Sue the BOD

I got to tell you folks, from some of the posts I see out here some of these BOD's need to be sued. In some cases for stupidness in other cases for trying to control.

If many BOD's are as bad as some posters make them out to be then my advice is:

1. You talk to other owners and see if more then a few believe as you do. If less then a few do, then maybe you are the root of the problem. Get over it.

2. If others feel the same (the more the better) then form an ad-hoc group and present your feelings/beliefs to the BOD. Give them time to consider and change.

3. If the BOD takes no action then stop anguishing over it. Gather the ad-hoc group together and discuss recall or running candidates in the next election. A lot of hard work but it can be done.

4. If all else fails then collect money from the ad-hoc group, retain an attorney and go from there. Some of these BOD's need to be hit up alongside the head fast and hard.

Ok....I have vented....LOL

Unfortunately, I think John is right. Sometime back I wrote the California Attorney General's Office regarding unfair practices of our Board. Long story short, they said "We suggest you hire an Attorney".

Paul T

As we all know, typically, there is no State or Federal government agency that can be contacted to gain assistance. Therefore, it's up to the membership to take care of the issues themselves.

In general, the CC&Rs (deed restrictions) are considered a civil contract between all owners of the properties that have the same deed restrictions attached. Associations are formed to maintain and/or operate the common area and fulfill any services (trash/recycling, snow removal, street lighting, etc.) required by the CC&Rs. Per the CC&Rs, the Association is also given the authority (in addition to the owners) to enforce the covenants, restrictions and conditions of the deed restrictions (contract). Typically, Associations are incorporated (usually as a nonprofit) as this provides them certain advantages. As a corporation they must also comply with corporate laws in addition to any HOA/COA laws.

There are civil laws and criminal laws. Criminal laws are usually enforced by the State. Civil laws are usually enforced by the individuals involved and they do this through the court system. Since contracts, hoa/coa laws and corporate laws are considered civil laws, there is typically limited governmental authorities to "oversee" or enforce those laws.

Sure the State corporation commission may fine for not filing the annual report on time. The IRS will certainly go after the Association for failing to file taxes. The District Attorney will prosecute if criminal laws are broken (embezzlement for example). However if the Association doesn't comply with the Bylaws or a civil law, it's up to the membership to hold the Board accountable. The easiest way would be to recall the board or not reelect them to the Board. The more expensive option is to go through the court system.

This is why it's imperative that the members remain active in the development and actually take an interest in how the Association is governed. If apathy sets in (and, unfortunately it does), it becomes that much more difficult to change things when issues are discovered.

Hopefully before there are issues or at least when issues do arise, the best thing a member can do is read and understand the governing documents (CC&Rs, Articles of Incorporation, Bylaws, resolutions) and applicable State laws. This why they can identify if the issue is real or perceived. If the issue is real the easiest way to address it is to approach the board about it. If they are not listening, the next easiest is to vote the Directors off the board either by recall elections or at the next scheduled election. If there isn't enough support from the membership to recall or replace the board, then the only other option is the court system or moving so you are no longer under the Boards authority.

Additionally.

Personally I do not want some politician and/or bureaucrat trying to making rules about associations because as we most often see, the fools end up tripping on their own shoelaces every time they try. They never seem to get it right.

You might not be the only one with the issue, but you might be the only one who is willing to go public with the issue. In our case, we knew that two people felt the board had put us in a difficult situation but they weren't willing to stand up. Or they didn't want to invest the money.

In the case of closed/secret meetings, then the other members really don't have an idea of what is happening.If the board then makes accusations against the "troublemaker" most people will step aside and wait to see what happens when the dust settles.

The board would not admit that they had lost in court, three times. This wasn't part of the newsletters. Liars often come off better because they are willing to tell people what they want to hear.

When I was relocating to SC I asked a friend of mine, a retired FBI agent who had been an angent in SC, about organized crime in SC. He said there really was no organized crime and his experience was the real thieves here were the politician, judges, and lawyers.

John,

That is certainly a very valid point. In my own experience, I didn't know I had support until three years after I started having my issue. Part of the reason for the three year wait was the education process for the membership and the fact that those on the board who did support me were too timid to openly voice it until change happened.

You are very correct in the need to step back and ask if the issue is real or perceived. Those wrapped up in the issue always consider it real even when others, who are not directly involved, consider it perceived.

I'm with you. I regret becoming involved in my Los Angeles HOA. The business practices at my HOA are terrible and frequently illegal. Trying to be proactive is just a lesson in frustration. If this was any other kind of business the HOA would have gotten in trouble with the government, but not true with an HOA. You are on your own. I have little recourse. It's awful.

The 2011 law in Indiana is too young to draw conclusions and the case I cited is the first. So I think it is too early to say if it is a good or bad law.

The three times we went to court, we had two different judges. One really tried. The other didn't do her homework and couldn't be bothered to even write out the judgment in detail. I do not feel that either was dishonest. I challenged that judge's decision, but I have a better education and am more persistent that your average Californian.

Moreover, I don't think using anecdotal information is helpful. I prefer facts and statistical information.

I disagree with John and Paul. To be so dismissive is to say that you feel all the laws are silly/foolish. This is not the case. We have laws. Some are sensible; other are not. To say all politicians and bureaucrats are fools is the fallacy of generalization. The fools never seem to get it right, is also a fallacy of generalization. John's example of the FBI agent is the fallacy of anecdotal evidence.

The law in Indiana appears to be extending the law over non-profits to include common interest developments. In California, common interest developments are defined as non-profits.

The problem in California for my situation was not the law. It was and is a matter of enforcing law. We had laws; we cannot enforce them without a major financial investment. Not everyone can make that kind of investment. It has a chilling effect on the community. If you can't afford massive attorney's fees, then you have to put up with the bullying.

I also disagree with Melissa who often says suing the HOA is suing yourself because most laws governing common interest developments are civil law (also corp/business law). Therefore, it becomes a matter of suing for enforcement of civil rights. It is suing for yourself and others to protect your civil rights and not that different from a citizen suing the city or state for civil rights violations. Not being able to vote in your HOA is not that different from not being able to vote because of your race/religion and might actually be because of your race or religion. Either way, it is about prejudice.

In California, we had the case of Bell, the city where corruption was investigated and revealed by the Los Angeles Times. In California, city council meetings come under the Brown Act upon which the Davis-Stirling Act was based. The Brown Act is for public governmental organizations. The officers/officials of Bell were taken to court by the LA County District Attorney.

This means that no citizen of Bell was required to attempt to sue and foot the legal bills. Consider what happened in Molokai condo dispute (Ke Nani Kai Association of Apartment Owners). Not all the persons who had a complaint were able to join the suit because they could NOT afford the attorney. The lawsuit took a few years (began in 2008 and jury decision handed down in 2012). If the none of the complainants had been able to afford an attorney, would anything have changed?

Justice should not be a luxury for the rich and well-educate.

I'm with you. My HOA is completely broken, I tried to be proactive and participate. I gave a lot of my time and energy to it and did a good job. But it's sick and the only thing that will fix it is the government stepping in. The HOA will have to be told it has to enforce its own laws. Otherwise there is no reason for the HOA to change its ways. But in California the only thing you do is hire your own attorney, you can't expect the state or city to step in. I think it is shortsighted to say that it would be worse if "bureaucrats" were involved. That is just a word.

I don't want to touch the rest of this post with a 10 foot pole at this point...but some have lost the forrest for the trees at this point...Seriously, you lose your right to vote in a HOA because you did NOT pay your dues. That is the ONLY way one can lose their power to vote. I know too many people who stop paying their dues out of protest of a decision then get frustrated because their voice isn't being heard. Your voice is your vote and your participation level. That means being in good standing at a minimum to have the power for change.

HOA's work just like a quasi government along with being a corporation. The board is elected amongst the general membership to be the ones to represent the HOA on a daily operations. Much like we vote on Senators/Representatives. They are supposed to based on feedback from the majority of general membership make decisions that best represent what the majority of general members want. If the members want to paint the roads "Red". The board is supposed to find out the costs of the project, make sure the rules allow it, vote on it, and make it happen. Sorry if your the only one who thinks it's a stupid waste of money and time. However, the majority of squeeky wheels who showed up at the meetings, had the right to vote, and made the effort get the cheese...Maybe if your not getting on the board it's NOT because of the board members existing... it's because YOUR not getting voted in or enough majority voters to kick the board out. That is the reality.

Having more government involved in your HOA? Are you kidding me? The HOA is designed to be it's own government and make it's own rules. So instead of looking at outside sources it's time to look inside. That means EDUCATING fellow owners and being educated yourself on how a HOA actually runs. Maybe do a few workshops every now and then on the rules. Education goes a long way when your dealing with VOLUNTEERS who don't know a thing of what is going on until they actually get the position they are in. Takes a year atleast to get things figured out in most HOA's. Took me 2 years to straighten out mine alone.

So read your rules and see the powers within not OUTSIDE. Yes, suing your HOA is suing yourself and your neighbors. Where do you think the money for the HOA comes from to hire their lawyer to represent them in court? The dues you pay or the special assessment levied...Has nothing to do with your right to sue. Just the pool of money the money comes from...

I highly doubt that getting the attorney general to take action against the HOA board of directors would be easy. Getting a city/county attorney to take action is also not easy. You'd have to meet certain elements of law. If you've ever dealt with the city, you know that it goes through several checkpoints before action is taken.

As it is, it is too easy for the HOA board to take action against members. It costs them nothing. It is free and easy. Our board ignored the evidence and due process. HOA boards should be under the same legal constraints and scrutiny as other non-profits and there needs to be a check to the HOA power that is almost as easy as the HOA's own power to bring actions against its members.

Paul:

I was thinking that in the case of low priority areas (like where I live), it would be harder to get action as opposed to high priority areas (Beverly Hills and San Marino).

I was able to change policy the city where I formerly lived and it took two years.

I'm pretty sure that no one in my former community will want to challenge the current board because of the language barrier and the cost.

Even good laws can be abused, just as even religious tenants can be distorted and abused.

JJM

I am a college graduate with an IQ in the 130's and a reading comprehension worthy of a university professor's. I have contributed an essay to a college textbook. I have represented myself in the courts at every level for the last 35 years. Yet, with all that backgound, I cannot make heads or tails of California's Davis-Sterling Act, especially those parts dealing with seeking relief in the courts. Never in my lifetime have I seen so many good intentions run so amok.

For example, JM has posted about having to go to small claims court followed by mediation. Three times! In any other state, one would seek an injunction in the equivalent of Superior Court, obtain a judgment, and that would be the end of it. Davis-Sterling is what you get when you let the politicians and bureaucrats take control.

You are absolutely correct. The only point I would make is to sue not for money, because that affects the homeowners, so sue for changes. Refer to my current case that I filed in court; http://www.oscn.net/applications/oscn/GetCaseInformation.asp?submitted=true&viewtype=caseGeneral&casemasterID=292819&db=Canadian

If someone sues for changes rather than money, the person is to be taken more serious by not only their hoa, also by the courts. Changes to the way the hoa conducts business will result in basically being able to live in the hoa jurisdiction peacefully. If someone sues for money, they may win the case, they may not. If someone sues for money and loses, the defendant can counter sue and the plaintiff may incur steep damages. Prior to suing, the person must ask themselves, are they only tired of the hoa or are they just wanting money for some bill? The courts decide on cases everyday that involve fraudulent lawsuits, so they are more apt to be pursuaded by the defendant on certain case criteria. What if the case goes before a jury. Within that same jury are hoa board members that have a hang up with money hungry individuals. The plaintiff's case could be more at risk than suing for changes. There are alot of what if's in a case that the plaintiff must consider.

Good for you!! Looks like your Board violated State election laws? Some years back we lost the ability to lien for unpaid fines. So, in our case the only thing we can do about unpaid fines is to suspend amenity and voting privileges. As some of our repeat violators tell us "fine me till you turn blue in the face, whoever buys my house is not liable for my unpaid fines, so there!!". Our committee recommended unpaid fines be turned over to a collection agency. The Board rejected our recommendation.

So, being fined may not be the end of the world.

Paul T

While Ann's website is loaded with personal beliefs/conjecture, it does appear the BOD was heavy handed especially the repaint issue so maybe the BOD had it coming.

Some BOD's (I believe the minority) do need to be hit up along side the head and/or sued.

Many HOAs are administered by corrupt boards. In my case, the BOD over-stepped has its authority for more than 10 years. It was only my courage and deep pockets that allowed me to prevail. Despite physical threats and slanderous rhetoric, I will pursue the principles underlying my claim: the right of the homeowner to vote as prescribed in our CCRs. It is naive to believe that BODs are mostly benign despots. BODs are comprised of people -- remember, power corrupts and absolutely power corrupts absolutely!! Below is yet another egregious example of BOD corruption:

October 9, 2012
State panel removes Homeowners Association executive board for violations

Las Vegas, NV – The Nevada Commission for Common-Interest Communities and Condominium Hotels (CICCH) yesterday took unprecedented action to remove the entire three person executive board of the Autumn Chase Homeowners Association (HOA) board, effective immediately.

The Real Estate Division of the Department of Business & Industry brought the case against Joseph Bitsky, Barbara Bitsky and Hellen Murphy to hearing before the Commission, alleging that the respondents knowingly and willfully committed multiple violations of state law. Violations included failure to prepare financial statements as required, acting outside of the scope of their authority as provided by the homeowners association’s governing documents, failure to conduct board elections, and retaliating against unit owners for making a complaint to the Real Estate Division.

The Division also alleged that the Bitskys failed to act in the best interest of the association when they used the homeowners association’s operating account and credit card for their own personal enrichment 148 times amounting to the improper use of more than $10,000 of association funds.

Ann

We can agree to disagree. Any corporation (HOA or Fortune 100) is subject to corruption but I see corruption as the exception, not the rule.

I do see more ineptness in HOA's then I would care to see, but ineptness is not corruption.

As said, we can agree to disagree.

In our case, our HOA had already given us a hearing to pay for improvements. This is to say that the so-called damages that needed to be repaired cost much less than what they actually wanted to charge us.

The board portrayed us as money-hungry, but of the two judgments against them, the one that included a fine (that didn't pay for all of our costs) was the one the board paid attention to and not the one where the judge has just recently re-iterated is only a request for production of documents.

It would have cost our board nothing to give us the documents and allow us to attend meetings. Stripping a citizen/member of their civil rights should carry some weight particularly if it is discriminatory and continual.

We won our cases, but it still was at a financial loss and we moved.