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An increasing number of California residents live in houses or condominiums that are governed by a homeowner association (an “HOA“) or a condominium association (a “COA”). One organization estimates that over nine million Californians live in these so-called “common interest developments.”1
There are also an overwhelming number of HOAs and COAs in existence in California today-at least thirty-eight thousand (38,000). 2 In some areas of the state, like Orange County and San Diego County, most new housing built since around the 1980s has been part of a common interest development. 3
Homeowner association fraud (also known as HOA fraud) or condominium association (COA) fraud) is a term that describes the white-collar crime of fraud carried out in connection with an HOA or COA. Officials also refer to this as homeowner association corruption.
People accused of HOA fraud and corruption are generally members of an HOA or COA board. Serving on one of these boards can be a thankless job even under normal circumstances. It’s usually an unpaid, time-consuming position. Other homeowners and condo owners tend to blame board members for everything that goes wrong and may try to turn a personal or political dispute into a legal matter. 4 For board members, accusations that they have committed HOA fraud can feel like insult added to injury.
In this article, our California criminal defense attorneys5 explain the crime of HOA fraud and corruption in California by addressing the following:
If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.
If you own your own single-family home on its own lot and don’t share community facilities with your neighbors, then you probably don’t have to deal with an HOA or COA.
But a large number of homeowners live in a “common interest development.” This means that they may own
These homeowners have space that only they own-like the inside of their condo unit or their own private house. But they also own certain space-like the lobby or hallways of the condominium, or the shared recreational facilities-in common with other homeowners in the condo or community. 6
Up until about the 1960s, only fairly well-off people tended to live in common interest developments. But since then, the number of these developments has skyrocketed. Now the majority of all new housing built in California is part of one of these communities.
A lot of growth in common interest developments took place in the 1980s. Local governments in California were collecting a lot less in taxes thanks to recent policy reforms and so couldn’t pay for amenities like parks and streets for new housing. But common interest developments stepped in to fill the gap by building and managing these kinds of amenities themselves. 7
In 1985, the California legislature passed the Davis-Stirling Act. This law acknowledged the growing importance of common interest developments by setting out detailed guidelines for how they should be run. 8
Simply put, if you own a condo, townhouse, or house that is part of a gated community or other common interest development, then you are a member of either a condominium association (COA) or a homeowner association (HOA). In theory, the HOA or COA manages the community of which your home is a part. 9
But in practice, most important decisions about the management of the community are made by a smaller group of homeowners who serve on the HOA board of directors. 10
The board members are elected by the whole group of homeowners.11 They control the budget of the condo building or residential community. For example, the board members decide how much to spend on maintaining or repairing the common areas. They may also decide how much money to collect from the other homeowners through so-called “assessments.” 12
According to Los Angeles and Pasadena criminal defense attorney Neil Shouse13:
“It can be helpful to think of an HOA (or COA) board as being sort of like a mini- government. Like a government, it has the power to collect taxes (though in this case they are called assessments) and then to decide how to spend that money. Just like with regular governments, this power leads to lots of room for controversy and sometimes even corruption and fraudulent activity.”
HOA board members are typically the ones who are accused of the white collar crime of HOA fraud…often when they take actions that other homeowners who are not on the board disagree with. HOA fraud is a non-violent financial crime…but having to face criminal charges for it can nevertheless lead to steep penalties, not to mention terrible personal and professional repercussions.
California embezzlement laws define embezzlement as the act of fraudulently taking for yourself property that has been entrusted to you by someone else.14 Embezzlement in the HOA or COA context would consist of an HOA or COA board member somehow diverting the HOA or COA’s money to himself or herself. This is a form of HOA fraud.
Example: Betty owns a condo in a building called Woodbridge Estates. She is elected to the board of the Woodbridge Estates COA, and she is named the treasurer of the board. Because of this, she is given control over the COA’s bank account, and she also maintains the COA’s financial records.
Every month, Betty transfers $1000 from the COA’s bank account to her own personal account. She does not record these transfers on the COA’s financial records, so no one else knows about them. Betty has committed embezzlement.
In order to convict you of embezzlement from an HOA or COA, a county district attorney or state attorney general would have to show four things:
Example: Terry is a board member of the HOA for the planned community where he lives. The HOA keeps its money in a small local bank that is having financial troubles. Terry begins to worry that the bank may fail. So he transfers the HOA’s funds to a new account at his own bank, which is bigger and more stable. Terry is probably not guilty of HOA embezzlement. He didn’t move the money for his own benefit but instead took it for the HOA’s benefit. Also, he did not intend to deprive the HOA of its property. He is not an embezzler.
You can be convicted of HOA fraud through embezzlement even if you intended only to borrow something from an HOA or COA. 16 If you haven’t returned the property to the HOA at the time when you are charged with embezzlement, you cannot defend yourself by pointing out that you planned to give the property back. 17
Example: Maria is a single mother and a condo owner. She is a member of the board of her COA. One month, she is faced with high medical bills for one of her children. She cannot pay them when they are due but knows she will be able to pay them in a few months, when she will get a tax refund.
Maria transfers money from the COA’s bank account to her own bank account and uses it to pay the medical bills. Her plan is to refund the money when her tax refund arrives. But she is arrested and charged with the COA fraud crime of embezzlement before she can do so. She can still be found guilty even though she intended to give the money back.
HOA fraud through embezzlement is a California theft crime. 18 The potential penalties depend on how much money or property was embezzled.
If the value of the property taken is more than nine hundred fifty dollars ($950), it is grand theft. 19 Grand theft is a “wobbler” in California law, which means that it may be prosecuted as either a misdemeanor or a felony in California law. 20 The prosecutor will decide whether to bring misdemeanor or felony charges based on the circumstances of your case and your criminal history.
If you are charged with grand theft as a misdemeanor, you may be sentenced to up to one (1) year in county jail. 21 If felony charges are brought, you may be imprisoned for sixteen (16) months or two (2) or three (3) years. 22
But if the value of the property embezzled is $950 or less, HOA fraud through embezzlement is a form of petty theft. 23 Petty theft is a misdemeanor. The possible penalties are a fine of up to one thousand dollars ($1,000), up to six (6) months in county jail, or both. 24
Another form of HOA fraud consists of violations of California corporate law.
This is because HOAs and COAs are usually California corporations. 25 Specifically, they are usually a kind of California nonprofit corporation known as a “mutual benefit corporation.” 26
Directors of a mutual benefit corporation like an HOA or COA can face criminal penalties if they commit certain misconduct in connection with their duties. These include:
Example: The HOA of Broke Estates, a planned community, is running out of money. It may not have enough funds left to pay for landscaping and other essential services in a few months.
The members of the board of directors of Broke Estates know this. But they don’t want the other homeowners to know, because they are afraid that if they do know, they will stop paying their assessments. This will make matters even worse financially. So the board sends the other homeowners a report that claims the HOA has much more money in reserves than it actually does.
The board members are probably guilty of HOA fraud for lying about its financial condition.
Example: Dave is a member of the board of directors of his condo, Corruption Towers. His brother-in-law Carter is a contractor.
Dave is given the task of finding a contractor to make some necessary repairs to Corruption Towers. He gets five bids from several companies, including Carter’s. Three of the bids are lower than Carter’s bid, but Dave wants to give Carter the business. So he shreds the three written bids that were lower than Carter’s…and awards the vendor contract to Carter.
Dave is probably guilty of COA fraud for destroying COA records with intent to defraud the COA (by forcing it to pay more for the repairs than it needed to).
This form of HOA fraud is a wobbler, so it may be prosecuted as either a misdemeanor or a felony.31 It may be punished with time in state prison, a sentence of no more than one (1) year in county jail, and/or a fine of up to one thousand dollars ($1,000). 32
One particularly complicated form of HOA fraud is rigging elections to HOA and COA boards. The way this works is that people band together to get their friends and associates elected to boards. Those people then use their power as board members to steer contracts to companies they own or skim funds from the HOA. 33
In one especially large and complicated scheme that took place in Las Vegas, a group of conspirators gained control of COA boards for a number of condo complexes in several ways, such as:
Once they controlled the boards of these condos, the defendants would steer contracts for expensive services to their acquaintances who were contractors, property managers, and lawyers. 34
This form of HOA or COA fraud can be prosecuted in several ways. If the people involved use the mail or any form of wire communication (telephone, email, etc.) to advance the scheme, then the federal government may charge them with the federal crimes of mail fraud, wire fraud in California, or both. 35
Federal charges for mail or wire fraud carry penalties of up to twenty (20) years in federal prison, a fine, or both. 36
Rigging the election of a corporate board can also be a California state crime. California corporate law makes it a crime for a director of a mutual benefit corporation to knowingly issue a membership in the corporation for the purpose of defrauding current members. 37 Arranging for people to buy units solely for the purpose of casting certain votes could make one guilty of this crime.
This crime is a misdemeanor punishable by up to one (1) year in county jail, a one thousand dollar ($1,000) fine, or both. 38
Finally, forging ballots could be a violation of California forgery laws. Forgery is the crime of signing someone else’s name without permission or falsifying certain important documents, in a way that deprives someone else of their property or legal rights. 39
Forgery is a wobbler, so it may be prosecuted as either a misdemeanor or a felony. 40 If it is charged as a misdemeanor, you may be sentenced to up to one (1) year in county jail. If felony charges are brought, you may be imprisoned for sixteen (16) months or two (2) or three (3) years. 41
Another common form of HOA fraud is the practice of steering contracts to a board member’s friends or associates, usually in connection with so-called “kickbacks.” A “kickback” occurs when someone returns a portion of the money they’ve received to someone else in order to receive a benefit they should not be receiving. 42
Example: Barry gets elected to the board of the HOA for his townhome community. The HOA needs to hire a new accountant to audit its financial records.
Barry’s friend Adam is an accountant just starting his own practice. Adam tells Barry that if Barry can persuade the other board members to hire him, he will give 25% of his profits from the work back to Barry. Barry agrees.
This is a kickback, and Barry may have committed HOA fraud.
This kind of kickback scheme can lead to federal charges for mail fraud and/or wire fraud, as long as the defendants used the mail or any kind of wire communication in forming or carrying out their scheme. 43 It could also lead to California state bribery charges.44
Most of the criminal charges that can be filed against someone who commits HOA fraud require that the defendant intended to commit fraud.
For example, the California crime of embezzlement requires specific intent to deprive the owner of the embezzled property. 45 The federal crimes of mail fraud and wire fraud require specific intent to defraud a third party. 46 The California crime of forgery also requires intent to defraud. 47
What this means is that you cannot be convicted of any of these crimes unless the prosecutor can prove…beyond a reasonable doubt…that you intended to deprive someone else of their property unfairly.
Proving intent requires the prosecutor to convince the jury that they know what you were thinking when you allegedly committed a crime. This can be quite difficult. For this reason, lack of intent can be a powerful legal defense to charges of HOA or COA fraud.
The well-known legal defense of mistake of fact can also be helpful in fighting California HOA fraud charges.
Because you generally need to have intended to commit fraud, or have known what you were doing, to be convicted of HOA fraud, you may be able to beat charges if you can show that you were simply mistaken about a key fact. Many innocent facts can be misconstrued as traditional warning signs or red flags of HOA frauds.
In fact, it is often the case that defendants in HOA fraud cases committed their so-called crimes only because they made a mistake…HOA fraud cases often involve defendants who were trying to deal with complicated financial and business matters that were outside their expertise.
In any case, common evidence in these cases include:
As long as the prosecutors cannot prove guilt beyond a reasonable doubt – and that any discrepancies are not due to fraud – the HOA charges should be dismissed.
If you or a loved one is charged with HOA fraud and corruption and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information on Nevada HOA Fraud laws, read our article on Nevada HOA Fraud laws.
1See the website of the Center for California Homeowner Association Law.2See website of Levy, Erlanger & Company (accountants).3Helen E. Roland, Residential Common Interest Developments: An Overview, March 1998, at 2.4Same, at 27. (“Members of CID boards do not receive compensation. The time commitment can be substantial. The job can seem thankless. Board members seldom receive the support of other HOA members. Instead, boards report they only hear from owners when the owners are unhappy.”)
5Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.
6Helen E. Roland, Residential Common Interest Developments: An Overview, March 1998, at 1.
7Same, at 3-6.
8See Civil Code 1350 et seq.
9Civil Code 1351 – Definitions. (“‘Association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.”)
See also Civil Code 1363 – Community association management; schedule of monetary penalties for violation. (“(a) A common interest development shall be managed by an association that may be incorporated or unincorporated. The association may be referred to as a community association.”)
10Corporations Code 7210 – Exercise of powers; delegation of management. (“(a) Each corporation shall have a board of directors. Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members (Section 5034), or by a majority of all members (Section 5033), the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board. The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.”)
11See Civil Code 1363.03 – Elections; rules and procedures.
12Linda Roland, Residential Common Interest Developments: An Overview, March 1998, at 21-22.
13Shouse Law Group attorneys defend clients charged with HOA frauds and all forms of California California fraud crimes.
14Penal Code 503 PC – Definition. (“Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.”)
15 Judicial Council of California Advisory Committee on Criminal Jury Instructions (“CALCRIM”) 1806 – Theft by Embezzlement (such as HOA fraud) (“To prove that the defendant is guilty of this crime, the People must prove that: 1 An owner [or the owner’s agent] entrusted (his/her) property to the defendant; 2 The owner [or owner’s agent] did so because (he/she) trusted the defendant; 3 The defendant fraudulently (converted/used) that property for (his/her) own benefit; AND 4 When the defendant (converted/used) the property, (he/she) intended to deprive the owner of (it/its use).”)
16Penal Code 512 PC § 512 – Defenses; mitigation of punishment; intent to restore property; time. (“The fact that the accused intended to restore the property embezzled, is no ground of defense or mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, or an indictment found by a grand jury, charging the commission of the offense.”)
See also CALCRIM 1806. (“[Intent to restore the property to its owner is not a defense.]”)
18Penal Code 484 PC – Theft defined. (“(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.”)
19Penal Code 487 PC – [HOA fraud as] grand theft defined. (“Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).”)
20Penal Code 489 PC – [HOA fraud as] grand theft; punishment. (“Grand theft is punishable as follows: (a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, two, or three years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.”)
See also Penal Code 17 PC – Felony; misdemeanor; infraction; classification of offenses. (“(a) A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. (b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. (2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”)
21Penal Code 489 PC.
22Penal Code 1170(h) PC – Determinate sentencing. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)
23Penal Code 488 PC – [HOA fraud as] petty theft defined. (“Theft in other cases is petty theft.”)
24Penal Code 490 PC – Petty theft; punishment. (“Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.”)
25Civil Code 1351 – Definitions. (“(a) ‘Association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.”)
26Helen E. Roland, Residential Common Interest Developments: An Overview, March 1998, at 21.
27Corporations Code 8813 – [HOA fraud as] false financial reports or statements; failure to make book entries or post notices. (“(a) Every director or officer of any corporation is guilty of a crime if such director or officer knowingly concurs in making or publishing, either generally or privately, to members or other persons (1) any materially false report or statement as to the financial condition of the corporation, or (2) any willfully or fraudulently exaggerated report, prospectus, account or statement of operations, financial condition or prospects, or (3) any other paper intended to give, and having a tendency to give, a membership in such corporation a greater or lesser value than it really possesses.”)
29Corporations Code 8814 – [HOA fraud as ] fraudulent acquisition of corporate property; falsification of books, records or documents. (“(a) Every director, officer or agent of any corporation, who knowingly receives or acquires possession of any property of the corporation, otherwise than in payment of a just demand, and, with intent to defraud, omits to make, or to cause or direct to be made, a full and true entry thereof in the books or accounts of the corporation is guilty of a crime.”)
30Same. (“(b) Every director, officer, agent or member of any corporation who, with intent to defraud, destroys, alters, mutilates or falsifies any of the books, papers, writings or securities belonging to the corporation or makes or concurs in omitting to make any material entry in any book of accounts or other record or document kept by the corporation is guilty of a crime.”)
31Corporations Code 8813(c). (“(c) A violation of subdivision (a) or (b) of this section shall be punishable by imprisonment in state prison or by a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than one year or both such fine and imprisonment.”)
Corporations Code 8814(c). (“(c) Each crime [such as HOA fraud] specified in this section is punishable by imprisonment in state prison, or by imprisonment in a county jail for not exceeding one year, or a fine not exceeding one thousand dollars ($1,000), or both such fine and imprisonment.”)
33See U.S. Department of Justice, Office of Public Affairs, “Fourth Las Vegas Resident Pleads Guilty in Connection with Scheme to Fraudulently Control Condominium Homeowners’ Associations,” Sept. 23, 2011.
3518 United States Code (“U.S.C.”) § 1341 – Frauds and swindles. (“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”)
18 U.S.C. § 1343 – Fraud by wire, radio, or television. (“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”)
37Corporations Code 8811 – [HOA fraud] as fraudulent issuance of memberships. (“Any promoter, director, or officer of a corporation who knowingly and willfully issues or consents to the issuance of memberships or membership certificates with intent to defraud present or future members or creditors is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment in county jail for not more than one year or by both such fine and imprisonment.”)
39Penal Code 470 PC – Forgery; Signatures or Seals; Corruption of Records.
40Penal Code 473 PC – Forgery; punishment. (“Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”)
41Same. See also Penal Code 1170(h) PC.
42Black’s Law Dictionary (9th ed. 2009), kickback. (“A return of a portion of a monetary sum received, esp. as a result of coercion or a secret agreement <the contractor paid the city official a 5% kickback on the government contract>.”)
4318 U.S.C. §§ 1341, 1343. See also 18 U.S.C. § 1346 – Definition of “scheme or artifice to defraud.” (“For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”)
44See, for example, California Penal Code 641.3, addressing commercial bribery.
45CALCRIM 1806 – Theft by Embezzlement.
4618 U.S.C. §§ 1341, 1343.
47People v. Neder, (2d Dist.1971) 16 Cal.App.3d 846 (“The real essence of the crime of forgery, however, is not concerned with the end, i.e., what is obtained or taken by the forgery; it has to do with the means, i.e., the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud.”)
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