Enforcing new amendment to pre-existing situation

Started by LeighJ • 19 replies • 6138 views

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LeighJ (North Carolina)
Posts: 2

Posted:

Our HOA recently passed a new amendment stating that all mailboxes must be black and uniform in nature. This was prompted after one resident installed a huge white mailbox on his property. Our HOA attorney said that the board could make him remove his box since it is now non-compliant. He was sent a letter asking him to replace his mailbox. I received a letter from his lawyer today stating that he did not have to comply with this new covenant since it was not in place when the convenant was enacted. There are no grandfather provisions in our covenants or bylaws. Has anyone ever dealt with a simlar situation?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

This is what I call "Lawyer play". Their lawyer has to send a response and test the waters...This is their attempt to put their toe in to get your response back. Be careful of knee jerk reactions. The HOA is run by it's owners by it's owners. That means the majority of owners or board members can modify whatever rules they want to live by. The ammendment made by the HOA should stand as long as it was given out to all members and recorded by the me eting notes.

My best advice is to give the letter to your lawyer to respond to the next step. Keep in mind that suing your HOA is suing yourself and your neighbors. It also means it is cheaper for the HOA to countersue than to bring a lawsuit. The winners in this game is the lawyers. So be careful on how the HOA plays...Lawyers may trick you into the wrong decision making if they ever say to you "We will do whatever you want us to do". That usually means they aren't telling you all the options available...Ones that don't require their services. So if this escalates to a lawsuit, be prepared to counter sue for the legal costs the HOA encounters, get quotes to remove the mailbox,and prove your rules change was allowed.

Former HOA President

LarryB13 (Arizona)
Posts: 4,099

Posted:

What did you amend, the CC&R's or your association's bylaws? Did your attorney provide you with some sort of written opinion with citations to authorities setting forth the theory under which you could enact some sort of ex post facto amendment? The reason I ask is that your assertion that your attorney gave you the green light is opposite to all the law that I am aware of.

Before you and the homeowner go any farther with this, it may be beneficial to know that at least one person who is not a party to this matter considers it to be the most childish and stupidest dispute of all times. With all the problems in the world to deal with I cannot believe that a group of adults (only from a technical standpoint) would be squabbling over the size and color of a mailbox. Just exactly how much of your combined resources do you and the homeowner intend to waste on this petty matter?

Your covenants need no "grandfather" clause because it is a matter of law. The covenants are a contract and you cannot lawfully alter a contract to impose new terms and conditions after the other party has accepted the original terms and conditions.

LarryB13 (Arizona)
Posts: 4,099

Posted:

I hate this lack of an edit feature. This what it was supposed to read:

What did you amend, the CC&R's or your association's bylaws? Did your attorney provide you with some sort of written opinion with citations to authorities setting forth the theory under which you could enact some sort of ex post facto amendment? The reason I ask is that your assertion that your attorney gave you the green light is opposite to all the law that I am aware of.

Before you and the homeowner go any farther with this, it may be beneficial to know that at least one person who is not a party to this matter considers it to be the most childish and stupidest dispute of all times. With all the problems in the world to deal with I cannot believe that a group of adults (only from a technical standpoint) would be squabbling over the size and color of a mailbox. Just exactly how much of your combined resources do you and the homeowner intend to waste on this petty matter?

Your covenants need no "grandfather" clause because it is a matter of law. The covenants are a contract and you cannot lawfully alter a contract to impose new terms and conditions after the other party has accepted the original terms and conditions.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Leigh

I believe this could have been handled better.

Most docs have a clause about maintaining the neighborhood look and feel, etc. If such existed, it would have been much easier to send the white mail box a letter stating it did not match and ask for it to be replaced.

You all might have thrown the baby out with the bath water.

Now if your docs were properly changed (owners voting, etc.) then you do have a right to enforce. Was there an owner vote on the amendment?

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By LeighJ on 08/31/2012 8:54 PM
Our HOA recently passed a new amendment stating that all mailboxes must be black and uniform in nature. This was prompted after one resident installed a huge white mailbox on his property. Our HOA attorney said that the board could make him remove his box since it is now non-compliant. He was sent a letter asking him to replace his mailbox. I received a letter from his lawyer today stating that he did not have to comply with this new covenant since it was not in place when the convenant was enacted. There are no grandfather provisions in our covenants or bylaws. Has anyone ever dealt with a simlar situation?

So the board (of how many directors?) decided that because one person (out of how many units) installed a huge white mailbox that they would make sure that no one else would do something similar by making a new rule/amendment about specifically the color (and not the size)?

Not sure what you mean by uniform in nature.

So it seems that the member did nothing wrong originally and was well within his rights and working within the CC&R when he installed his mailbox.

Because the board couldn't get him to comply with the CC&R because he was in compliance, the board changed the rules/amendments.

Not sure about your state laws or your HOA CC&R, but my HOA required an amendment to the CC&R be voted on by all members and even have city approval. For rules, there is a 30-day period for members before the HOA votes.

In any case, I think the board should pay for the member's attorney's fees because what was done sets a bad precedent. Are you saying that you believe the board has a right to enforce laws ex post facto? Meaning, that after someone has done something you don't like, you can make a law and then go after that person even though there wasn't anything (code, rule or law) against it at the time the person committed the act?

Ex post facto laws are forbidden by the U.S. Constitution.

I agree with the person who wrote, this whole matter seems silly. But I'd side with the white mailbox guy. After all, if he didn't take a stand, then what ex post facto law would be next?

Otherwise...in sunny SoCal, a white mailbox seems more sensible than a black mailbox because of the heat. My mailbox is unpainted aluminum silver.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Mailbox - $22
Lawyer fees - ???

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By SteveM9 on 09/01/2012 5:55 AM
Mailbox - $22
Lawyer fees - ???

LOL. If we put it into a math equation the logic becomes obvious. ;)

KevinK7 (Florida)
Posts: 1,343

Posted:

The cost of a mailbox can go beyond the cheapo 22$ box but that is beside the point. If the board is willing to make such a big issue over a tiny detail, what is to stop them later on from changing their minds on neighborhood aesthetics and forcing every homeowner to switch to big white boxes?

Also, are there any laws regarding mailboxes? Where is the mail box located? Is it on community property or county easements?

TimB4 (Tennessee)
Posts: 21,059

Posted:

To answer your question, from my research, there is no automatic grandfathering for HOA rules.

However, it is typical for Associations to work with individuals when there are gray areas like this - perhaps allowing the current mailbox until it needs replaced and/or the house is sold.

To take this further -

You have admitted on a public forum that the rules because this one resident installed a white mailbox vs. a black mailbox. This could cause issues for the Association.

What enforcement attempts were made prior to changing the rules (did anyone talk with the individual)?

Is it an actual covenant (i.e. part of the CC&Rs) or a guideline/rule adopted by the Board? They are very different things.

Covenants are contractual agreements that are spelled out in the CC&Rs and attached to the deed.

Guidelines are a set of standards used by an approving authority when deciding to approve or disapprove exterior changes.

Rules are adopted by the board to restrict/permit actions and behaviors on the common areas.

LeighJ (North Carolina)
Posts: 2

Posted:

I think I need to further explain the situation. There are 57 single family homes in our HOA. All 57 homes had the matching boxes and posts installed during the building process. The homeowner with the white box did not wish to have a mailbox on his property and has had a PO box for about 10 years. He still has his PO box and does NOT use this white box to receive mail. He became disgruntled last year when the community did not vote him to be the president of the HOA. He did serve a two year term on the board as a street representative but did not hold an office during that time. Our current boxes and posts come from a company in Texas and must be ordered at a cost of $199 plus shipping. Our CC and Rs state that the exterior of homes and properties must be "harmonious." He put the box up immediately before our annual meeting. He then attended the meeting stating "I'm not black and my mailbox isn't going to be either." At that point, the HOA members present decided that we needed a more concrete clause in our CC and Rs regarding boxes. Previously, other homeowners had purchased replacement boxes and posts to match the existing ones. Our bylaws state that with a with a vote of 2/3 of the commununity, amendments may be modified, removed, or changed. An official ballot was submitted by each household and resulted in a vote of 42 for, 2 against, and the rest abstaining from voting. Our lawyer drew up the modification document, had it notarized and signed by the HOA president, and filed at the county register of deeds office. The board did not think that we would have the right to ask this homeowner to remove the box after the fact when this amendment was put in place. However, the lawyer, who has extensive experience with HOA and real estate laws, says that the way our CC and Rs are worded makes HOA members agree to abide by any additional amendents that are enacted at any point during the ownership of their home as long as the amendment process was abided by. I think it is also important to point out that this same homeowner went to two other homes in the community during his time as a street representative and insisted that they replace their black plastic boxes with metal ones (the rest of the board gave the ok to keep the plastic ones since they did not affect the "harmonious" nature of the neighborhood). I agree that this seems petty, but the majority of the HOA members feel very strongly about this and are worried that if we do not enforce this amendment, other homeowners may begin ignoring other amendments. We do not want to set the precident of having selective enforcement of our covenants. In 15 years of existance, this is the only time that we have even come close to having a lawsuit. The HOA even offered to purchase and install a new box at our cost, but the owner refused. The homeowner was sent a very nice letter asking him to please change his box and providing him with all the contact and ordering info for the company that makes the boxes. I have no doubt that we had the right to enact this amendment and follwed the process exactly as described in our bylaws. The only question is do we have the right to ask him to change it now?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Leigh

You say:

An official ballot was submitted by each household and resulted in a vote of 42 for, 2 against, and the rest abstaining from voting. Our lawyer drew up the modification document, had it notarized and signed by the HOA president, and filed at the county register of deeds office. The board did not think that we would have the right to ask this homeowner to remove the box after the fact when this amendment was put in place. However, the lawyer, who has extensive experience with HOA and real estate laws, says that the way our CC and Rs are worded makes HOA members agree to abide by any additional amendents that are enacted at any point during the ownership of their home as long as the amendment process was abided by.

The question then becomes how far and at what cost is the BOD willing to pursue this?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Leigh,

I believe you are trying to enforce the wrong covenant.

Yes, the membership voted to have only black mailboxes. Great. That is irrelevent to the member putting up a white mailbox.

Based on your information - the individual made an exterior change (changed color of mailbox) without prior authority from the Association.

Since most CC&Rs have a requirement, I suspect that your CC&Rs have the same requirement that all exterior changes must have prior approval from the Association.

This is the covenant you should be enforcing.
Enforcing this covenant doesn't even bring the new covenant into play (except to show that it's likely the request would have been denied). Enforcing this covenant is also enforcing a covenant that was existing at the time the change was made, which makes his lawyers statement irrelevant.

Hope this helps,

Tim

BrianB (California)
Posts: 2,820

Posted:

question: is it a mailbox, if he receives no mail with it? Couldn't it be a planter, or a decorative feature? Or... almost anything?

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By BrianB on 09/01/2012 9:03 AM
question: is it a mailbox, if he receives no mail with it? Couldn't it be a planter, or a decorative feature? Or... almost anything?

Are we getting existential?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By BrianB on 09/01/2012 9:03 AM
question: is it a mailbox, if he receives no mail with it? Couldn't it be a planter, or a decorative feature? Or... almost anything?

I don't think the play-on-words thing has much chance on working. We went through this not too long ago discussing the "is it a fence or a dog run" issue.

BrianB (California)
Posts: 2,820

Posted:

not too existential, and not too much a play on words. Just thinking that many times, an item can be multi-purposed, or re-purposed, and it can make a difference. Sometimes. this may not be one of those times.

We have folks in our HOA with mailboxes on the street, but they serve no purpose: we have no mail delivery here. So, they are just... address signs, I guess. Or planter boxes. Is it physically the same as that thing which is a mailbox? yes. Does it serve the same purpose as that thing that is a mailbox? absolutely not.

PaulW5 (Pennsylvania)
Posts: 2

Posted:

You can not change a rule after the fact and enforce it against a pre-existing condition. What if your board tomorrow decided that all shutters should be black plastic? Does that backward. Even if it says somewhere in the document that they can do so it is not legal and would not stand up in court. I believe another poster stated you can not pass an ex post fact o rule. Our constitution forbids it and therefore regardless of any state, city, town, or HOA rule it can not trump that constitution.
Now, perhaps you can find a rule that was existing to try to enforce. Such as an architectural change of some sort.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Brian,

This is an old thread. Typically it's best not to reactivate old threads because laws change and what may have been good advice in 2012 might not be good advice today. Reversely, advice given today might not have been relevant in 2012.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By PaulW5 on 01/26/2015 4:19 PM

You can not change a rule after the fact and enforce it against a pre-existing condition.

Actually, yes you can as grandfathering is not automatic.

As an example, I offer the American Disabilities Act. Once that act was created, all public buildings were required to provide accommodations (wheel chair ramps) regardless of their "pre-existing" construction.

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