Really Difficult HOA - Potential Legal Issues

I need some help and advice on the following situations. Any advice would be appreciated.

To start - I am a renter in my community, not a home owner. This is not from lack of trying - the homeowner we rent from did not want to sell, so we are awaiting the end of our lease to make another purchase offer, or find another house in our community to purchase (as we overall enjoy the community and most of the people in it). We HAVE been homeowners before, and I understand the manner in which (some) homeowners and board members can view renters, however I assure you we do our best to volunteer in the community and help out our neighbors or board whenever possible. So in short, we are not dead beat renters.

Couple of things I'm looking for:

- A state (SC) HOA Act that is in effect or a federal law that directly or indirectly effects HOAs.
- More information and understanding of how the Non-Profit Acts work with Homeowners' Associations.

Here's the situations:

Pool, Communication, and a Gate:

Our current HOA board is not very transparent, it is literally like pulling teeth to get any answers from them. First example, the HOA Board President is married to the CPO. In this last season alone, the CPO has closed the pool several times (at least 6 for fecal incidents and more than that due to imbalance of chemicals) and rarely has there been ANY notice given to the residents and sometimes not even a sign posted. Just the door entering the pool area chained and locked. Three weeks prior to the opening of our season, the CPO told his wife to tell the Board he did not want to be their contractor for the 2012 season. When the board rightfully objected, due to lack of time to find a new CPO in time for the pool to open on schedule, the wife (HOA President) states that a $400 increase in pay will probably convince her husband (CPO) to remain on board for one more season.

Per the SC Non-Profit Act (which from my understanding directly impacts HOAs as they are incorporated as non-profit corporations) - this is a HUGE Conflict of Interest. Anyone know if this is correct?

Secondly, the HOA will not release the 2012 season contract with the CPO for residents viewing, nor are they explaining or sharing any information regarding TWO DHEC fines from last season, nor do they seem willing to allow the past two years of financials to be reviewed either. Several questions have been asked regarding the CPO contract, and the President continues to ignore them.

The Board has kept their meetings very private, again when asked when the meetings were - ignoring the questions (they have been asked over and over) and not giving any information. When a meeting is known about, they refuse to allow anyone into their meetings until after they have been closed.

A low priority: the HOA installed a gate, that must be manually closed and locked, and unlocked and open everyday. The Board is failing to meet operating hours by opening the gate sometimes three and four hours AFTER the common areas were supposed to be opened. They are closing and locking the gates sometimes several hours AFTER closing hours due to the fact they are using facilities after close.

Forgive me, while I appreciate the hard work and time that volunteers give when they are a part of an HOA board, I just feel that this board is behaving really unprofessionally, borderline illegally, and in some instances - illegally. I need some help and advice on how to move forward.

Thank you in advance for your suggestions.

Amanda: You will hear this alot. You have no rights as a renter to participate in the Assn business. The complaints you have listed here should go to the owner of the property. If you see all this going on, why would you want to purchase a house in this community and get envolved. You are lucky to see what the Board is doing. My suggestion is don't buy a house in this community. Rent as long as you can. Keep abiding by the Rules & Regulations. You have the best situation. Don't get involved. Enjoy your house until your contact renewal comes up and find another home out of this community. Run as fast as you can. With what you have written there are going to be many problems. Sorry to write this to you. In the end it is your decision to stay or go. Good luck! Nancy

Amanda

SC has no HOA rules/regulations. There is the SC Horizontal Property Act but it is for condo buildings, not standalone homes/townhomes. A HOA is pretty free to operate as it wishes to as long as it abides with SC Corporation Law and its own Covenants/Bylaws.

You say CPO. What does CPO mean?

Also is your HOA under owner control or is it still under declarant control?

As a renter you have no direct say to the association. Your communication has to be to the owner.

Your main issues seem to be around irregular pool hours and notification of such. Raise this with your landlord.

Hope this helps.

Amanda: The first thing I need to say is I apologize for my spelling in the message I sent you. It was real late and I didn't reread for errors. Now that you have decided to remain in the community at this time as a renter all your concerns should be sent to the landlord. When you purchase a home then you can work on becoming a Board member and work on improving the community and helping the Board. Until then check with the Board and ask if you can attend their meetings. This will keep you updated on what is going on with the Board and the community. They may not allow this, but you could ask. Good luck.

Hi Melissa,

See my reply to John, my concerns have nothing to do with the pool closures. My concerns go deeper than that. Also, while the people on our board are volunteers, they are compensated by the community - Board members do not have to pay any HOA dues during their service terms.

And again, to reiterate - obviously things happen, such as fecal matter in the pool or someone bleeding, and those obviously are not planned. What other home owners (and myself) have been asking is simply communication that either the pool is closed and communication that it is open. None of what the home owners or I expect are unrealistic - they are reasonable expectations (again see my post above this) and should not be considered hardships.

Regards,
Amanda

Along with prompting your landlord to take the issues to the board, Amanda, you also can try to persuade other homeowners to get involved with their HOA & board. Encourage them to attend board meetings and bring up your shared concerns. Sounds as if you've met many via your children.

How can renters abide by the legal documents and rules and regulations if they are not given the legal documents. We put all of our on line for all to see. I disagree that renters do not have any rights. They may not vote at the annual meeting but they can certainly attend all other open board meetings and voice their opinions as to matters affecting the HOA. You may wasnt to consult an attorney about your rights and responsibilities. JeanI

John,

I would be interested to know what specifically you disagree with in this bill. Do you believe HOAs should not have any state regulations to help keep them in mind? I spoke with my owner today, and was sharing all the information I've shared here - understandably, he was upset by the news. He shared with me, that just a few years ago that there had been a BM who was taking money from dues or something along those lines. He didn't have specifics - because the Board never shared this information officially with the community, just with their friends. If this is true, this is a clear abuse of power, and it makes me wonder if anything was done other than maybe remove this board member (we don't know for sure since it was never officially revealed who this person was and my owner stated the board has overall remained the same over the years, just people rotating positions).

HOAs deal with large reserves of cash ($10k or more) and are trusted by the community they serve to do what is best with those funds. But how can we insure that that's what is actually being done with those funds if there is no transparency? Something I really enjoyed about the SC HOA Act is that all meetings involving board of directors must be open - there should never be a meeting of directors that homeowners cannot attend, because otherwise it begs the question - why? What is being kept secret? I'm not stating that the meetings become a debate or a Q&A forum, but with the exception of a meeting with the Board Attorney or a meeting with an individual HO regarding any citations, I cannot think of a reason why other HOs could not sit in on meetings and observe as decisions were being discussed and made.

Regards,
Amanda

Kevin

Non-residents can quite often be elected to the BOD, but I never never heard of non-owners being elected. There is a difference.

Amanda

HOA's in SC are governed by:

1. SC Articles Of Incorporation For Non Profit Organizations part of which covers meetings and members attending such. Which I would say as a non-owner you are not a member thus probably not allowed to attend, never mind speak. Like an Annual Stockholders Meeting, one must be a stockholder.

2. Covenants filed with the deed and changeable by Owners.

3. Bylaws (sometimes filed with the deed) and changeable by the Owners.

4. Rules and Regulations established by the BOD and changeable by the BOD.

Bottom line is we do not need another layer of anything especially one done by politicians and bureaucrats, especially in SC. They were still passing laws to get around segregation in the 60's. SC school systems are still operated under Federal Mandates due to segregation. Operation Lost Trust, 1990. There is a long serving, leading SC Senator that recently called the Governor a Rag Head.

Tough love, but you are a renter thus have little skin in the game. If you came to chat me up about my HOA, I would say to you get back to me when we are on equal footing and I will welcome and treat you as an equal then.

Kevin -

I do not think there is any wiggle room for me to run for board, although a member is defined as someone with "interest" in the property (via our Bylaws).

Melissa,

Your examples have nothing to do with what's going on in my community. Can I say that you were a bad HOA president, could have done better, or excelled at the position? No. You can give me examples all day and all night, but at the end of the day - I'm not in your neighborhood, I did not live there during your term, and therefor cannot form an informed opinion on your matters.

I will agree to disagree with you regarding whether my expectations are realistic, my understanding is the gate duties are rotated - and as I mentioned, the gate only opens late during the HOA President's turn, so therefor - she should be taken out of the rotation. Obviously, she is unable to fulfill her turn in gate rotation and it should left to those who have already demonstrated they can open the gate on time.

I do agree that it's a BAAADDD idea that the BOD do not have to pay dues during their terms - especially since several of them are career BODs - having stayed in one office or another for several years. Further, apparently, the residents were never asked to vote on this - the BOD voted on this independently of the residents, and people only found out at a much later date.

John,

Your opinions do not bother me, I'm just curious about your logic. I do understand that you feel there are more pressing priorities in the Senate that need to be passed, and I can certainly respect that.

Regards,
Amanda

Amanda

I did not say there are more pressing issues confronting the state politicos.

I did say I believe there are already enough controls in place for an HOA and more state regulation will bring HOA operations to a grinding halt plus bring frivolous lawsuits and the I am right no matter what freaks out of the woodwork.

One person on here said they saw 3 members of their BOD chatting at the pool and asked if this constituted an "illegal" BOD meeting. Some replied yes, where they lived it did. How frackin stupid can we get?

Curious, but where (generally) is the HOA you live in?

Come to Columbia and I will take you for drink at places where you can see politicians, lobbyist, special interest groups, etc. eating, drinking, dancing, and groping together within two blocks of the state house. One place does a great perfect Rob Roy on the rocks with a twist...my drink of preference....LOL

Amanda:

Let me share a few observations about life in general,if not HOA/condo living. Most owners really don't wish to have a direct role in the operation of their property. They would rather someone else do it. And if as you suggest somehow this Board decided to offset their dues by serving on the Board ( which I too can agree is BS) well just where were the owners then? Same place they are today moaning and whining but just not ready to do anything about it. But if you are willing to take the point position on this they are sure ready to let you lead them. Now point man gets the heat and runs the greatest risk hopefully you understand the position you are putting yourself in. Many folks will let you pay the price while they sit on their hands. Just how many are really willing to step up?

The gate open or closed when and how is IMO much to do about nothing. But if you (as a non-owner resident) wishes to suggest the Board Presdient is clearly incapable of doing their job well that is NOT a road I would be willing to go down as you have no idea just what the President does besides volunteering their time to open gates. And like I have said many times on this site when the consequences start to fall down don't wonder why. Most people don't like being labeled in negative ways and some people will even go so far as to push back. Lets hope you have considered that possibility.

I understand your logic about someday buying but as that is not the case right now IMO you have put the cart before the horse.

And after having served 25 years on our Board two final thoughts. I would not appreciate having a tenant who rents property here suggesting how things should be done, what is right and wrong and what I am doing does not satisfy them. That would be a real tough line to sell with me or anyone else I would guess. I also own several rental properties/condos
and IF one of my tenants were to take on the role you have decided to pursue there would be just two options. Cease or move out. IMO until such time as you are an equal owner to the rest you have no place talking it up with neighbors which in the end might come down on me.

Please let us know how things go for you. I hope in the end you are happy because being right really doesn't mater all that much.

Good luck.

Amanda, I fully support your right to freedom of speech.

If your h'owner neighbors wish to listen to you and consult with you and make plans for changes in your HOA, more power to them! You might be just the catalyst they've needed to improve your community instead of them just whining.

If your neighbors don't want to hear from you, I'm sure that they're mature enough to let you know.

If the election is "sometime" in Sept., I'd hope that your neighbors have persuaded some owners to seek election. In CA, we must send out ballots 30 days ahead of elections (such a burden!!), but it sounds like SC has no such requirement.

We have some excellent tenants in our HOA and a few have come up with good ideas that they've sent to our Board (I'm on it) via their owners.

It's the responsibility of the member to make sure that their guests/tenants comply with the rules.
Therefore, it's also the responsibility of the member/landlord to provide the guests/tenants with those rules.

That said, we also have our governing documents online for anyone to see.
We also provide additional printed copies (for a fee) to the membership if they request one.
We have one member who provides a printed copy with the lease. If not returned, the landlord takes the replacement cost from the security deposit.


The contract (CC&Rs) was entered into by the owner when they purchased the property. The Association only administers the contract and provides specified services and maintenance as required by the contract.

All the HOA laws and the governing documents I've seen convey certain rights and privileges to the member not their guests or tenants. Per the contract (CC&Rs) certain privileges (use of pool, services, etc.) are extended to the guests of the member and the member is responsible for the actions/behavior of those guests.

Every Association has the option to allow guests/tenants to attend meetings and voice their opinions. However, they don't have to. One of the issues that can arise by allowing tenants/guests to attend meetings is that not everyone is aware of their status. Depending on the governing documents, there might not be any qualification requirements for who may be elected to the Board. Additionally, many Associations allow nominations from the floor.

Therefore, depending on the governing documents, by allowing guests/tenants to attend the annual meeting, it's possible for the membership to elect a tenant or boyfriend/girlfriend to the Board. This may or may not become an issue for the community (especially if the boyfriend/girlfriend break up).

Like you, I appreciate anyone volunteering to serve.
A Board needs to weigh all the risks and benefits then make a decision based on what is best for the Association.

Tim

I understand that. The president lived with the Secretary. The secretary was the legal owner of the home. The vice president lived in another neighboring neighborhood altogether. The BoD in my neighborhood changed the articles of incorporation and by-laws to only require a certain number of owners thus allowing the non-owner (president) and non-resident (vice president) to serve. The only thing that made me scratch my head was that those two were technically violating by-laws and the articles to begin with but they seemingly ignored them to change them.

That is why I suggested checking the by-laws, c&rs, and articles.

Ellie

By all means, let us turn our associations over to non-owners.

I think the fact that a majority of issues on our property and many others stem from tenants rather than property owners suggests to me they have little in the way of consideration because they have no real financial interest in the property. They stay for only as long as they pay rent. Are there exceptions? Certainly, but they are not the rule IMO.

I do not quite understand what you mean when you say she can start another forum when she buys a house. Why would she not want to post in a forum that deals with all aspects of life in a HOA community. She rents a place in such a community and I believe she also volunteers there. This is the best place for her to get answers to her questions.

While a HOA is a Homeowners Association, renters indirectly pay dues. Like it or not, part of the rent is to go towards the HOA. Renters are paying for the amenities - through the homeowner. I'm sure many C&Rs are created with the idea in mind that the homeowner would reside in the home, but that is not the case when people purchase homes as investment properties.

Melissa,

One of us may be a little naive here but I do not think it is me. We own three rental houses in the HOA community we live in and plan to buy a couple more in the near future so I am quite familiar with the obligations of tenants in this type of community.

The renters are bound by the rules of the HOA, in that it is written into to the terms of their lease with the homeowner. I cannot imagine a owner renting a home out without this clause in the lease, it could be very problematic if it were left out.

Regarding the dues, I can assure you that the dues for the houses we rent out are being paid by our tenants, it is not specifically itemized as such but is covered by the check they send us and is commonly referred to as rent.

The reality is that many owners do not put in their leases that renters must obey HOA rules. Off the shelve agreements do NOT have this in them. Plus a HOA can NOT directly enforce the rules onto a renter. It has to be against the owner. That owner then has to then decide what to do.

In my state, a renter can stop paying rent for about a year without being evicted. There is nothing a landlord or HOA can do about it. It takes 2 10 working day notices alone to just evict. Plus up to another 2 weeks before the Sheriff department can forceably evict. That is IF the tenant does NOT protest. IF they protest and respond to notices sent they can essentially stay on the property legally for about a year. All of which in this time could break HOA rules. The HOa can't force the owner to evict. There are Tenant's rights to deal with even an owner can't overcome.

No tenants do NOT pay the dues. (Although Florida has a law). They are paying the owner enough rent to cover the dues payment. They do NOT pay the HOA directly. If they are your not very smart. Dues for rental property are tax deductions. They aren't when you own and live in the home. An owner can charge rent for any amount they want. Does not mean they pay their assessments. I had to foreclose on an owner who did this. Tried to make their tenant pay their backdues. That does not work here in Alabama just maybe Florida. However, what renter is truly going to pay their owner's debt?

Renters do not bring the HOA's property value down. They just can make it harder for new potential owners to get loans or pay a higher rate. A HOA does NOT maintain property value. It maintains the ATTRACTIVENESS to potential buyers to buy in their HOA.

That is all and good...However, I would dare to say 90% of people who rent out their HOa homes fail to include the HOA clause. Surprising many of those could be professional companies or out of town investors. You have to consider most HOA's lack a fining schedule to even enforce their rules. Can not use fines as a basis of foreclosure or lien in most states. So how does a HOA really have the power to hold over on a renter or landlord? Even rental quotas can be unenforceable. Only California has recently passed a law on that and it began just this year.

I had an owner refusing to pay a special assessment and dues for over two years. She was renting the property out and having the tenant basically paying off her second mortgage. When we started foreclosure proceedings (After years of liens), she demanded her renter pay the backdues. The renter found out not responsible for them and had paid extra each month to purchase the home. The renter moved out and later sued the owner. Which I was a witness to.

So owners/HOA members can be more of a factor of ruining a HOA than a renter. This was an excellent renter. Just bad owner. It can work both ways and the HOA really needs stronger enforcement against owners in that aspect.

I think Amanda has gotten all the information she needs for this forum.