HOA Legal Responsibilities

Started by AnnaB4 • 13 replies • 2174 views

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AnnaB4 (Georgia)
Posts: 4

Posted:

Hi there - like so many communities, we have one homeowner who has made it their personal goal in life to write letters to the Board with endless complaints about what they see as the Board's lack of performance to the letter of the bi-laws. I'm wondering if anyone has any experience or precedent for what our responsibility is to this homeowner, as an individual. It's my understanding that the Board has a responsibility to the community, not to individual homeowners and their unsupported complaints. There are no other homeowners that share this one person's grievances and we have received complaints from no one else. Can we, as a Board, tell this homeowner that he must get more support for his complaints before the Board will review them and take any remediation? I'm also wondering if it's acceptable for us to respond to him by saying we've reviewed his complaint and found that they do not pose any substantial violation of PCs and are therefore not going to take any action.

Some of this homeowner's complaints are TECHNICALLY accurate, but it's "hair-splitting" issues ("I think this person's log pile is too visible from the street and has to be moved.")

My bottom-line question is can one homeowner bring action against the Board with no support from any other homeowner(s)? I'd like to put the burden of proof and support back onto this homeowner, rather than make the Board have to continue to respond to endless letters and complaints. This has been going on for over 10 years with this one homeowner. Any input or advice would be GREATLY appreciated!!

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By AnnaB4 on 05/31/2012 7:49 AM
Hi there - like so many communities, we have one homeowner who has made it their personal goal in life to write letters to the Board with endless complaints about what they see as the Board's lack of performance to the letter of the bi-laws. I'm wondering if anyone has any experience or precedent for what our responsibility is to this homeowner, as an individual. It's my understanding that the Board has a responsibility to the community, not to individual homeowners and their unsupported complaints. There are no other homeowners that share this one person's grievances and we have received complaints from no one else. Can we, as a Board, tell this homeowner that he must get more support for his complaints before the Board will review them and take any remediation? I'm also wondering if it's acceptable for us to respond to him by saying we've reviewed his complaint and found that they do not pose any substantial violation of PCs and are therefore not going to take any action.

Some of this homeowner's complaints are TECHNICALLY accurate, but it's "hair-splitting" issues ("I think this person's log pile is too visible from the street and has to be moved.")

My bottom-line question is can one homeowner bring action against the Board with no support from any other homeowner(s)? I'd like to put the burden of proof and support back onto this homeowner, rather than make the Board have to continue to respond to endless letters and complaints. This has been going on for over 10 years with this one homeowner. Any input or advice would be GREATLY appreciated!!

Short answer, yes, anyone can bring suit against anyone else for anything.

Longer answer: You are on the right track. Don't let the tail wag the dog here. You can respond to the person with a nice letter "thank you, the board has investigated and taken steps to correct, etc.." or "thank you for the information, at this time, the board has decided to not pursue the course of action you suggested."

That said, the board SHOULD look at everything the person brings up, and make informed actions and decisions. Even if 99 of his things are petty, the next one may well be a good call and enforceable.

And yes, you can ask the person for more information (within reason) about the situation. It may keep him busy. Do not accidentally 'deputize him' to take action, but instead, ask him "please describe in more detail what it is about this violation that causes damage, problems or loss of enjoyment for you", for example.

AnnaB4 (Georgia)
Posts: 4

Posted:

Thanks so much, Brian. Over the past years, the Board has responded just as you have suggested. In the many situations where the Board decided not take any action (which has been 99% of the time), the homeowner has threatened to sue us to take action; sometimes for the most subjective of violations. Can we legally take the position that the Board does not feel that the violation is grievous enough to take action - it's a subjective conclusion?

We (and all the past Boards) have reviewed all of his complaints and responded to him - just not always in the way he wanted. Also, since this is a personal passion of his, he provides situational information, legal citations, and citations from our bi-laws, aud nauseum. So, no luck in deterring him with the burden of what he believes is proof. I was just hoping that by asking him to get even one more homeowner to substantiate his complaint, that would slow him down (because there's not one!)

He would definitely cite "loss of enjoyment" for just about every one of his complaints. Is this legally enforceable since it is completely subjective and isolated to one homeowner in the community?

KatherineP1 (Maryland)
Posts: 3

Posted:

I am in an association that was formed after we purchased which we were against. it comprises 8 homes. one of the homes as a ROW (Right of Way). that owner wants to SELL the ROW to all the others so that he can somehow lower his value to get a reduced mortgage. he apparently found out he paid too much for his property.

i see problems here. one, we already have ROW access, why do we need to purchase it? two, it appears that this falls somewhere very close to favoritism and setting a bad precedent. three, i do not believe a ROW falls under HOA authority.

any info is greatly appreciated.

BrianB (California)
Posts: 2,820

Posted:

Anna, i would advise against asking him to get signatures, other people, etc., unless that rule is in your regulations. Don't invent extra steps for this guy, because you could, by those actions, give him a real cause of tort (discrimination, for example).

Everyone can threaten to sue. the time to really worry is when the summons/complaint lands on your step.

Until then, I recommend an open, transparent approach. Take his letters openly, and do some work on them. If the board openly investigates, openly decides to not take action, and openly publishes/promotes why, that's all you can do. Don't give him more ammunition by dismissing him, ignoring him, or being secretive. Often times, being open and shining a spotlight does more good than anything. And, it makes your board look good! The worst that could be said is they made a poor choice in deciding X, as opposed to "they deliberately broke this rule" or "they knowingly obstructed this investigation", etc.. Plus, by openly reviewing and talking about the complaints, maybe some owners will see the light, change their ways, change their minds, offer options, etc.. Maybe not, but you tried, and can face a future judge by saying "here's all the things we were supposed to do, and you can see, we did them all, your honor."

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Anna

As it is a regular thing with him, I would simply acknowledge his letter and say the BOD will take a look at the situation.

I might well look at just to cover my butt in case it cam up again, but bottom line is I would treat it with benign negelect.

Ignore his sue threats. They are just threats and as long as you acknowledged his complaint, I see no legal leg for him to stand on.

He is your CCO.....Chief Complaining Officer.....many place have some like him. Be thankful you only have one of the.

AnnaB4 (Georgia)
Posts: 4

Posted:

Ha! CCO - I like that, John

I feel that he has no legal ground to stand on, either, but I don't want to put our community at any legal risk. I just wish I could write a letter and tell the homeowner that we've reviewed his complaint and don't find that the reported violation goes against the intent of the PCs of the community. It just goes on and on... that person's grass is over 5", that paint color is not an exact match (to discontinued paint colors), etc. etc....

Oh well - as least, as you say, we only have one of them!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Here is a bit of a secret to stop concerning your HOA over every perceived threat of legal action. STOP JUMPING at it!!! #1. Suing your HOA is suing yourself and your neighbors. An owner will always threaten to sue just to get a reaction. don't react and run to a lawyer. A lawyer is only needed to represent a HOA in court. If your HOA wants to use them for other things fine. However, expect to keep paying for it.

#2. It is cheaper to counter sue against any legal action brought by an owner/member. The HOA should never bring a lawsuit against an owner. It is a losing battle no matter if they win and are right. Let the other party take on the expense of filing the lawsuit. The HOA just has to respond to it and put in their own counter suit for their own expenses they experienced.

#3. A court system can ONLY make a person "WHOLE". It is up to the HOA to enforce it's own internal rules. A court can just issue an order for the HOa to folow it's said rules. The expenses involved in making this so may or may not be paid back to either party. the court can rule each party responsible for their own costs. So don't expect a court endeavor not just to be an expensive black hole of an endless loop...

My reponse to those who threaten to sue to get their way..."Go for it. I will be waiting on the paperwork". I would also emphasize rule #1 just to give that extra kick of wind out of the sails...As for asking for more people to support this person's view. Bad idea. You don't want more blind people following a blind deaf loud talker...

Former HOA President

LarryB13 (Arizona)
Posts: 4,099

Posted:

Anna,

Most CC&R's have a provision that allows a member to enforce the rules by seeking an injunction against the offending party. If there is such a provision in your CC&R's, then advise your CCO that he is welcome to pursue that remedy. Also, if you have that provision, the HOA then has no duty to take action on behalf of a member; the board has an almost unlimited discretion as to what actions, if any, to take against any member. The board gets to pick and choose what battles the HOA will fight and a member cannot compel the board to act when the member himself has the right to enforce the rules.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By AnnaB4 on 05/31/2012 8:10 AM

In the many situations where the Board decided not take any action (which has been 99% of the time), the homeowner has threatened to sue us to take action;

Anna,

Read your documents carefully. Typically the documents authorizes the Association to
enforce the covenants but does not require the Association to actually enforce every covenant. This is similar to the same authority the documents give to the member, they have the authority to enforce the covenants but are not required to do so.

If this is the case for your Association, then when he threatens to take legal action I would reply along the lines:

Sir,

The Declaration of Covenants, Conditions and Restrictions authorizes both members and the Association to enforce the covenants. If you disagree with the Boards decision not to take action in this instance, as a member you certainly have the right to enforce any covenant you believe is being violated, even when the Board does not believe a violation exists. If you decide to take legal action against your neighbor to enforce the covenants, we advise that you consult with an attorney for legal advice and possible representation. Since it will be you taking the action, the Board would like to remind you that all legal costs associated with such action will be your responsibility.

As always you also have the option to submit your name as a candidate for the Board and, if elected, to cast a vote on board decisions.

For the Board,

Granted this may open up a can of worms, but at least it will also throw it back in his lap.

Tim

AnnaB4 (Georgia)
Posts: 4

Posted:

Larry and Tim- you all are awesome!! Thanks so much for the great points - it seems totally logical to me that the Board has the AUTHORITY, but not the legal RESPONSIBILITY to enforce the CCRs/PCs. I am working with our president to research this. I also really like the ability to let the homeowner take his own course of action, should he chose to do so.

Just as a point of interest, our "CCO" stormed out of the HOA meeting last night yelling that we'd hear from his lawyer.... this because the meeting was at 6:30 instead of 7:00 and he didn't read his notification of the meeting (which he actually had with him.) He apparently also recently tried to run over one of the Board members who was delivering a dues notice to him in his mailbox (he won't allow us to email him, though he floods the HOA mailbox on a daily basis.) It's a constant struggle, but y'all's information and advice has been invaluable. THANK YOU!

DavidA7 (California)
Posts: 179

Posted:

I'm personally not sure that about the comment about the authority but not the legal responsibility to enforce the CC&R's. What are CC&R's for then just casual reading. I believe and feel that enforcement of the CC&R's is required and an obligation of a Board of Director's. Not doing so opens up a can of worms if not legal personal legal liabilities to each Board Member for their inaction. If an issue of non-compliance with a CC&R policy is brought to the Board's attention they have to at least discuss and document their discussion, opinion or vote on the subject at an open Board meeting. Otherwise, they could be subject to lawsuits as they are aware of the CC&R violation.

TimB4: Members don't have rights to enforce CC&R's and covenants only the Board of Director's has that right. At least that's the case in California. The rest of your suggested communication I really like.

I've been a Board Member for 6 of 8 years I have lived in my HOA. In the two years I did not the Board violated many CC&R policies including not holding open meeting quarterly. I had to sue for compliance. One of my arguments in front of the judge was I informed through certified letter twice that the Board amoung other things was not enforcing the CC&R policies including having quarterly meetings. The judge ruled that since the Board was aware of CC&R policies through their involvement on the Board as well as my written communications they were obligated to enforce the CC&R's which included their participation in quarterly meetings. For my case I had 12 different issues and I won on all 12 issues. Enforcement of the judges decision was a different issue and in the end all 3 Board members up and quit because they new what was next which was a personal liability lawsuit.

BrianB (California)
Posts: 2,820

Posted:

If he will not accept an email response, then send him a letter outlining the process for complaints, which must be in writing and delivered through the US mail (or some such, if your regs allow). then, delete his emails. Goose, gander, yadayada

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By DavidA7 on 06/01/2012 4:12 PM

TimB4: Members don't have rights to enforce CC&R's and covenants only the Board of Director's has that right. At least that's the case in California. The rest of your suggested communication I really like.

David,

David-Stirling.com duty to enforce page, references Civil Code §1354 which states [emphasis added]:

"The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development.Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both."

Therefore, it would depend on the individuals Associations governing documents and, per CA code, the right of an owner to enforce could actually vary from Association to Association.

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