Posted:
Ann,
I think we can all agree that sometimes there is no other choice than to appeal to the local, state or Federal governments in order to get justice. What we seem to be debating is just when exercising that option is a reasonable action in resolving conflicts in a common interest development.
Let me address your points with an alternate view, just for the sake of a well-rounded presentation of the issues. (Your comments in italics):
The point is that boards have legal recourse. Whether those means provided to boards always produce satisfactory results, isn't the point. The laws, courts, and lawyers are there for boards. That isn't the case for owners. An unpaid fee is not comparable to mold being allowed to grow in a member's unit.
Increasingly, at least in California, the ability of HOA boards to enforce CC&Rs and Rules & Regulations is eroding due to legislation pushed forward by as few as one person with an axe to grind, often buried in another bill - so much so that ECHO (Organization of the Executive Council of Homeowners) has to lobby in the state capital to fight some of these. and it's not because the state backs BODs - it's actually the other way around. legislators and courts tend to favor the individual homeowner "victims" here, despite the fact that they signed agreements to abide by the laws, the bylaws, the CC&Rs and Rules and regulations when they moved in.
In the case of owners who have problems with their boards there are few and often no options open to them. Theoretically, owners can petition their boards, but often times they are ignored.
How many legal petitions have you actually seen, properly written and presented to any board with which you are acquainted? I just saw my very first one, after 24 years of living here. I've seen plenty of people bitch and complain, but this is the first petition ever delivered to the BOD. Here in California, the homeowners are in control. It only takes 5% of the total voting power of the association to force the BOD to schedule a special meeting of the membership, and if the BOD does not announce the date within 20 days, the homeowners themselves can set the meeting date, and conduct the meeting with or without the BOD present. They can kick one or all of the directors off the board, and replace them with new directors.
They also have the option, in theory, of removing the board and serving themselves. There, too, the incumbents have the leverage, because they have the history and the control over the association funds with which they buy patronage. So, in reality, if a board wants to stay in power forever and wants to keep off those who disagree with them, they can and they will....
It's not in theory, if the statutes are in place to provide the steps required. I'm going to assume that in your case, the option is there, except you believe that the option is worthless, because your fellow homeowners allow themselves to be bought, cowed or manipulated into passivity. Whose fault is that?
On the issue of suing that, too, is technically an option; but the reality is that many condo owners are elderly and people who chose to live in condos, in order to avoid hassles.
Where on earth did they get the idea that buying a condo would mean that life would no longer present hassles? And where in your governing documents does it say that elderly people can somehow buy a home in a CID and by doing so, they no longer have to take an active interest in their own communities, or in safeguarding their own investments?
Even if they can afford the thousands of dollars it takes to sue and if they have the time to wait for their case to work its way through the courts, it is unlikely the courts will get involved.
First of all, the homeowners can take control of their associations, one way or another, by acting together. They can't do it individually, nor should they be able to. But they certainly can't do it by wringing their hands, or playing the "what's the use?" card. I've seen entire boards resign, because infuriated homeowners mobbed the board meetings and made so much noise that no business could get done, and in one voice, demanded that the president of the board and 3 directors resign (they did, right then and there), and guess what? This was free and immediate.
The courts will not hear suits that deal with most of the complaints owners have with their associations.
On what evidence do you base this sweeping generality?
So, many owners go passive. They don't participate and they retaliate by acting out in small petty ways.
So...people will behave like petulant children if they don't get their way? And this accomplishes what?
People are not going to show up to meetings at which they feel they are going to be put down, disregarded and bossed around.
In other words, people will give up all rights to even hear how their investments are being handled, if they aren't treated a certain way in the meetings? They will simply stay away, preferring to remain in ignorance, while other people decide everything? This is excusable, and therefore, these poor victims need the government to step in to treat them even more like children? Have you ever heard the phrase, "We're from the government. We're here to help you."?
In my experience unresolved conflict and poor management just turn people off. Organizations that are well run and have worked on many levels to involve their members have better participation. People participate in organizations they feel emotionally connected to--not that just fit into their schedules.
If you make a huge financial investment (and for most people, purchasing a home is the biggest investment they will ever make), you are 100% responsible for that investment. No elected official, or randomly-chosen group of homeowners, can take your place in watching over it. And if you don't bother to first take action to sound the alarm to your fellow homeowners, and drum up support to circulate a legal petition to force the board to hear your complaints and change their ways, exactly how and why should the government intervene?
There is a role for government oversight in these matters, because they are not like corporations and small governments. These are people's homes, their life's savings and their daily lives that are impacted.
I'm not sure what you mean here. Most associations are corporations, and especially in condominium associations, each member owns a share of the assets. If that is the case, there are already plenty of laws in place that govern corporations, and if boards of directors violate the corporate laws, then they can be sued, prosecuted, removed from the board, or all three.
What you seem to be saying is that people buy a share in a common interest development as an investment, legally take on all of the benefits, obligations and encumbrances that come with that it, but then need to be protected by the government from the risks inherent in making the investment. How exactly can that possibly work?
Perhaps if boards knew they could be held accountable in public for their actions and decisions, they would be be more likely to adhere to the spirit as well as the letter of the law.
The letter of the law is all that matters. there is nothing in any law or governing documents that I've read that says board members must be pleasant, friendly and agreeable in meetings. If the board that has obviously given you such a sour taste in your mouth literally followed the letter of the law in all of their actions, would we even be having this conversation? I only ask because the number one law that boards have to follow is that they must honor their fiduciary responsibility to the homeowners. In order to do that, they must stay educated, seek legal counsel and input from the homeowners, get competitive bids, balance the books, and all of the other responsibilities that come with the privilege of serving as directors - including get elected by some sort of majority. If they did all that, I doubt anyone would even want to run against them, much less replace them with someone chosen at random. How would the government stepping in because they needed charm lessons possibly improve this situation?
If boards were really on the up and up, they wouldn't be afraid of ombudsmen and conflict resolution. They, too, would support it. The fact that boards and their attorneys are so eager to fight these efforts strongly suggests they have a great deal to gain personally and to hide....
So, boards should dedicate not only their free time to their associations, attending board meetings, executive sessions, dealing with deadbeat homeowners, fielding endless emails, deciding what do do on dozens (if not hundreds) of action items each month, but they should what - take time off from work to attend arbitration hearings, even if against the advice of the association counsel?
OK, can we now please hear the full story? Both sides of it? What happened that has pushed all of your buttons? What have you tried to do, that you are now so frustrated that you feel the only remedy is to call in the cavalry?
I'm sorry if I seem heavy handed here, but as you can probably tell, I have very little patience with people who don't read the fine print when they become partners with a bunch of other people, then want the government to bail them out when they realize that they are going to have - yes - hassles to deal with as a result of their decision to opt in.
Rob
