Director suggests to a Homeowner to sue HOA

Started by NatalyaR • 22 replies • 2157 views

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NatalyaR (Alabama)
Posts: 55

Posted:

We have a family that just moved in next door. They showed interest in serving the community and the HOA BOD President suggested to get the man on BOD. Next thing you know, he (a new neighbor) is suggesting some lady from another building to sue HOA. That lady fell and got some bruces due to negligence of the maintenance company who left the floor wet. The lady never wanted to sue anyone, but she says the man suggested to take pictures for further actions. Isn't it making HOA BOD divided? What action should be taken? Should he get a letter or a warning from the rest of BOD?
Our by-laws state that new directors can be elected only during annual meeting if the quorum is met. Can his nomination be annulled until annual meeting later in December? What is the appropriate action?
Thank you.

LarryB13 (Arizona)
Posts: 4,099

Posted:

I have suggested such actions many times when a person makes a groundless claim for injury. It's my way of saying that I am not going to open the vault and let you help yourself.

A person fell on a wet floor, got a few bruises, and thinks the HOA owes her the world. I would also advise her to sue. Let her hear from a judge that she has no case if she can even find an attorney to take it in the first place.

I see nothing wrong with a director advising someone with a flimsy claim to sue, especially if the woman buttonholed the director outside of a meeting.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By LarryB13 on 06/16/2012 12:30 PM
I have suggested such actions many times when a person makes a groundless claim for injury. It's my way of saying that I am not going to open the vault and let you help yourself.

A person fell on a wet floor, got a few bruises, and thinks the HOA owes her the world. I would also advise her to sue. Let her hear from a judge that she has no case if she can even find an attorney to take it in the first place.

I see nothing wrong with a director advising someone with a flimsy claim to sue, especially if the woman buttonholed the director outside of a meeting.

I agree. Put the burden on them.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Nat

Most docs allow the BOD to fill a BOD vacancy that exists. Usually the person has only to receive a majority of the BOD votes.

Thus there are ways of getting on the BOD before any general election.

NatalyaR (Alabama)
Posts: 55

Posted:

Thank you for letting me see the story at different angle... Interesting thoughts!
But I would not be concerned about a new Board member IF his actions would meet his intentions. But it is opposite, he doesn't say a word during meetings, but then we get some kind of warnings and attacks from him on the Board's actions and, in this case with a woman, he was very serious about suggesting to sue HOA. Am I missing something?

I and my husband got a letter from him (since he lives next door and we share couple walls), which I wanted to ask questions about in a new thread...

Thank you in advance!

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Nat

What some are saying is many threaten to sue but few rarely do Also it is less expensive to defend ones self from a suit then it is to start one. Also easier for the defendent (the one that was sued) to collect damages if the suit fails.

So in this case let us assume the women threatened to sue the association unless they paid her off. In that case the best answer for the association and its owners is...OK...sue us. We will see you in court.

Hope this helps.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I think it's time for an education of the meaning of a HOA. Sounds like he doesn't understand the meaning of it. A HOA is made up of ALL it's members. The board is then elected from those general owners to represent them on the daily operations of the HOA/legal issues. So his suggesting the lady sue the HOA means he's also suggesting they sue him and ALL of the neighbors. Something I am sure he isn't understanding the grasp of.

Plus this was a contractor the HOA hired NOT the HOA itself. The contractor should have been licensed and insured prior to being hired. The lawsuit if there was one would then fall under that contractor's insurance. A consideration the HOA should acknowledge and talk to the contractor for future reference in case a lawsuit was ever to be brought by anyone.

People can sue for anything at anytime. It's just not worth knee jerk reacting and living in fear of a lawsuit. Doing things just to avoid a suit can stagnate a HOA. Know that it is cheaper to counter sue than bring a lawsuit. Which means if your worried about a suit, then make sure your HOA has the best evidence to bring for defense not offense. It's cheaper and relieves some of the "What ifs" from your vocabulary to get things done.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MelissaP1 on 06/16/2012 4:28 PM
I think it's time for an education of the meaning of a HOA. Sounds like he doesn't understand the meaning of it. A HOA is made up of ALL it's members. The board is then elected from those general owners to represent them on the daily operations of the HOA/legal issues. So his suggesting the lady sue the HOA means he's also suggesting they sue him and ALL of the neighbors. Something I am sure he isn't understanding the grasp of.

Plus this was a contractor the HOA hired NOT the HOA itself. The contractor should have been licensed and insured prior to being hired. The lawsuit if there was one would then fall under that contractor's insurance. A consideration the HOA should acknowledge and talk to the contractor for future reference in case a lawsuit was ever to be brought by anyone.

People can sue for anything at anytime. It's just not worth knee jerk reacting and living in fear of a lawsuit. Doing things just to avoid a suit can stagnate a HOA. Know that it is cheaper to counter sue than bring a lawsuit. Which means if your worried about a suit, then make sure your HOA has the best evidence to bring for defense not offense. It's cheaper and relieves some of the "What ifs" from your vocabulary to get things done.

I agree with Mel. Sound advice.

NatalyaR (Alabama)
Posts: 55

Posted:

I need to get used to all this suing process first. But thank you for valuable thoughts.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

If your HOA doesn't get threatened by a lawsuit weekly or monthly then it is just not doing it's job...LOL!!! Believe me, if I did not get threatened with a lawsuit every month I'd start to wonder if everything was okay...

You have to have some backbone and respond with "See you in court then if that is how you feel...However realize suing your HOA is suing yourself and your neighbors...I will be waiting for the paperwork...Have a good day!". It is that little nugget of reality that usually brings them back around... I was President for about 3 years and never once sued. Never had to run to a lawyer for every and any threat either. Not worth the money to resolve an internal problem of which there was already rules established to resolve it. The CC&R's are the legally binding documents and where you find your backbone....

Former HOA President

NatalyaR (Alabama)
Posts: 55

Posted:

Oh, wow! So very interesting! I will keep this in mind! Thank you, thank you, thank you!
We had a very simple country style life in our neighborhood up until about 5 years ago... Then everything changed

And my husband has been elected as a President this year... I am SO glad I found this website!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

My suggestion is to know your CC&R's like the back of your hand. Bring them to EVERY meeting!!! I brought the by-laws, CC&R's, and Articles of Incorporation to EVERY meeting. That way someone wanted to view them or there was a question, then there was the reference available. Plus NEVER EVER EVER answer someone's question "On the spot". ALWAYS tell them you will get back with them AFTER you review the appropriate rules or can show them reference in the documents. Unless you have the answer and reference available. Believe me you accidently promise someone something or say it's okay off the cuff...your fighting that for a LOOOOONG time!

Glad you all got involved with your HOA. It is a "Thankless job" but I was "ThankFUL" to have it. The headaches and stress is intense but take a breath and put your head on straight. Keep reading the rules, understand the rules, and rule by the rules...You can always come here to vent cause many of us have been there and done that...Sorry no free T-shirts...LOL!!!

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MelissaP1 on 06/17/2012 1:52 AM
If your HOA doesn't get threatened by a lawsuit weekly or monthly then it is just not doing it's job...LOL!!! Believe me, if I did not get threatened with a lawsuit every month I'd start to wonder if everything was okay...

You have to have some backbone and respond with "See you in court then if that is how you feel...However realize suing your HOA is suing yourself and your neighbors...I will be waiting for the paperwork...Have a good day!". It is that little nugget of reality that usually brings them back around... I was President for about 3 years and never once sued. Never had to run to a lawyer for every and any threat either. Not worth the money to resolve an internal problem of which there was already rules established to resolve it. The CC&R's are the legally binding documents and where you find your backbone....

How true. Well said.

NatalyaR (Alabama)
Posts: 55

Posted:

Thank you, Melissa! I will definitely come back! There is SO much info, I keep making notes and copying links for references. It's amazing!

Yes, we are excited to work for the Community. We've got many "Thank You!" (already) from the Homeowners for the work we've done since the beginning of this year...

Thank you for some advice! I am sure it is very hard work, but nothing really good comes out very easy. We will keep on working for the best results!

BamaJ (Alabama)
Posts: 117

Posted:

The "contractor" is a Board Member's son (who is an unpaid, non-contracted, unlicensed and uninsured) "worker" who's Mom is the Property Manager.

See a little nepotism here? See many problems here?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Nepotism can certainly raise perception concerns but its' not necessarily illegal.

To determine if an issue is illegal vs. a bad business decision, one would have to read the governing documents, State laws and probably the actual contract.

Per your post, the person moping the floor was a volunteer. This is a whole different set of issues. Was the volunteer used by the property manager or by the Association? It's possible that the issue is with the property manager and not the board.

One of the obvious lessons is the need to use signs indicating wet floors.

Of course this may add additional time to set up the signs, verify the floor is dry and then remove the signs. Time costs money.

BamaJ (Alabama)
Posts: 117

Posted:

The property manager and board members son did not "volunteer", he is paid by his mother and has been "recognized" by the board president as the "Assistant Manager" although he has no contract and is unpaid. He is also unlicensed and uninsured. The property manager cannot perform her duties because she is computer illiterate so she "pays" her son to "help" her with the computer and software and other aspects of her job, exposing him to and allowing him full access to financial records, corporate records, owner files, bank checks, etc.The entire situation is a mess, for sure.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By BamaJ on 06/24/2012 7:41 PM
The "contractor" is a Board Member's son (who is an unpaid, non-contracted, unlicensed and uninsured) "worker" who's Mom is the Property Manager.

Quote:

Posted By BamaJ on 06/24/2012 8:14 PM
The property manager and board members son did not "volunteer", he is paid by his mother and has been "recognized" by the board president as the "Assistant Manager" although he has no contract and is unpaid. He is also unlicensed and uninsured. The property manager cannot perform her duties because she is computer illiterate so she "pays" her son to "help" her with the computer and software and other aspects of her job, exposing him to and allowing him full access to financial records, corporate records, owner files, bank checks, etc.The entire situation is a mess, for sure.

You can see where the confusion comes from.

I see a definite potential conflict of interest issue between having a board member and a paid contractor from the same household. However, it would depend when the board hired the property manager.

I suspect that the son would be covered under the companies license/insurance and does not need to obtain this on his own unless he is working under his own contract. As for hiring employees, unless the property managers contract stipulates the the Board determines who the company can hire (which is doubtful) then the property manger is free to hire whomever they wish.

If you're on the Board, then change the terms of the contract at the next renewal or hire a different property manager.

If you are not on the Board, may I suggest you submit your name so, if elected, you are part of that decision process.

BamaJ (Alabama)
Posts: 117

Posted:

Unlike prior property managers, I'm not sure this property manager (hired by the President) has a written contract and her son definitely does not. And the HOA's insurance would NOT cover him or anyone injured from his workmanship or work deeds. So it appears NO written contract for "mama", the property manager, and "mama" hired unemployed 30+ year old son who lives with her and pays him out of her pocket because she does not know how to work a computer or software. Oh...and hubby is a board member. Cozy arrangement, wouldn't you say?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Let's go back to the beginning of this.

Natalya posted that a woman fell on a wet floor and received some bruises. The floor was wet because an HOA contractor left it that way. A board member, presumably the infamous Mr. H., advised the woman to sue the HOA.

Where was this wet floor? Indoors? Outdoors? How many others walked across the same wet floor? How many of those others fell? Did the woman who fell call paramedics, see a doctor, or seek other medical treatment? Did she suffer any economic loss, such as lost wages or doctor bills, as a result of this fall?

Is there a requirement that a person who makes a floor wet be licensed to wet a floor? Was the floor wetter a direct employee of HOA or was he employed by a contractor to the HOA? Did the HOA direct how and when the floor was to be made wet?

BamaJ (Alabama)
Posts: 117

Posted:

He was NOT a direct employee, there are never direct employees.

He was NOT a contractor, there was no written contract...and there apparently is no verbal contract between HOA board and "mama PM's" son.

He was "mama property manager's son" and mama paid him out of her own pocket to pressure wash a breezeway.

Who knows what "mama PM" told him to do.

Lady said when she fell on the wet stairs, he didn't even help her up. I hear she had a massive bruise (dinner plate size) but nothing was broken.

Yes others slipped too but did not fall.

No cones were placed in the breezeway.

Lady is not going to sue, was just upset, so I hear.

Could have been way worse.

If son had been the employee of a bona fide licensed and insurance properly contracted company, the contractor's insurance would have covered the situation.

As it is, the HOA's insurance is perhaps liable for the work of a non-employee, non-contractor, non-owner, guest whose "mama PM" pays him to give him "pocket money", I guess.

Who knows, if the HOA insurance would have been liable. Maybe so, maybe not.

Thankfully the lady will be ok.

NatalyaR (Alabama)
Posts: 55

Posted:

Quote:

Posted By BamaJ on 06/25/2012 11:45 AM
He was NOT a direct employee, there are never direct employees.

He was NOT a contractor, there was no written contract...and there apparently is no verbal contract between HOA board and "mama PM's" son.

All you should do, since you work in the evenings,- go to the office and request a copy of the contract, a license, may be you need a picture too? Sorry, could not resist! He was hired when we still had Management Company. May be you should call them and check with them since you don't trust your faithful BOD...

Quote:

Posted By BamaJ on 06/25/2012 11:45 AM

He was "mama property manager's son" and mama paid him out of her own pocket to pressure wash a breezeway.

Who knows what "mama PM" told him to do.

Seriously? By the way you may want to request a copy of the minutes when it was discussed at the Board meeting while you are getting copies of other documents...

Quote:

Posted By BamaJ on 06/25/2012 11:45 AM
Lady said when she fell on the wet stairs, he didn't even help her up. I hear she had a massive bruise (dinner plate size) but nothing was broken.

Well, there is obviously an evidence since she was photographed by our new Homeowner. And nobody needs to guess how big her bruises were...

Quote:

Posted By BamaJ on 06/25/2012 11:45 AM
Yes others slipped too but did not fall.

No cones were placed in the breezeway.

Lady is not going to sue, was just upset, so I hear.

What your heard WAS wrong. Go and talk to Mr.H and the lady herself...

Quote:

Posted By BamaJ on 06/25/2012 11:45 AM
Could have been way worse.

If son had been the employee of a bona fide licensed and insurance properly contracted company, the contractor's insurance would have covered the situation.

As it is, the HOA's insurance is perhaps liable for the work of a non-employee, non-contractor, non-owner, guest whose "mama PM" pays him to give him "pocket money", I guess.

Who knows, if the HOA insurance would have been liable. Maybe so, maybe not.

Thankfully the lady will be ok.

The Contractor (fully licensed and insured) knows that in case anybody files a complaint it will be dealt with his insurance company. Come on, it was 2008 Board that hired some guy who built birds houses and HOA paid him. He will be remembered by the whole Community. Sorry, could not resist either!
There is NO facts, there is only may be yes, may be no. And something that you heard from someone...

BamaJ (Alabama)
Posts: 117

Posted:

Plenty of facts, mam. Verifiable facts. And tons of stonewalling and refusal to comply.

But it will ultimately be resolved, one way or another, mam.

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