A service of:
Community123.com
Professional websites for HOAs & condos, since 2004
🎁 1st year FREE for HOATalk members! →
← Return to Topics List

Unsanctioned HOA BOD?!?!?!

Started by DorieW • 22 replies • 2556 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

DorieW (Tennessee)
Posts: 52
Posted:
In 01 my subdivision developers recorded at the Register of Deed's office a legal document titled Restrictive Covenants.

This document states that no amendment can be made to it unless 75% of the owners signs an agreement allowing for the amenement.

Then the amendment needs to be made through hiring an attorney and for the ameneded version to be recorded for a fee at the Register of Deeds' office.

Well, a person who moved into this neighborhood a few years ago apparently had a set of ByLaws drafted and this person signed themselves on the ByLaws under notary public as the president of this subdivision.

No one in this neighborhood has ever seen or signed an agreement for this to have happened.

Then, this person (I have this on recording) appointed another person in the subdivision as their presidental successor, they hired a property management company, cherry picked a few other people to serve on this unsantioned board and have been fining and suing like crazy.

Anybody delt with a messed up situaiton like this and is it criminal?
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Criminal? Not likely. You would have to have a lawyer look over all of your docs. They may be correct and enforceable.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Dorie,

From what you have posted, it sure sounds like a dictatorship to me.

But, is it criminal? Probably not. Most HOA laws that I know of provide for civil, not criminal remedies, meaning you can't call the police and have somebody arrested. To make them stop what they're doing, you, or someone, or a group of you, would have to file a civil suit in court. Then, you would have to prove that they have violated the law and that you have been harmed as a result.

I think the first thing to so is to read your documents and applicable state law carefully to see if what was done was in accordance with the documents and the law. Then, go from there. What do the covenants have to say about drafting bylaws? What does the law have to say? Were the bylaws drafted while the subdivision was still under control of the developer? Usually, while under developer control, the developer can appoint anyone he wants to the board and can appoint whomever he wants as president. Was the association transitioned from developer control to homeowner control in accordance with the governing documents and the law?

You need to have a documented history as to how the association got from where it was in '01 to where it is today.
HoaC (Florida)
Posts: 95
Posted:
Well, this could be a criminal act, if he is collecting $$ from the members and not appropriating it in a lawful manner. This is called scamming and theft.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By HoaC on 07/18/2011 9:23 AM
Well, this could be a criminal act, if he is collecting $$ from the members and not appropriating it in a lawful manner. This is called scamming and theft.

Or embezzelment or fraud.
GlenL (Ohio)
Posts: 5,491
Posted:
Or still under Declarant control. Dorie, if the HOA has been turned over to the homeowners, then the HOMEOWNERS need to get off their collective butts and remove the Board and replace them with people willing to follow the covenants if you and your neighbors think they aren't.

While you require 75% to change the covenants you didn't post what it takes to change the By-Laws, in some communities it requires a H/O vote in others the Board has the power to do it. And no, unless they are somehow pocketing the money, it doesn't sound criminal. It sounds like someone got concerned enough to get involved and the people who weren't following the CC&R's are upset because someone is holding them accountable for their actions.
Studies show that 5 out of 4 people have problems with fractions
SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Have you tried your registry of deeds web site to look up paperwork recorded by the developer, HOA? Look up the names of everyone involved. Its possible the developer set this in motion. Most of the time when you have a property with Restrictive Covenants you need someone to enforce the covenants, otherwise it makes no sense to have the covenants in the first place. This is why an HOA is formed.

PS. Anyone can start a voluntary home owners association. I can start one right now, accept dues and give everyone a nice newsletter. Doesn't mean people are required to pay me.
TimB4 (Tennessee)
Posts: 21,061
Posted:
Dorie,

Glen asked the correct question. Are you still under declarant (developer) control?

Tim
MelissaP1 (Alabama)
Posts: 13,836
Posted:
You said by-laws and not CC&R? By-laws don't have to be filed. So I would go to the Records department of your courthouse to see what is on file there. You can't be in charge with just changing by-laws.

This is going to have to be a GROUP thing if you are to succeed in ANY actions. I'd consult an attorney and make sure you have enough interested parties to pursue actions. Otherwise, as an individual your success may be limited and still have to have a new board to replace the other one. A HOA doesn't run by itself it is run by it's members...
Former HOA President
DorieW (Tennessee)
Posts: 52
Posted:
The CC&R's state NOTHING about ByLaws.

Here is a clause from the CC&R's that cover the transfer from the developer to the owners:

"the owners shall transfer managment of the Homeowners Association to a Manageing Committee. Said Managing Committee shall consist of five persons, each of whom must own at least one lot in the subidvision, and who shall serve and act on behalf of theHomeowners Association until such tim as their successors are elected by a majority of the lot owners in said subdivision, each lot owner having one voet per zero lot. Themembers of the Manageing Committe shall be appointed by the owners. The rules, regulations and schedule of payment, sincluding late fees for thoes not paying on time, established by the owners shall be continued by the Manageing Committee but may be changed from time to time by a similar majority vote of the Committee or any succeeding Managing Committee."

As far as I can recall, the developer concluded this little subdivision by 2005. The tax records reflect this to be the case as well as in all lots being sold by that year.

I have been going backward to learn about what happened and when. I know the developer was managing till around 2005 and a property management company took on the account.

In the recent meeting that I (thank heavens) recorded, two people of this sham of a board (pres and vp) stated that they could not get the property management company to do anything and so they fired the property management company and hired the one that is harrassing everyone, fining, suing, and collecting money that not defined in the CC&R's to collect or in these bogus ByLaws.
DorieW (Tennessee)
Posts: 52
Posted:
The CC&R's in 01 were recorded May 25,01.

The By-Laws were recorded September 27, 09.

The By-Laws were signed by the "President" of the Sawyer Green II Association under the notary public clause of having provided adequate proof of being a president.

None of us knew there was a PRESIDENT.

From this document and at the new property mangements guiding, this board of directors was formed and the fining and suing began.

DorieW (Tennessee)
Posts: 52
Posted:
I have several people in the neighborhood who are FURIOUS with how hostile the property management company has been with many of us and I am meeting with an attorney on Wednesday about this problem.
DorieW (Tennessee)
Posts: 52
Posted:
No, not under declarant control.
DorieW (Tennessee)
Posts: 52
Posted:
I believe that the property management company saw this subdivision as an account to make money off of and consented to harrassing all of us by a few nasty newbies.
DorieW (Tennessee)
Posts: 52
Posted:
What is happening is that a few people saw an opportunity and decided to form a group to determine who was going to abide by their personal preferences.

For example, if you are a friend of one of these people of this BoD, you can park a camper in your driveway whenever you like and not have any trouble for doing so (cc&r violation). But if you are not a friend, don't know any of them or are not a suck up, and you park a commercial vehicle (not a cc&r or bogus bylaw violation), you are harrassed by the property management company and you are fined $100.00 for each time you park your commercial vehicle.

So, you are way off when it comes to people actually being held responsbile for true violations. There are no violations unless someone in that nasty little group decides that they do not like what you are doing or you and then the mobbing begins.
DorieW (Tennessee)
Posts: 52
Posted:
The property managment company REFUSES to provide me with ANY financial information. They are upset with me for requesting it at the last meeting and followed up with stating that I would need to pay $400.00 for the records. The Bogus ByLaws state that I have the right to show up at the property mangaement companies place of address and view them on demand.
GlenL (Ohio)
Posts: 5,491
Posted:
Dorie, if your covenants do not specifically say anything about By-Laws then you need to check the Articles of Incorporation. While I am not familiar with Tennessee Non-Profit Corporation Law, generally speaking if you have a Corporation which an HOA is, then you have to have By-Laws. The Covenants are the what - the By-Laws are the how i.e The Covenants call for a five member Board, the By-Laws describe their duties - The Covenants call for an annual election, the By-Laws describe the candidate qualifications and election rules.

All we have is your word that these people were improperly installed but even if they were the answer is the same as if they were properly elected. You call a Special Meeting to hold a recall and replace them with people willing to step up do the job. The details on how to call a special meeting will either be in the Covenants, the By-Laws or Tennessee non-profit code. It's not easy but it isn't supposed to be easy, otherwise every time a Board made an unpopular decision you would have a mob trying to oust them.
Studies show that 5 out of 4 people have problems with fractions
DorieW (Tennessee)
Posts: 52
Posted:
What is so strange about this situation is that no ByLaws were created until Sept 2009. The Development was established May of 01. Transition probably took place in 05, because that is when I recall the name of the former and first property management company sending mail. The most recent property management company guided an angry old bat (a nasty whiner about the first property management company), a newbie to this subdivision to sign her name in as our president under notary public on this 22 month old body of work. Then, and I have this on recording, another neighbor stated that he opened all of our mailboxes and inserted flyers into them (90 mailboxes) to make us aware that there was going to be a meeting to elect board members. This neighbors claim is that only seven people showed up to the meeting and the self appointed president appointed him to be her successor and she the VP. Following this nightmare, these two greedy people fired the first property management company and hired another one who is harrassing, fining, collecting, suing, refusing to provide financial records and the like. It is a mess.
DorieW (Tennessee)
Posts: 52
Posted:
I am learning that our subdivision operated without a full board until March of this year.

BruceF1 (Connecticut)
Posts: 2,535
Posted:
Dorie,

You said: "and I have this on recording, another neighbor stated that he opened all of our mailboxes and inserted flyers into them"

Are these U.S. mailboxes (ie., for the receipt of U.S. Mail)?

Are these mailboxes normally opened by U.S. Postal Service mail carriers?

From your statement above it sounds to me like this person could be openly admitting to committing a federal crime. 1.) Tampering with U.S. mailboxes, 2.) Placing flyers into them to avoid payment of U.S. postage.

I recall reading several years ago about a Boy Scout troop that went around town placing flyers into people's mail boxes. When the Postal Service found out about it the U.S. Postal Inspection Service got involved. Fortunately, nobody went to jail, but the Boy Scouts ended up having to pay the Postal Service for the first-class postage for the flyers.
DorieW (Tennessee)
Posts: 52
Posted:
Yes. These are our USPS Mailboxes. Interesting. Thanks.
BruceF1 (Connecticut)
Posts: 2,535
Posted:
Quote:
Posted By DorieW on 07/19/2011 10:45 AM
Yes. These are our USPS Mailboxes. Interesting. Thanks.

Dorie,

This is even more interesting:

Section 3.1.3 of the Domestic Mail Manual (DMM) reads:

"Except under 3.2.11, Newspaper Receptacle, the receptacles described in 3.1.1 may be used only for matter bearing postage. Other than as permitted by 3.2.10, Delivery of Unstamped Newspapers, or 3.2.11, no part of a mail receptacle may be used to deliver any matter not bearing postage, including items or matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle. Any mailable matter not bearing postage and found as described above is subject to the same postage as would be paid if it were carried by mail."

18 USC 1725 reads:

"Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title."

As I understand it, a violation under 18 USC 1725 is punishable as an infraction. Each offense is punishiable by a fine of not more than $5,000 for an individual, and not more than $10,000 for an organization. Each mailbox would be a separate violation. Theoretically, for your case, the individual could be fined $45,000 and the Association could be fined $90,000. That's in addition to being required to pay the postage. Pretty stiff, huh?

The Boy Scouts I mentioned earlier were very lucky.

If this happened a long time ago, it's probably too late to do anything about it now.
DorieW (Tennessee)
Posts: 52
Posted:
Wow. Thank you. This is going to be very helpful in seeking some resignations. : )

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here

Terms of Use and Privacy Statement