Awkward!!!!!!! As Owner Fights Condo Association, He Sits On the Board
- Housz
- 16 hours ago
- 6 min read
July 2026
A California court has ruled in favor of a condo that opposed one of its owner's attempts to convert his garage into an accessory dwelling unit. Here, we briefly report on the case.
We also broaden the discussion to focus on the twist in this litigation. News reports say the owner who was being sued by his condo was a board member—a vice president, in fact.
So, in addition to explaining what happened in California, we ask our experts for the practical steps they suggest their condo or HOA board clients take when one of their own is on the other side in litigation.
What Happened in California
The California dispute was between a condo owner—who also happened to sit on the board—and the condo association. The owner, Adam Hardesty, lived in a condo six-plex and tried to convert his garage into an accessory dwelling unit. The owner's condo, the Mystic Point HOA, in the San Diego area objected.
A text from a board member Mike Cartabianco to the owner said the ADU would be unprecedented, and an influx of ADUs and a loss of garages could change the fabric of the community and worsen parking. He told Hardesty those and other reasons meant he'd have “an uphill battle” getting approval to build the unit. Hardesty persisted and sent the board a letter of intent.
The condo filed a lawsuit against Hardesty to prevent the project from moving forward.
To ease California's affordable housing crunch, in 2019, its legislature has opened the door to many new opportunities for homeowners to build small residences on their existing property, called ADUs. An open question has been how the laws favoring ADUs affect condos and HOAs.
Hardesty argued that the new law overrode the HOA's governing documents, which banned the use of owners' garages for anything other than car storage.
In its lawsuit, the condo didn't do a full-on challenge of the law's applicability to condos and HOAs. It instead conceded that the law may trump some HOA documents, perhaps those zoned for single-family residential use. But Mystic Point was a condo, and therefore, the association argued, not subject to the law.
The court held that if the California legislature had wanted the law to cover condos, it could have simply said so by stating that explicitly in the language of the statute. It noted, however, that an appellate court may overturn its interpretation of the law and hold otherwise. But it's not a given the case will get appealed. Hardesty estimated that he and his wife spent about $100,000 on permits, breaking ground, and legal fees, leaving no resources for an appeal.
What About That Defendant on the Board?
Our experts' experience on board members involved in litigation with their condo or HOA is mixed.
“This happens all the time—all the time,” according to Carolina Sznajderman Sheir, a partner at Eisinger Law in Hollywood, Fla., which represents 600-700 associations throughout the state, who is board certified in condo and planned development law by the Florida Bar.
“It could happen for a variety of reasons,” she explains. “It could be that a unit owner engaged in litigation with the association ascends to the board by election. It could be that a board member has suffered some sort of injury that's actionable while in office. It could be the board member is in the minority of the board and takes action against the association. It happens a lot.”
It's thankfully less common in the practice of Evan M. Alexander, a partner at Makower Abbate Guerra Wegner Vollmer PLLC, whose firm advises nearly 2,000 association clients throughout Michigan. “It's fairly rare,” he says.
“But I have seen it before,” adds Alexander. “The one that most comes to mind is where the board member likes to think of themselves as some semblance of attorney due to ChatGPT or AI sources, and they're generally, confidently wrong.
“The issue was the responsibility for water damage,” he explains. “The rest of the board, the management company, and our firm all explained the governing documents to them, and they didn't like it. They sued the association.
“A different attorney at our firm is handling the litigation,” notes Alexander. “I believe if it hasn't happened already, the case is extremely likely to be resolved in favor of the association in a summary motion.”
Keeping the Board Member From Them Getting Information They Shouldn't
The key in this situation is to identify the obvious and the not-so-obvious conflicts of interest involved.
“That's kind of tricky,” says Robin Strohm, CCAL, a partner at Williams & Strohm LLC in Columbus, Ohio, who has represented condos and HOAs throughout Ohio for more than 20 years. “You have to basically carve that board member out of any communicating regarding the lawsuit. And in discussions of the litigation at board meetings, they have to recuse themselves.”
It's possible the board member could also have a conflict with other matters the board oversees beyond the litigation. Your lawyer can help you identify those.
“The first thing I take a look at is our conflicts of interest statute and the procedures for identifying those conflicts,” says Sheir. “In Florida, the condo statute has very well-laid-out conflicts provisions. It covers what's presumed to be a conflict, how a member is supposed to act when there's a conflict, and how that needs to be disclosed to the membership.
Julie G. Hamner, a senior litigator at Kaman & Cusimano, LLC, in Brentwood, Tenn., who's been bringing her 30 years of litigation expertise to community associations for the past two years, would suggest the board member ask the member to resign. “I think this is clearly a conflict in which, at the very least, that member should recuse himself from any matters that directly relate to that litigation,” she says. “Depending on the nature of the litigation, that could be any action the board members take. So, the best thing would be for the board member to resign.”
The board member could, of course, refuse. “I don't know if there are any specific statutes that require the recusal,” she states. “For instance, I'm not sure if there's anything in the Tennessee nonprofit act that would require resignation. We'd have to go to the governing documents to see what recourse the remaining board members or the association as a whole has for removing a board member.
“But definitely ethics principles that would support recusal,” says Hamner. “There's some potential for fiduciary breaches. And the optics are bad, so resignation should at least be suggested.”
Creating a Committee to Oversee the Litigation
Our experts say a legal committee could be a smart move. “Often, that board member can continue to stay on the board and address daily operations, except for those matters for which that board member may be conflicted,” says Sheir. “So, we look at how we could have that board member be recused or walled off. Generally, we create a legal committee—maybe it's other board members and other owners—to review and make recommendations as to the matter without involving that particular board member.
“We had a recent situation where the entire board was conflicted,” she adds. “The entire board were plaintiffs and became board members. As a creative alternative, we requested that the court appoint a third-party disinterred person—we couldn't come up with a legal committee in that case—to step in as a fiduciary and make decisions on this matter where there was a conflict.”
Alexander would also suggest creating a committee to oversee the litigation. “We don't need that board member to have information about the association's strategy in the ligation or to hear the advice the association is getting pertinent to their claim,” he notes. “We've advised the board to create an executive litigation committee consisting of board members unrelated to the litigation. It ends up being a board decision to create the committee and exclude the opposing party from it.
“Usually, if the board consists of five members, the committee is the rest of the nonconflicted board members,” says Alexander. “But in general, I'd like the committee to be at least a majority of the board, so their decisions are at least a majority of the board. Then the advice we give to the association is discussed only during that committee's meetings and not included in minutes.”
It's possible, despite your efforts, that your conflicted board member might inadvertently see or hear protected information on the litigation. “Board members in this situation need to be cognizant of the fact that they're in litigation and that there's information that shouldn't be shared with another board member,” says Sheir.
Strohm agrees. “If there are legal documents sent to the board before the lawyer files them, those will be sent only to the other board members to preserve attorney client privilege and to make sure the board member in litigation isn't privy to that,” she says. “Part of that depends on the other board members being careful with the information. But I haven't seen them mistakenly send that information. It doesn't mean it couldn't, but knock on wood, it hasn't.”
Comments