An Editorial on Being A Board Member

Having been a Board member once when we had a most difficult decision to make as for how the community documents would be enforced, was as at best, extremely difficult on a personal level. After polling the members, they (the community)were split on how to persue the issue. The Board members were actually open to going either way--going to court or dropping the issue. Either way, it was very stressful on the Board members.

On one hand, the lawyers in the association threated to take the Board to court for not following the documents thru with enforcement. On the other side was all of the members who might have been in the same situation as the non compliers and were sympathetic to their cause.

It was a plain case of following our fudituary duty to enforce the documents, even tho we all felt that the covenant was written poorly and should have been changed somewhat. There was no time to change with an amendment and this would not have removed the lawsuit already started by the complainers.

I am sure that many of you Board members have dealt with these difficult situations. You are Damned if you do and Damned if you don't.

Reading one of the current posts, I think that the Board is not being given any understanding for what they are going thru. They might feel passionate about the situation, they may feel obligated or even handcuffed into getting this over. And their reward is a recall. How sad it is that this cannot be worked out like gentlemen.

Susan,

The non compliance started a year before the Turnover from the Developer. He did not enforce the covenant. Upon turnover, some residents requested that he change that cov and he refused. The Board inherited the violation. Once a member (lawyer) moved in next door to this violation, she demanded it be enforced. Thru all means available to us, we were unable to reach a resolution with the violator nor the complainer. So, then what? The Board was as involved in attempting so proactive was not even an issue.

In fact you could say that CCR is unenforceable due to the actions/inactions of the developer in the past.

Janet,

The way I interpret the CO statute is that the action would not be enforceable against a particular member not necessarily not enforceable at all. In other words, if John Doe made an improvement on his property that was against the CCRs but the HOA did not send a violation notice until one year had gone by, then the violation would not be enforceable. However if another member committed the same violation and the board noticed it right away then that violation would be enforceable.

Hi Mary:

Everyone needs to be sure when reading statutes that you read every word carefully and fully understand the definition of each word. When in least doubt be sure to check the definitions. In the statute we are referencing I have bold the word most people miss or do not fully interpret when reading (including probably some attorneys )

(2) Notwithstanding any law to the contrary, no action shall be commenced or maintained to enforce the terms of any building restriction contained in the provisions of the declaration, bylaws, articles, or rules and regulations or to compel the removal of any building or improvement because of the violation of the terms of any such building restriction unless the action is commenced within one year from the date from which the person commencing the action knew or in the exercise of reasonable diligence should have known of the violation for which the action is sought to be brought or maintained.

main·tain (mn-tn)
tr.v. main·tained, main·tain·ing, main·tains

1. To keep up or carry on; continue.
2. To keep in an existing state; preserve or retain.
3. To keep in a condition of good repair or efficiency: maintain two cars.
4.
a. To provide for; support.
b. To keep in existence; sustain.
5. To defend or hold against criticism or attack: maintained his stand on taxes.
6. To declare to be true; affirm.
7. To adhere or conform to; keep.

As I stated earlier it would not be fair and equitable treatment for someone to get away with breaking a rule, then only they are allowed to keep the violation because due diligence was not performed. The rule should either apply to everyone or not equally.