BOD who are not BOD

Tish,

As many have said on this site, you can sue anyone for almost anything. I am not an attorney and I do not work in the legal profession. I also haven't read all of your posts or the case. However, the following are things to be aware of when you sue your homeowners/condo Association:

Win or lose the following things could happen:

1. You will be responsible for your share of the Associations legal costs. This is because the Association will use the Association money to fight a legal battle and as a member of that Association you have an obligation to pay your fair share.

2. HOA's have insurance to cover the decisions of the Directors and Officers of the Association. Therefore, claiming breach of fiduciary duty in a law suit will have the insurance company be involved. This may lead to higher premiums in the future. Higher premiums can result in an increase in Annual Assessments.

3. Most States have laws on the books that say as long as the Board was acting in good faith it's not a breach of fiduciary duty. It's just a bad business decision (which will probably be what you will have to prove in court, that it wasn't a bad business decision made by volunteers who don't have the proper training but that they knew what they were doing was wrong).

Tish,

From what I understand based upon what you have posted, the judge ruled that the assn is voluntary. That means you do not have to join if you don't want to. The fact that your property may be one of the ones with deed restrictions has no bearing on whether you are a voluntary member of the HOA or not. Did the judge rule that the original 29 lots are part of the same s/d as the additional 150 lots? If so, then the board of the HOA can issue violation notices to anyone violating the covenants whether they belong to the HOA or not but they must have those deed restrictions on their property. In other words if your deed does not say it is subject to deed restrictions then you are not required to abide by them. The HOA cannot be voluntary for one group of property owners and mandatory for another group. If you don't want to be a part of the HOA then don't join. It's as simple as that.

If you could post the court case, or a link to it, that would be most helpful. It seems to me you are confused about the judge's ruling as you keep posting about this issue and have started several new threads about it. If we could read the whole case we may be able to shed more light on exactly what the judge's ruling means.

Sorry Mary, I got the judgement copy. The HOA published in their email notification that is how the judge ruled..that was their legal arguement. However what the judge actually ruled was the bylaws stand, and the vote to add all the properties could not be challenged due to the statute of limitations. Additionally, she ruled that the association was the same as the one on my deed, again the HOA argued that the corporate dissolution did not effect the assets of the corporation.

The bylaws say mandatory, but list all these properties random properties and plats.

I think I have got this figured out though. The association is mandatory. The corporation is the same as the one on my deed. The CCR's on my property definition of member stands. The vote was valid, but the declaration for the other plats was not changed and CCR's were never recorded against the other properties within one year from the date of the vote. The bylaws were filed, but testimony was given by the HOA that they never intended to create a covenant (declaration by former president) The CCR's on my deed do say "Plat 1 and Plat 2 are eligible for membership" however that offer only extends to the original owners of the Plats, it is not an open offer for eternity to future owners or individual owners because the added plats would have to have their declarations changed. The original plat for my developement the beach was dedicated to the community and listed the CCR's, but granted no other easements to the park for anyone else.

I guess the moral of my story, is carefully listen to the judge. You may have asked the wrong question and they will try and steer you down the right road. Sometimes you win by losing. The HOA still thinks they won.

Now I just have to get the real HOA to act.

I skimmed through the Rainier View Homeowners Association V. Zenker. Its very, very complicated. The developer made lots of mistakes.

Correct me if I'm wrong.......

From what I can tell, the developer who created the subdivision made 3 phases. He granted the 2.4 acre beach/park to phase 1. But he messed up the legal paperwork on granting that same right to phase 2 and 3 but sold the lots telling them they had the right.

Mary,
The subdivision has 4 sections consisting of 540 homes. Section 1 amended and restated their Covenants at 30 years and each lot is converting to a manditory assessment upon a title transfer. Sections 2&3 can not amend their Covenants until 30 years (couple more years) and are currently voluntary. Section 4 has no Covenants and no membership in the HOA. It was supposed to be a shopping center but instead has 22 homes.
Just an illustration of how we should never generalize based on past experiences. But I still do it

Tish, you mean he added more people beyond phase 3?

Roger,

I'm still confused; if each section has separate CCRs how can they all be a part of the same HOA? Even if this is a master community each individual section would have it's own HOA together with the HOA of the master community and only the master community's HOA would have members and nonmembers. Am I missing something?

I try not to generalize but of course we base our opinions on what we've learned and I've never heard of this before. I've been very involved in HOAs for over 13 years and am still learning!