Potential Discrimination Claims

Started by LindaT • 35 replies • 3247 views

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LindaT (Indiana)
Posts: 10

Posted:

I live in a small subdivision of 124 homes; of those 124 homes, there are perhaps 5 children above the age of five. Recently, one mother put up a permanent basketball goal for her son (portables are allowed, permanents are not according to the rules and regulations...which contradict the covenants). The mother was only provided with a copy of the covenants when she purchased her home. To make a long story short, this woman has been singled out for this violation, when other homeowners who are violating other rules and regulations are left alone. Most people opposed to a permanent goal are not opposed to the type of goal, but express sentiments that "they don't want children playing around their homes...and comments have been made (by the board president), that our subdivision is not "child friendly." This mother is expressing that she feels discriminated against because she has a child. I'm going to be on next years board, and was wondering if any of you have had similar experiences, and advice you can give on how to calm the waters. I'm concerned about serious legal consequences against the subdivision if this selective enforcement does not stop.

CharlesW1 (Georgia)
Posts: 826

Posted:

LindaT,

I have not had a similar situation, but I have read many of situations like yours on this discussion forum. I am the Vice President of our HOA and it boils down to it, the board enforcing all CC&Rs, RR and By-laws equally and to everyone in violation regales of who you are.

That is the best advice I can give to you if you are interested in being a board member next year.

I sympathize with this lady, she is being discriminated against.IMO I believe she would have a case if she did decide to take him, personally to court. I would think she could if she wanted to pursue it further.

Keep us posted
Best of luck
Chuck W.

Charles E. Wafer Jr.

PaulH3 (Connecticut)
Posts: 29

Posted:

There may be some missing pieces here. Let me ask a question.

Is she the only one that has erected a permanent basketball goal?

If the answer to this question is “Yes”, then there is no discrimination. If others have erected permanent goals and have not received a notice of violation, then there may be a case of discrimination.

You do state that according to the rules temporary ones are allowed, permanent are not. She clearly violated a rule. Is she absolved from following the rules because she has children?

BrianB (California)
Posts: 2,820

Posted:

This woman might well have a tortable action if there are other infractions of an equal nature that are not addressed by the board, and they continue to address her infraction only. The board needs to follow the advice often given, enforce all the rules, enforce them fairly. Failure to do so will open them up to a potential lawsuit, which they may well lose.

However, she will not have a discrimination claim... Age is a protected class only for elders, not for youngsters... You can, and people do, discriminate against youth all the time. They have no federal rights to protect them from such discrimination.

LindaT (Indiana)
Posts: 10

Posted:

You both make good points. Yes, she is the only person to put up a permanent goal; the two other homes that have portable ones, don't take them down when not in use. Whether they receive violation letters or not...I don't know. This particular mother with the permanent goal also received violation letters for changing her landscape. The covenants say that landscape changes do not need board approval. The Rules and Regulations say landscape changes DO need board approval. I've changed my landscape many times without hearing a peep. This woman moves in and POW...violation. One homeowner (who is on our Crime Watch Committee) erected a shed in her backyard...a violation. But it still stands.

There's no question that I'll be on the board come January, and I hope to convince the other board members (who are currently on the board and will be returning for another year or two) to revise the rules so they enhance the covenants, not contradict the covenants...and enforce all violations against any homeowner regardless of the violation or the homeowner involved. Is that a Pipe Dream?

BrianB (California)
Posts: 2,820

Posted:

i am curious.. you have covenants, rules and regs, and bylaws? three separate documents?
and the woman only received one when she purchased?

Your HOA is setting themselves up to give her lots of money, and an apology... No judge in the world will allow your board to enforce hidden rules. If they weren't provided prior to purchase, then basically, the owner has a tortable action on that too... she bought with the understanding that these certain rules were in effect, and now, the HOA is changing the playing field.

not fair. your HOA will likely lose that argument.

WilliamT (Arizona)
Posts: 489

Posted:

The Rules and REgulations can only explain or clarify a covenant. They cannot add to or subtract from the covenants.

If the CC&R's do not prohibit permanent basketball goals, then the Rules cannot prohibit them.

The lady should respond by certified letter to the management company or the President, asking the board to cite the CC&R that she is in violation of.

HaroldS (Arizona)
Posts: 906

Posted:

The covenants say that landscape changes do not need board approval. The Rules and Regulations say landscape changes DO need board approval. >> You can't make rules that change the covenants. Are you sure you want to be a part of this board which is headed for a legal collision? If so, I would opt to be secretary so you can document everything and be sure to include your dissent. Record the meetings if they allow it. These folks are at personal risk because I doubt your insurance would cover such blatant disregard of the covenants and the selective enforcement you stated. Forget discrimination. There seems to be enough other real choices for this lady to sue if necessary. Harold

LindaT (Indiana)
Posts: 10

Posted:

Wow, this is all very interesting. We have covenants, we have by-laws, and we have rules and regulations (three separate documents). The covenants and bylaws are on file with the county recorder's office (homeowner was provided these documents by her Realtor). The Rules were not provided to the homeowner by her Realtor, but our posted on our HOA website. Supposedly these rules were provided to her after the purchase and when she moved in, but she says they were not. Now the board hand-delivers the rules to new homeowners. As recently as August, 2006, these rules were modified, and the homeowners (including me) weren't notified. Homeowners are expected to view the documents online. We have many elderly residents who don't even own computers.

Yikes!

LindaT (Indiana)
Posts: 10

Posted:

Let me get this straight. If a homeowner sues...they would sue the individual board members? Our meeting is tomorrow night, and I have the opportunity to take my name off the floor at that time. There are three board positions, three candidates. I'm on...unless I get out of it tomorrow.

PaulM (Pennsylvania)
Posts: 1,347

Posted:

Dear WilliamT:
Pls. explain that the 'R&R can only explain or clarify a covenant. They cannot add or subtract from the covenants'. It seems our problems arise ALWAYS by the specifics and the way the R&R are interpreted. Some of our R&R read so specific that perhaps they have expanded on the covenants too much. An example from our Covenant: The HOA is to maintain the landscaping (assume cost for maintenance)...however, the R&R have caused so many problems on whether you can change bushes and if so, what types, and does the HOA pay for maintainence or the home owner pay for it since the owner owns the bushes if they put them in. Is this splitting hairs and/or is this what you mean?

We thought R&R can be made more specific to be better understood than the covenants but it seems we are getting into trouble. Pls. explain how defined the R&R should or can be. And, more important, sez who?
Thanks.
PaulM

BrianB (California)
Posts: 2,820

Posted:

in general, a plaintiff would sue an HOA, just as anyone would sue any business. An HOA is a business. The officers of said business at the time of the suit would defend it. Money to defend, and pay any potential claims awarded, would come from the HOA coffers, or special insurance, if available.

Rarely would a person successfully sue a single named member of a board, UNLESS that single person was doing things outside the bounds of their duties, etc.. (in other words, you will typically sue a company, unless a specific company employee was doing something so outrageous that it was beyond the scope of the company's control, etc.). It is possible that the plaintiff might have a shot at this, more personal type suit. If it were me, I would sue both: the HOA for deeper pockets, and the individual for their assets too.

My advice, join the board. At least, from the inside, you stand a chance to change something. if you remain outside, it's still your money being lost, when the HOA loses.

WilliamT (Arizona)
Posts: 489

Posted:

The CC&R's are the covenants that are attached to your deed. They cannot be amended except by the percentage of community members that are stated in the document itself. Usually that is in the 60 to 75% range.

If the CC&R's cannot be amended except by the Associaion Members by a large percentage vote, then a Board cannot develop a Rule that is in conflict with the CC&R's. That would amount to an amendment to the CC&R's, which the Board is not authorized to do.

That is why the Rules can only explain or clarify a covenant. They cannot add to or subtract from the CC&R's.

If the CC&R's do not state that there shall be no permanent basketball goals, then a Rule that states "there shall be no permanent basketball goals" is adding something to the CC&R's which is not there, and that cannot be done. That rule is in conflict with the CC&R's, and therefore is not valid.

KittyC (North Carolina)
Posts: 22

Posted:

I live in a small development in Chapel Hill which is still being built. There is a rule about no basketball hoops in the front of the house. However, the homeowner who is being paid by the builder to run the HOA on her behalf has a basketball hoop in her driveway. I figured since she has one, I can have one too. However, my neighbors complained that a basketball may hit their car and that my boys will walk on their grass to retrieve a ball. Another neighbor with a very steep driveway tried to put their hoop at the base of the driveway and was told to move it when someone complained. In short, as in all HOA issues, only the complaints are enforced.

KittyC (North Carolina)
Posts: 22

Posted:

If the builder is the head of the HOA, as in my "community", she can use the HOA dues to defend herself against the homeowner's lawsuit.

LindaT (Indiana)
Posts: 10

Posted:

However, if not a basketball...it could be a football, baseball, soccer ball. Kids are kids. They play. Better to have them active in their own yards, than being bored and getting into trouble elsewhere.

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By LindaT on 12/04/2006 10:12 AM

............. The mother was only provided with a copy of the covenants when she purchased her home. ................

It doesn't matter when they were provided to her or even if they were provided to her, the covenants are a legal part of the deed.

That being said, if she feels that her basketball goal is permitted by the CC&Rs, she should request a hearing with the BOD or ACC or whatever group issued the violation notice. If "portable" goals are permitted but permanent goals are not, then she was clearly wrong to install a permanent goal. The easiest and best solution is for her to remove the permanent goal and replace it with a portable goal. She may be able to buy a portable base for the goal. Lesson learned; read the CC&Rs before you do anything that would violate them.

If she feels that she is being singled out, she should present evidence of other member's violations to the BOD and ask for an explanation.

Ron
SC

CharlesW1 (Georgia)
Posts: 826

Posted:

KittyC,

I will be reading along, as you receive advice. I’m in the process of learning myself. I will suggest using the search box in the right hand corner of the page to search for previously discussed posts. I would suggest taking your hoop down and then I would look into why your neighbor is still in violation.

Just because she is in violation doesn’t make it right for you to be too!
Is the builder still building in your community? Have you gotten a violation notice yet?

Here is an analogy for you to think about. We both know speeding is illegal but if you knew in advance that you would not get a fine, even thought you were speeding too, would that make it right for you to continue to speed? HMMMM

Keep us Posted
Chuck W.

Charles E. Wafer Jr.

LindaT (Indiana)
Posts: 10

Posted:

Thank you Ronald

As clarification, our covenants make no mention of basketball goals (portable or permanent); the closest thing to basketball in the covenents is: "board approval shall not be required for the installation of playground equipment."

That's what this lady relied upon.

I'm so leaning toward jumping off this train before I even pack my bags!

GlenL (Ohio)
Posts: 5,491

Posted:

Then she should send the Board a letter citing that section and ask them for a clarification of where it says in the Declarations that attached basketball hoops are not allowed. You shouldn't give up running for the Board; it's easy from the safety of your armchair to sit back and complain about the "dictators" on the BOD it's quite another to sit on the BOD and get the whole story. If you think things are being handled improperly, work to change them. Don't let the threats of being sued scare you, if I don't hear that at threat at least once every couple of months, something isn't right. Whenever a homeowner threatens to sue me over being told they have to comply with the CC&R's, I ask them if they would like me to spell my name for them. As long as you have good D&O insurance and act in good faith to follow the law and your CC&R's you'll be fine.

Studies show that 5 out of 4 people have problems with fractions

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By GlenL on 12/05/2006 11:20 AM

Then she should send the Board a letter citing that section and ask them for a clarification of where it says in the Declarations that attached basketball hoops are not allowed.

Or ask to appear in person at a board meeting to discuss it. I would be polite and not argumentative but I would have photos of every other basketball hoop in the development when I go.

There's a popular saying that "It's easier to ask forgivness that to ask permission." Not so. If you get the reputation of trying to "sneak one by" on the HOA, you're likely to be watched very closely. The best policy is to submit an application for any change that could possibly become an issue and to ask the board if an application is required if you're not sure.

Ron
SC

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By LindaT on 12/05/2006 9:44 AM

Thank you Ronald

As clarification, our covenants make no mention of basketball goals (portable or permanent); the closest thing to basketball in the covenents is: "board approval shall not be required for the installation of playground equipment."

That's what this lady relied upon.

It could fall under the jurisdiction of the ACC or whatever it's called in your development depending on where it's placed.

Ron
SC

BrianB (California)
Posts: 2,820

Posted:

Ron, you are correct that a board could try to rule that it is under the perview of an ACC, or so... I would then argue that the plain statement in the covenants (no board approval required) absolutely applies to the board and any smaller body formed from the charter of the board (ie, any group that derives its' powers from the board IS the board when it comes to legal issues). That would be my first line of defense, should the arguement be presented.

LindaT (Indiana)
Posts: 10

Posted:

well, it's official...I'm on the board. Thank you all for your wisdom and advice. The other returning board members pretty much attempted to prevent me from board membership because I don't agree with their methods...my next two years will probably be hell. They implied at the board meeting that they will be changing the rules regarding landscaping (one score for me), and they held a vote on whether permanent basketball goals would be allowed (though it was apparent they were lobbying for votes against the same.) Basketball neighbor has until March 15th to attempt to get those who didn't vote to vote in her favor. I can't believe that such a small snapshot in your life can be such a big deal...but I guess I'm learning. Again, thank you for your input and guidance. I will be visiting this site often over the next two years.

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By LindaT on 12/08/2006 8:09 PM

well, it's official...I'm on the board. Thank you all for your wisdom and advice.

Linda, I think you'll find your experience on the board much more pleasant and productive if you try to work with the other members rather than against them. Discuss the issues and try to come up with a solution that's best for the neighborhood in the long run.

Four of our five members were elected the same time I was because one had quit. One was nominated by the neighborhood "troublemaker" and I was worried about working with him. He has turned out to be a thoughtful and fair minded person and a big supporter of my ideas.

Ron
SC

ChadK (North Carolina)
Posts: 43

Posted:

Permanent? Does the Bylaws, Articles of Incorporation, Declaration, or State Law define permanent? If not, she can argue that the basketball goal can be removed. Removed with the aid of a 250 lbs man? with the aid of a bull dozer? If there is no definition then the basketball goal is temporary in definition. Call me and I will remove it for her at a moments notice to prove to the HOA that it is not permanent. Have diesel tractor...will travel.

As far as not being "kid friendly"...who the hell do they think they are? I think she should tell them that the hood is not "old fart freindly".

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By ChadK on 12/09/2006 10:40 AM

Permanent? Does the Bylaws, Articles of Incorporation, Declaration, or State Law define permanent? If not, she can argue that the basketball goal can be removed. Removed with the aid of a 250 lbs man? with the aid of a bull dozer? If there is no definition then the basketball goal is temporary in definition. Call me and I will remove it for her at a moments notice to prove to the HOA that it is not permanent. Have diesel tractor...will travel.

As far as not being "kid friendly"...who the hell do they think they are? I think she should tell them that the hood is not "old fart freindly".

Chad, arguing the meaning of "permanent", challenging the BOD, etc. is not going to make for pleasant living in the neighborhood. If it's set in concrete, it's as permanent as a structure. If it cannot be put away after use, it's "permanent".

Suggestions have been made on how to deal with this situation as adults. In the end, how we treat our beighbors is how we can expect to be treated ourselves.

Ron
SC

LindaT (Indiana)
Posts: 10

Posted:

Thanks to all for the posts. I intend to work with the board, but will stand my ground when needed. I've thick skin. AND, the basketball owning homeowner could remove the goal and turn the pole into a teatherball...which would be no violation. This is all a snapshot in time...in my neighborhood...there are bigger fish to fry...and I'm the gal with the grease. :-)

RonaldW (South Carolina)
Posts: 901

Posted:

Posted By LindaT on 12/09/2006 8:43 PM

Thanks to all for the posts. I intend to work with the board, but will stand my ground when needed. I've thick skin. AND, the basketball owning homeowner could remove the goal and turn the pole into a teatherball...which would be no violation. This is all a snapshot in time...in my neighborhood...there are bigger fish to fry...and I'm the gal with the grease. :-)

One reason I agreed to run for the board was to find out what is going on. Another was to protect my interests in keeping the community as nice as it was when I bought my house.

It's good that you were elected, I think it will be a positive experience. You won't win every time, but by discussing the issues and compromising when appropriate, you will gain the respect and trust of the others. Study the CC&Rs before your first meeting so you will know what you're talking about. Best of luck!

Ron
SC

LindaT (Indiana)
Posts: 10

Posted:

Well, here I am. Almost one year under my belt as a board member...thou not the most "loved" board member because I refuse to be a member of the girls' club and I have a mind of my own. My current issue is this: Board pursued basketball homeowner legally. I strongly objected to the use of monies to pursue someone with litigation over a basketball goal. I've worked for law firms for over 25 years, and I know litigation is unpredictable. In a very honest and direct email, I advised the board members of the same and that I was embarrased for pursuing this woman when another homeowner was six months behind on his association dues (owner of two properties). Priorities...right? The other board members took exception to my email and called me to the table at the last board meeting and said that I was not respecting my fellow board members. The draft meeting minutes from that day totally excluded my lashing and my response. I've advised them that if my decisions and opinions as a board member are going to be called into question, then it needs to be recorded in the minutes. I even asked them to attach the email that was so upsetting to them. Tonight, I received a copy of the board minutes (2 pages) but was only supplied with page one...which did not include my lashing or my email. And, the first draft did not include our attorney's advice against further pursuit of basketball woman. Our homeowners are not being provided with complete and accurate minutes taken at board meetings. How should I handle this?

BradP (Kansas)
Posts: 2,640

Posted:

Linda:

Were the minutes approved? At your next board meeting when they ask you to read the minutes and approve them you need to state your objection for the record that it does not include the lawyers advice and your objection about pursuing this action. I would write your board an email asking where this information is and keep a copy for yourself.

HaroldS (Arizona)
Posts: 906

Posted:

I am surprised you are on the board. I thought you were having second thoughts back then. I think someone suggested if you got on the board to request being secretary so you could include your dissension in the minutes. They must correct the minutes - that is the purpose of reading the minutes. Harold

Jadedone4 (Virginia)
Posts: 495

Posted:

Linda, purchase Robert's Rules of Order (your community meetings may not HAVE to be run using this tool, but you can argue that it should).

Enter motion at next meeting to amend the minutes with the sections omitted. If any objections arise, politely inform the board (in open meeting and as such minutes are being taken) that board decisions are to be included in all minutes (unless executive session), and are subject to discovery (subpeona). If that fails make another motion protesting the action of the board, so that it is duly noted in the official record.

Your goal is to make "note" of the action, you do not have to have every sentence, gesture, etc in the minutes, just the note that this occurred, and the nature of the event, for it to be recordable.

CathyT1 (Washington)
Posts: 68

Posted:

Did the woman (permanet bb goal) sue the HOA or the HOA sue the homeowner? What is/was the outcome of that particular issue? I'm curious how it was handled by the HOA/Board. Thanks.

LindaT (Indiana)
Posts: 10

Posted:

Just like the goal owner said she would do...she took down the backboard, left the pole, and changed it into teatherball over a year ago...not in violation of the rules...and it remains erected to this day.

I resigned my post quite some time ago. I became discouraged over the activities of other board members, i.e., calling one neighbor who expressed an interest in running for a board position to talk her out of it...because she was too popular, and the neighbor they wanted to be elected to a board position might not get elected if the "popular" neighbor put her name into the hat.

They also became frantic because a more elder neighbor expressed an interest in being part of our crime watch team...because she was too erratic and would be calling the police for every little thing. I couldn't take it anymore.

Good news is this...most of those board members have now been replaced.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Linda - just an additional note:

"draft" minutes are not official minutes until they are approved by vote of the Board. Draft minutes should be clearly marked as DRAFT.

If you were missing page 2 of the minutes, you should have requested them. You could have voted to not approve the minutes until you saw them in their complete form.

The minutes should reflect ACTION of the board, not discussions, etc. So if there was no ACTION or decision from all that discussion, it would not necessarily be in the minutes, except perhaps "There was discussion on the basketball aparatus at @#@# XYZ Street. No action taken."

I know you are no longer on the board, but the above may help to sooth your feelings.

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