (Civ. Code § 5200(a)(11)).
Include a deadline. Under Civil Code section 5210, the timelines are as follows: (a) for a membership list, it’s 5 business days (see also Corp. Code, § 8330); (b) for current-year records, it’s 10 business days; and (c) for other permitted documents, it’s 30 calendar days. No extensions are required or recommended (unless you feel like it). And make sure to look out for the games that HOA’s play that discussed in my article.
CONCLUDING THOUGHT
HOA boards rely on homeowners not knowing the rules. They count on emotional reactions, inconsistent communication, and legal inexperience. But when you understand the actual legal tools available to you—and you use them strategically—you change the dynamic entirely.
These seven tools aren’t theories or wish list items. They’re enforceable rights under California law. When deployed correctly, they can force transparency, demand accountability, and create real consequences for boards that abuse their power.
Most boards aren’t prepared to deal with an informed, well-documented homeowner who can cite chapter and verse of the governing documents, quote the Civil Code with accuracy, or build and maintain a clean record. They’re used to bullying people who either don’t push back or don’t know how.
The moment you speak their language—and weaponize the legal system as effectively as they do—is the moment the balance shifts. And at MBK CHAPMAN, we’ve built an entire pre-litigation system around that very shift: leveraging the law before the courtroom is ever involved.
If your HOA is misusing its power, stalling, or stonewalling your rights, you don’t have to fight blind—and you don’t have to fight alone. Call us. We’ll set your HOA straight.