HOA not enforcing rules - How can I hold them legally responsible?

Started by MarkC15 • 12 replies • 6497 views

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MarkC15 (Ohio)
Posts: 9

Posted:

Why is my home owner's association sitting on their asses about my issue? I have newsletters from over TWO YEARS ago regarding the same issue I have been complaining about for 3 months! I have a tree that MUST BE REMOVED because it is infected with a pine beetle that has killed that tree and I am trying to defend my property by removing it so I can save my other two trees.

I have an ignorant neighbor who has locked the gates on the right of way established by my association. My association rules and regulations hand books states that ANY LOT OWNER MAY ACCESS THE BACK RIGHT OF WAY on ANY LOT, and yet our current board has not enforced these bylaws!

Does anyone know if the board members can be held personally liable for not enforcing these bylaws? If they haven't addressed this issue in two years, when will they get the job done? I have a person comming at 8AM tomorrow to cut the tree down and the President of the board told me not to email her about it any more, and that she is out of town and to talk to another board member (yet gave me no phone number or email address).

What are the legal obligations personally for board members and what can I do if my board still won't take care of the issue?

JM10 (California)
Posts: 503

Posted:

I'm not clear on what bylaws you're talking about in the first case or if the tree is on common area.

If the tree is on common area, then the board should be responsible for it and if the common ground has several trees that should be in the maintenance budget.

Have you asked for mediation between your neighbor and you and does it affect any other member?

MarkC15 (Ohio)
Posts: 9

Posted:

None of my neighbors can access their back yard except through the easement in the back, in which is locked because the one neighbor built a fence and locked it. This isn't only effecting my building but other neighboring buildings are all complaining of their corner neighbors doing the same thing.

The bugs that killed my tree will infect every tree in it's path within a mile radius unless I get the tree completely removed. These are my trees but my other neighbor has a tree killed by the beetles too and he can't get his cut down.

I am trying to save my tree and it is urgent, yet the board has had three months from my complaint; and I have an association news letter from two years ago where the board was telling everyone that back area is a right of way and no one can lock it.

Since the board is lazy and not doing their job is there anything legally that can be done against the assocation? Don't they have certain responsibilities?

JM10 (California)
Posts: 503

Posted:

I don't know your CC&R, but if your tree is yours and yours alone on your own unit's property, unless there's a requirement that you get permission to plant and remove, I don't think this is a HOA board issue.

What the HOA board should be concerned about is if there is a problem in the common area as well, they should be spraying for this and they could then offer homeowners to share the cost somehow.

Maybe if you post the CC&R that is holding it up it would be clearer what the exact problem is.

MarkC15 (Ohio)
Posts: 9

Posted:

The problem is this easement is being blocked by my neighbor and I have no way to remove the tree except through this easement. The easement, according to our HOA rules and regulation handbook, is to be open and accessable by ANY lot owner. Since it is locked out by my neighbor and the lock is not on my property, it is up to the HOA to get the lock removed. My neighbor refuses to remove the lock.

LarryB13 (Arizona)
Posts: 4,099

Posted:

You have two problems: a stupid neighbor and a lazy board. The neighbor is the more immediate problem, so I would deal with him first.

If there is a recorded easement across your neighbor's property allowing you to use it, he cannot legally lock you out. Buy a set of bolt cutters or, if you have power nearby, a small grinder with a cut-off wheel and remove the lock from the gate. If the neighbor puts a new lock on the gate, remove it again. Keep a set of your CC&R's and the plat maps handy to present to the police should your neighbor call them.

If the problem with the neighbor continues, you can seek an injunction against him. This is an expensive proposition and may not be worth it if you just need to access your backyard only once in a while.

My association has nearly 300 miles of roads to maintain and all of the roads are on easements. The association owns none of the roads. From time to time we have had to deal with owners who reason that since the road is on their property that they can fence the road off or put up a locked gate. Our road crew usually just goes in, tears the gate down, and directs the owner to hire a lawyer. Since the easements are recorded and dedicated for "non-exclusive ingress and egress," the owner quickly learns he has no choice but to allow all traffic through.

Unfortunately, there is little you can do about the lazy board. The board has a lot of discretion in choosing which battles to fight and it looks like they have chosen to sit this one out. If your CC&R's permit owners to enforce the provisions of the CC&R's through court action, there is not much you can do. You would have to sue the association to take an action that you yourself could take directly.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A HOA is only funded by it's owners for it's owners. There may not be enough money in the budget to take the action you request. I know I had the same situation with our HOA. To take down a large pine tree infested with Pine Beetles cost about 1K a piece. We had about 4 that needed cut down for sure. We barely make 5K a month and had 5K in bills to meet each month. You do the math when it comes to fullfilling a request to cut down a 1K tree. Especially when the ownership of the tree is iin question. If the owner planted the tree, they were responsible. If the tree was planted by the developer and on common property, the HOA COULD be responsible. However, these tree were part of the "Natural divide" of the HOA and the neighborhood behind us. A little more complicated...

We eventually had one of those tree fall down and land on a house. (My luck was my last week as President!) The tree was on the lot with a house with no insurance and landed on the house next door with insurance. It did hit both houses and took out the fence between the two. The HOA payout? We had to pay for the clean up of the tree and removal. The fence was NOT the HOA's responsibility as we just approve fences and do NOT install them. The tree damage to the homes had to be settled between the owners. It just became an insurance claim situation after that.

So to assume the HOA is ignoring the situation and NOT doing anything is a BIG assumption. Unless you and your neighors are willing to agree to raising dues or having a special assessment, the HOA can only do what it can do with it's budget. Your choice is to pay for it yourself if they agree and allow it or agree the HOA can try to have a special assessment for the project. That alone can take months to get approved by the owners, collect the funds, and then find a contractor to do the job. I had already a year before gotten quotes on tree removals and had removed several trees prior to that tree incident. Unfornately, it just was NOT in our budget and couldn't get a special assessment to pass to pay for the situation of removal. We just had to live with the risk which was cheaper than the prevention.

Former HOA President

TimB4 (Tennessee)
Posts: 21,059

Posted:

Mark,

Have you tried asking the neighbor to unlock the gate on a specific day?

If the Association isn't enforcing the covenants, then you have the option of enforcing the covenants yourself by taking the individual to court.

JeanneK3 (Maryland)
Posts: 562

Posted:

You absolutely need to take the association to court. And it is horrible that you need to spend your own money. In Maryland, 3 counties have dispute resolution boards so that a homeowner can have this decided without making an attorney rich. I'm working to get the same thing in every Maryland County.
Jeanne

MarkC15 (Ohio)
Posts: 9

Posted:

Melissa, this isn't an issue of who has to cut down the tree, I am already willing and able to do this. The problem is there is no way to rove the tree because the neighbor has a lock on the gate. My association rules state that any lot owner has the right to access any other lot as needed. There is no other way except through the house to get to my back yard.

MarkC15 (Ohio)
Posts: 9

Posted:

Melissa, this isn't an issue of who has to cut down the tree, I am already willing and able to do this. The problem is there is no way to remove the tree because the neighbor has a lock on the gate. My association rules state that any lot owner has the right to access any other lot as needed. There is no other way except through the house to get to my back yard.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By MarkC15 on 06/22/2012 12:41 PM
The problem is this easement is being blocked by my neighbor and I have no way to remove the tree except through this easement. The easement, according to our HOA rules and regulation handbook, is to be open and accessable by ANY lot owner. Since it is locked out by my neighbor and the lock is not on my property, it is up to the HOA to get the lock removed. My neighbor refuses to remove the lock.

Mark,

It's not necessarily the Associations responsibility anymore than it is your responsibility. Typically, both you and your Association have the authority to enforce the covenants. Just as you have a choice to enforce or not enforce a covenant, it's likely the Association has this same choice.

A question to ask the Association would be if the individual had permission from the Association to build the fence on the common property?

Quote:

Posted By MarkC15 on 06/22/2012 12:23 PM

Since the board is lazy and not doing their job is there anything legally that can be done against the assocation? Don't they have certain responsibilities?

Questions:
Did you send the request in writing?
Did you send a follow-up request in writing by certified mail to document that they received the letter? Have you attended any board meetings to discuss this issue in person?
Did you send a written request to the neighbor to provide you access?

If your going to seek a court order to give you access, you need documentation that you have tried to address these issues prior to going filing legal action.

If the Association gave permission to build the fence, you could certainly argue that they didn't have the right to grant that permission because it violates ingress and egress access outlined in the CC&Rs. Of course if you win, which could take years, then the Association has to go through the process have having everyone who did build a fence, remove them. This could take several more years.

Actually, I think you would have a better case against your neighbor directly.

I'd suggest that you contact an attorney, taking all of your governing documents with you, and ask them to write a letter to the individual, with a copy to the Association's registered agent, that access is to be provided as outlined in the CC&Rs (and citing any appropriate laws) or additional action may be taken. This would show you mean to follow up on your rights and may get the Board off their behind as well.

JayP3 (Florida)
Posts: 154

Posted:

Mark,

Before investing any money... have you researched if your city or county government has any authority in these matters?

They may very well indeed have statutes and personnel to inspect and diagnose infected trees and would be able to then force access and removal.

It's admirable that you are willing to pay alone but if it is an HOA responsibility then all members should pay equally.

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