HOA Board Discrimination

Suing your HOA is suing yourself and your neighbors. So jumping to hiring a lawyer when the issues can be resolved within the HOA itself is just wasting time and money for all. Not saying that there is not a time and place for a lawyer, but truly what is it that the HOA rules themselves can't resolve if you don't try to apply or change them?

A HOA's do NOT maintain home values. That again is a misconception. HOA's are sales tools that are used to attract buyers. The more attractive the property and more control a potential buyer thinks they have the more likely they will be willing to purchase the property. Home values are based on what similar property sales for within a few miles of each other. It's locaton, condition, and size that are home value holders.

Your friend sounds like a third wheel on a motorcycle. It's only needed when a passenger wants to ride on. I applaud his efforts in pursuing his desire to be on the board. However, it is his problem and will be the one that needs to decide what to do.

It does sound like the HOA is trying to correct things if they did send out a notice of a violation even if it was to their own board member. It's up to that owner to comply. The problem is making people comply not the notification.

Tatyana,

Welcome to the forum. I have the following comments/advice based on your posting:


Keep the two things separate. Being a member, a Director and an officer is like working for a company in three different positions. Each position has it's own rights, responsibilities and level of authorization.
You need to look at each position separately and not combine them all together.


Things are done by majority vote on a Board. Therefore, being one vote out of three that Director will need to get at least one of the others on their side of an issue in order to change/accomplish anything they would like to see done.


Unless the courses were required by your governing documents, they would be optional. I agree that if the others two knew about the courses they should have forwarded that information to all members of the board. You can not control the actions of others you can only control how you react to those actions.


Officers are appointed by a majority vote of the Board. If there is no limitation of what offices may be combined, then those individuals did nothing illegal. See Davis-Stirling Multiple Offices web page.


Board Meetings are to be published to the entire membership at least 4 days in advance but for regularly scheduled meetings (every third Tuesday for example)the is no requirement that Directors be informed.

I would suggest addressing this issue of failure to inform the membership of the meetings.


If the window is in violation, then the window is in violation.

Look at it this way, do you think a court would dismiss a speeding ticket on the excuse that others were speeding at the same time but didn't get a ticket? Just because others are in violation doesn't excuse the fact that this individual is in violation.

You as a member also have the right to enforce the covenants. Members enforce the covenants by taking their neighbor to court. If your concerned about the other violations, I would suggest you investigate this option further.


What you have read is correct. The Association and the membership are given authority by the governing documents to enforce the covenants. However, those same documents do not require the Association or a member to enforce. It's optional.


Typically no.

Although Regulation of HOAs fall under the jurisdiction of the Attorney General, this jurisdiction is limited. This is because Associations fall under civil laws (vs. criminal laws).

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 comply with corporate laws in addition to any HOA/COA laws.

As you know there are civil laws and criminal laws. Criminal laws are 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 (example embezzlement). 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.

As Glen said, you need to rally your neighbors and recall the two board members or at least not reelect them at the next election. This will require time, energy and some money (printing and postage) but it can be done. You may want to start by reading and understanding your governing documents and applicable laws. You should also attend every board meeting that you can attend. Encourage your neighbors to do the same and encourage them to encourage others.

Changes likely won't happen overnight. However, they can happen over time.

Hope this helps,

Tim

Happy,

You may: [email protected]

Please note, I am not an attorney and I do not work in the legal field. I can only offer opinions and advice based on the information provided, personal experiences and my interpretation of any research done.

As the e-mail indicates, I only check that address when I am at work. There may be some delay in responses.

Tim

If almost every balcony and window are in violation of the CC&R and only he was given a letter, this could result in a lawsuit that the HOA wouldn't win. It is called arbitrary enforcement.

The board has to have official meetings because they cannot take actions without a meeting. All members, including directors must be informed of board meetings and the time limit is either set by the state or the CC&R.

My husband was the treasurer, elected to that position. He was disposed of by the board which is fine except this was part of their attempt to exclude us from everything. We ended up going to court three times, winning in all cases and moving.

We did not care that this was costing the HOA money because we were forced to move and no one stood up to help us. They were perfectly fine with the board discriminating against us and we know they board was giving others special favors (parking and other considerations).

Document the actions and recall the board. By discriminating against any member, the board is taking on legal liability.

It's not pretty to be at the receiving end as we were and you can't expect any member to give up their rights just to save the HOA money.

So the Association is purchasing the I-pads for everyone?

You have read the contract, it requires hard copies.

The MC works for the Board.
The Board decides how the Association will comply with applicable laws.
The President (if also a Director) has one vote for a Board vote.
Majority vote wins.

Does the management company have stock in Apple? Wow...someone requiring everyone to have iPads what would Microsoft have to say about that.

In general, the law frowns on arbitrary enforcement of the law. If someone learns that others have the same violation or a violation within the same paragraph of your CC&R and that the board is allowing the violation, then they can cross complain that they are being harassed/discriminated against. In court, the board will find it hard to defend itself.

If the person is part of a protected minority group, they can report this to the Fair Housing and ask for an investigation. If Fair Housing finds that the board has a pattern of discrimination, the board can be fined.

The issue with selective enforcement often is, is it truly selective.

An "off" color fence is not the same thing as a "pink" fence although the owner of the pink fence who has been cited will often claim "selective enforcement" using the "off" color fence as their reasoning for their claim of "selective enforcement".

I assure you, there is a major difference between an off color fence and a pink fence.