Former HOA Members being investigated by Sheriff and FBI

Wow it has been a wild ride and the roller coaster is still moving. I wanted to update everyone who participated in my previous discussion entitled "Being Booted for doing the right thing". I won't go over what has been discussed already, just an update.

I want to clarify things, I am in GA not SC. I did post my first post from SC at a relatives home. It was important I did not give away anything while I was collecting evidence and setting up my strategy.

I was asked to remain on the board which I have done.

As of today 12/2/2012 the old board members are no longer. The community voted them out 11/11/12 with extreme prejudice. These (3) ousted members refused to turn over records, keys, bank book to the new board. We had an attorney send them a demand letter which they ignored. They continued to act as if they were board members and continually harassed the community. They went as far as calling the police on the new board for breaking and entering into the clubhouse. They threatened to kill yours truly as well as threatening the new president with a false claim of sibling abuse. That did not work.

It was clear they were not going away so I went to the bank with the meeting minutes and state registration showing the new board members and we closed out the old checking account and opened a new one. This is when we found that they were stealing HOA money. They were buying groceries every couple weeks, bus tickets, fast food, gassing their cars regularly, buying clothes, paying college bills, the list goes on.

The case is now with the Sheriff and FBI.

I want to thank everyone here who offered their help when I needed it. It did make a world of difference.

If I may offer a tidbit for others who face the same thing I did. If your morally and legally right you need to persist when involved with a situation like this. At first I thought I was alone. I quickly found I was not alone and I had a tremendous following. I had donations dropped off at my home late at night, received offers of help for anything I needed. It looked bleak in the early stages but when I felt like tossing the towel I remembered those who supported me and for them I continued.

Who knows how this will play out but I know I did everything in my power to do the right thing and for that I have no regrets.

Happy Holiday!

Excellent, PH! You now are a superb role model for those who want to get rid of abusive or dishonest boards.

Lessons you've taught: It takes a lot of work. It's best if you get support from your fellow homeowners. It can be done!!

PH,

Wow!!, what a story. Hard to believe people can be so stupid and greedy. They may do some jail time but with all the liberal judges out there, probably not, maybe some kind of probation or similar wrist slapping. Good for you, especially when you thought you were alone.

We had some problems, nothing like yours however. It was a long and bloody battle but we finally got it turned around. As you said, if you are right, never give up, good for you.

Paul T

I learned so much since being involved in this mess. I have another update which all but sickens me. Here it is....I was even on the evening news here is the link to the news story http://bcove.me/xtwqdoiy

The FBI stated the offense falls under federal law. It is a crime they will prosecute. But.....since the amount that was stolen was ONLY $5K they can't get involved. Directed me to local authorities.

Contacted the Sheriff who in our state is the authority that investigates fraud. I supplied them with a case that was all but airtight, all the evidence one could ask for, bank docs, receipts from all non HOA purchases proving theft, everything but ATM and POS video and still pictures that only law enforcement can request. The sheriff sat on the case for weeks and did nothing!
I kept in contact with them and when it became clear they were not going to do a thing about the case I contacted Ross Cavitt from Channel 2 News Atlanta. He came out and did the story and it aired on TV for several days and also on radio. They used it as a breaking story.

The day the story broke I was called by the Sheriff and asked to come in and talk about the case. I came in several days later and was told by them that since our HOA had no by-laws, the previous board members were getting away with any theft that was related to the debit card linked to the HOA account. 75% of the theft was by use of the debit card. This was nuts, but they said if it went to court all they needed to say was they were allowed to spend the HOA money for anything they wanted and without by-laws stating they could not, it was all over for us.

That left us with checks and teller cash withdrawals that were not linked to the debit card. These totaled $1400.00 and it was again clear this was not enough to spend county funds to prosecute. Where we stand now is I will be calling the Sheriff today to get their final word. Our only other option is to sue in civil court and possibly win. Of course there will be no criminal charges and since the ousted board members have nothing of value we will not get the money back.

I was once told "Justice was not Just" and only those who could afford justice would see it.

It seems these three thieves are getting away with this. To date not one of them has even been questioned by any authority. All authorities admit our evidence shows clear proof of theft, but are unwilling to prosecute for fear of losing!

To add insult to injury the three ousted members have been roaming the community holding private meetings, getting community support saying they were wrongfully accused and want their positions back on the board stating they have not been arrested so they are innocent.

Only in America!

PH,

With all due respect to law enforcement officers, cops are not the sharpest pencils in the box. They understand armed robbery and will pursue an armed robber to the ends of the earth. They understand assault so they investigate and prosecute assualt. Ditto for burglary, murder, and all the other "street crimes."

White collar crime is usually beyond their comprehension and seldom gets prosecuted unless enough high-profile people are injured. Every time I hear a story like yours I recall a story from about ten years ago where a candidate for a police officer was turned down because he was too smart.

I would take them to small claims court. This could put a damper on their attempts to return to power. In my neighborhood, since the court pretty much ruled against the HOA, their support has dwindled. Before then they had pretty much control over the entire neighborhood. Sometimes it is worth it to stand up for what is right. Couldn't the HOA file a lien on these people's properties?

I am sorry to hear about the pickle you find yourself in.

Sadly, the idea that our legal system in fact serves the needs of our citizens is long, dead and gone. The legal system today for the most part like many branches of government, has been bought and sold out to political interests and influences that use it to serve THEIR needs. As to the average citizen in my expierence it offers nothing but excuses and explanations as to why in the end nothing is done.

I have a degree in Criminology and at one point
some career in the legal field was desirable. Today, I would rather collect cans and bottles before I worked in any role in the legal system.

Many cops today are uneducated, dishonest, lazy, on the take, paid off, have the job only because they filled a quota or know someone, and are counting the days to start collecting their pension. A small few do the work to help or as suggested "protect and serve".

Most chiefs or sheriffs are political people who have kissed people's behinds long enough to gain the position and they sell and deal their authority.

The lawyers in the DAs office for the most part are either young, just starting out and willing to work for less $$$, and as soon as possible go into private practice to make more $$$ getting the crooks out of jail for free. Nice work if you can get it.

I have dealt with more than several judges at all levels of the legal system again they are appointed as part of a politcal system NOT becuase of qualifications. And to sum them up quickly as a group they are some of the most limited, ignorant, obnoxius people I have dealt with. Overpaid, underworked, power hungry morons.

So for my money they should close the court houses down, shut the lights off in the police stations and hand out brooms to those who worked there at least they might clean the area up as this would be more constructive than what they do on a daily basis.

Now on to YOUR situation. No doubt the sheriff has little if any knowledge of the governing documents of your property. The vague documents you describe seem not to serve as an enforcable set of guidelines. I would make sure these are in fact the ONLY documents governing your property.

The DA if they are like most will work to list all the reasons why they can't or won't act. In most cases the real reason being they are lazy, worried about the conviction rate, or have gotten a call telling them this matter is to be dropped. The standards for serving the public and enforcing the laws is set so low most activity is limted to pushing paperwork, having lunch, and patting each other on the back while making deals.

The misuse of your property's funds to buy groceries, tickets, cloths IMO is a crime. Just like if someone in your bank took funds out of your account and paid for their dinner. But as most DAs have in their limited verbal collection my guess the observation will be "we can't prove this" or " this is a grey area that the court might not enforce."

My guess, and I would like to sit in on that meeting if I were you. I have had meeting with several DAs to discuss the merits of a case if you are so inclined.

So to wrap this up my guess the sheriff wil do nothing but pass this off on the DA. My guess the decision to do nothing has already been made. The DA will use a few of their work days to schedule some meeting put on an act like they really might do something and then drop it. Don't get your hopes up.

Small claims court will be tough as they have a $$$ limit, the judges as a rule are not to bright, and depending on the courts in your area they may not allow you to file a claim when representing a HOA or association.

Civil court will require an attorney, $$$$$$, lots of time, and the judges again are not to bright. What are the chances justice will be served???? Very low. What are the chances the court might order repayment of monies????? Not good. What are the chances they might do anything???? Depends on the court, judge, workload, who the defendants know, and many other factors you have no control over.

Today, IMO if you are seeking justice in our legal system you are a fool.
Justice is not blind. Justice is not equally applied. And our
system is crooked from the very top to the bottom.

John Corzine former Gov. of New Jersey and US Senator his investment company lost BILLIONS just blew away in the wind. Never arrested, charged or prosecuted.

HBSC some English bank recently found to have laundered drug
money for the Mexicans cartels for YEARS. BILIONS upon BILLIONS of dollars they profited. When they were caught NOT ONE person was charged.
Their penalty????? $1.9 BILLION which they make in 5 days of doing business. That is the US legal system. If you get caught with a bag of pot you might do time. If you conspire with
drug lords and make profit the system collects a minor "toll" to give the appearance that our legal system worked.

People have given their lives in the name of spreading our system of governement and the famous "US rule of law". IMO their lives were worth far more than the system as it exists today.

And while your small group of crooks might go free IMO we have much larger problems when it comes to the state of our legal system.

And one last comment,WE pay every nickel of the cost to keep this system operating. The taxpayers foot the bill for a system that no longer serves them.

Good luck........................

I had reason to be in a local court earlier this year.
As I waited I listened to the cases being handled before this court.

Ready? Seems this guy was issues a traffic ticket. The fine was never paid and his matter was allowed to drag on for..........Ready??????
16...............YEARS! Now simple math would give you 192 MONTHS or roughly 5700 days.

No procedure in place to resolve such a case. No guidelines to make sure simple matters like this were handled to limit time, expesne and backlogs. Not one member of the court took any action in 16 YEARS to settle this matter. And what was left to do??????? Collect the $25 fine.
$25 DOLLARS unpaid. Nothing added, no late fees, no suspended license or registration, got court date after court date after court date trying to collect their fine.

Now for 16 YEARS the taxpayers paid for the judge's time, the clerk's time, the court officer's time, the secretary's time to reschedule this matter over and over again.

I held out hope it was my lucky day I would actually see the matter brought to conclusion.....case closed.

What a fool I was...... After some legal back and forth between the judge and the lawyer representing this driver the judge asked nicely if the defendant was prepared to pay his fine on that same day............

Ready?????????? Well..... according to the lawyer his client was having problems coming up with the money and could he pretty please have some time to put that large amouint of cash together???? Afterall, its only been 16 years.........

And this judge..... gave this man who owed the town $25...30 MORE days to come up with his $25 fine payment.

And that is how your legal system works and you and I pay for this each and every day in every town, city, state, federal courthouse around the country.

Yes, we need to spread this crap around the world.....

PH,

Do your governing docs give the board the ability to levy fines and the possibility of foreclosure?
If so, then maybe your errant board members might just be committing a whole host of actual crimes such as:
Mail Fraud, Wire fraud, Fraud, conspiracy, Breach of contract and maybe Extortion.

If the HOA isn't truly legal as one of your posts indicated, and they collected dues (which, if they weren't a legal entity they cannot legally collect) and they use the threat of foreclosure and other actions to coerce you into paying, then that is extortion and fraud. This is a very real crime and should be of interest to Law Enforcement.

How old is the HOA? You might want to check the RICO laws and maybe find that the HOA meets the criteria to be considered an ongoing criminal enterprise. This makes it a Federal case and if you already had discussions with the FBI, maybe they can pursue it on this basis.

Because the Courts, D.A.'s and police (LEO) all basically consider dealings between Homeowners and HOA's to be civil matters, they pretty much don't want to deal with any of it. However, if you can show them that the elements of crimes have been committed then you might have a way to get some degree of justice.

The thing that most of the HOA's and Board members do not know is that they often ride that fine line between breaking the laws and doing what is legally allowed.

PH,

I have a situation where my Board has been in Breach of the Covenants (Contract) with regard to the common areas. This breach has been willful and has existed since before I moved into the sub-division. The board absolutely refuses to enforce one of the covenants.

In this situation, it becomes a rather complex mater because this is a contract between the HOA and each owner.
I have brought to their attention that due to the nature of the breach that the entire set of CC&R's is null and void. According to contract law, if you enter into a contract in Bad Faith, such as knowing you are "never" going to abide by one or more terms of the contract then the entire contract becomes invalid (null and void). This is quite different than a simple breach since the breach is evident at the time the contract was entered into by a large number of current homeowners.

This also rises to the level that the contract is fraudulent and that the Board of Directors (actually a number of successive board administrations) have conspired to commit fraud and other crimes. (In this situation, they have had actual board meeting minutes stating that they refuse to enforce the element of the CC&R's in question.

You see, if the contract itself is null and void, then the fact that they threaten to levy fines, take out liens and use the courts to possibly foreclose on your property can now be considered Extortion. (These threats are in writing in the CC&R's themselves. Again, this is basic boiler plate language but the actions in the breach change this to threats since the contract is null. So, in this case doing nothing creates a whole host of broken laws)

The developer turned over the properties in the late 1980's. This means that the CC&R's have, like others have alluded to, become a sales tool. In other words many of us here in this HOA bought our homes based on the promises spelled out in the CC&R's (Contract).

It's ironic that the HOA refuses to follow a rule they made up and now it looks like there are very real crimes being tagged onto it. Taking money in the way of dues or regular assessments and not delivering on the contract terms is Fraud (including wire and mail fraud). Threatening to issue fines and liens if one refuses to pay because of the Breach of contract then becomes Extortion.

The HOA is a pseudo government agency unto itself with the power to levy fines, issue liens and confiscate property. It is an abuse of power to threaten to use the courts as an extension of the fraud.

Though the courts generally view all HOA matters as civil matters, I have shown the local D.A. that there exists a fine line between these civil matters and real, tangible criminal acts.

Now Fraud, Extortion and the decades long existence of the HOA put it in the RICO laws which makes it eligible for Federal prosecution as well. You will find that the FBI is a lot more savvy in these sorts of white collar crimes then the local street cop or Police Department. Because the Fraudulent situation has existed for many years, it is considered an on-going criminal enterprise.

I have been here 11 years and am a member of two committees and have run for the board numerous times. All the while trying to get the HOA to follow its own rules. I have a small minority of neighbors who are directly impacted by the issue but the current and last board have now begone violating other elements of the Davis-Stirling Act and taking out retribution on the group of owners asking the board to follow the rules and seal the breach. The governing documents are pretty clear on the subject so it is truly a willful breach.

No one wants to see any criminal charges filed but the BOD will not budge on the issue and it seems they would rather go to jail then follow the governing documents. That one really baffles a lot of us homeowners here.

LarryB.,

Well, can't give many facts because it is an ongoing issue. As I stated it is very complex in that with HOA's you are mixing real estate law and contract law at the same time. So, while, as you say, the courts grant discretion to the HOA in what they will enforce, the very fact of the matter is that in contract law, you have to deliver on the promises made. Otherwise you are in breach.

If the HOA BoD refuses to enforce one of the terms of the contract (CC&R's) then they are in breach, plain and simple from the contract perspective.

Since, the CC&R's (in Calif) have to be disclosed before sale (closing) and can (should) be requested by the prospective buyer to review before closing (side note - this is the third HOA I have lived in and on my offer I made it contingent on me reviewing the CC&R's and approving them). In essence, as others have said on this board, the CC&R's are a sales tool. So are you telling me that the BoD is entitled to commit real estate fraud? This is by making false promises to entice you to purchase into the community... (that is textbook Fraud which happens to be a real crime in the penal codes)

That is precisely the issue in that the sub-division is advertised as if this covenant is being enforced. Come to find out after moving in that it is not.
Turns out that the lack of enforcement has a direct impact to approx 74 homeowners out of 220 in regards to impacting their peaceful use and enjoyment of their properties and the common areas.

The other 146 homeowners are not directly impacted so there's the rub. We are forced to endure a situation that we were falsely sold (fraud). Yet, we do not have the numbers to force a vote to correct the situation. After years of trying to work the process correctly from within, as all the advice from many of the poster's on this forum suggest, I joined two committees and ran for the board on numerous election cycles.

We have brought the issue of this non-enforcement up for about two years now and the board refuses to take it to a vote of all 220 members. One thing they did last year was send out something they called a "Non-Binding Survey" to gauge the feel of the community on the issue. Of 220 owners there only 110 survey's returned (most likely had to do with it being labeled a non-binding survey). The count was 44 for the board to enforce and 66 against. Since it was just a survey it should have led to us bringing it to a vote.

Then all sorts of violations started to happen (in regards to the board following the Davis-Stirling Act). Such as:
1.) D-S states that in any vote (sic) both sides of the position are entitled to be stated on HOA media (newsletter etc). This was not done. Only the con side of the issue was addressed on the survey itself.
2.) The President of the board stated that they counted all Non-returned survey's as "NO" votes as an indication of lack of interest in the topic by those owners. A non returned vote is just that, non-returned. It should not count either way.
3.) The board has now (just this month) stated that the survey results are now binding and the issue is closed. So how does a non-binding survey now become a binding vote to elect to not follow an actual Deed restriction on common area's? This should be a vote to amend the CC&R and they are circumventing the law (D-S) by doing this.
4.) No election procedures were followed for this survey which is now a vote. No inspector of elections, no Pro - Con arguments or positions stated. Now, the actual ballots cannot be located after a few of us requested in writing to view/inspect them.
5.) Since the board has been of the opinion to not enforce this covenant, and their paid employee (the property mgr) is the one who counted the votes, it was no surprise that the results were what they reported. Air of impropriety?

By the way, per our governing documents, there needs to be a supermajority (147 votes out of 220) in order for a change to be made to the CC&R's. They have circumvented our governing documents by doing this.

Oh and since I have been the voice of asking for compliance with the CC&R enforcement I have been subjected to the following:
1.) was nearly run down in the crosswalks by a board member. I was on foot walking my dog and was in a legal crosswalk as this Board member approached, gunning her engine and nearly hitting me and speeding off. I had no witnesses that I could find otherwise she would be in jail.
2.) I have been written up for violations that don't even exist in our governing docs, bylaws or policies. This resulted in threatening letters to foreclose on my home and or take immediate liens out on my home with no due process.

It was "AFTER" these actions of retribution that I started researching the aspects of the on-going criminal enterprise (RICO). From the contract law side of things, very real Fraud has taken place.

You were right in regard to the fact that the Declarant wrote out the original CC&R's thereby setting the "INTENT" of what they wanted the neighborhood to be. The docs were generated in 1982 and there were at the time a very small number of owners already in the neighborhood. The story from my neighbor who was the first owner is that it started out as just a regular sub-division of supposedly estate type custom homes. After the first few, the developer decided to go the HOA route and managed to get the 3 or 4 original owners to agree to it. In doing so, these first few owners were members of the board with the declarant as well. Sort of a hybrid I guess. I wasn't here then.

All I do know from my neighbor is that the CC&R's were written with the involvement of the few owners at the time, for good or ill. Three of those first five original owners are still here.

I can see why you might be perplexed. However, I like to think I did follow the correct course of action so far in that I read the docs before purchase, I joined the community and after a few years tried to get involved as I discovered the extent of the breach of covenant. Tried through the process to get the situation rectified. Ran for the board, joined committees and met many of my neighbors. I think this proves I tried to do things the right way. Now after exhausting all options I have come up with an approach that is following the contract law side of things.

So, as others have stated on some of the other topics I have read, if the Board does not enforce the CC&R's then that sets a sort of precedent (within the HOA itself) that the other CC&R's are going to have a hard time being enforced. Now, we all have deed restrictions on our owned parcels and if I remember correctly, a "covenant" is what you call the deed restrictions on the common areas of the HOA.

What perplexes me is why the HOA BoD will happily enforce the deed restrictions on the individual owned parcels but refuses to enforce the rules on the common areas which in my mind, they have a basic responsibility for. I mean, the dues are collected to pay for the Common area maintenance and insurance. That is their purview so why is it optional that they not enforce the rules that are specific to those common areas?

As this forum states, each and every owner has the right to enforce the CC&R's on each and every other owner. So, when we have a CC&R that states the Board of Directors will take Prompt and reasonable action to mitigate a nuisance or prevent damage in the common areas, isn't that a specific rule that says they must act? Hence the foundation for the Breach of Contract action and the other criminal acts such as fraud and such.

Also, there is no clause in the CC&R's of bylaws that mentions the severability clause. In any case, it is contract law that states that if you "Knowingly" enter into a contract with the intent to not deliver on one or more of the conditions of that contract, then the entire contract is void. This is because it was entered into under fraudulent pretenses (bad faith). This is the very situation we have here for any resident that moved in after 1996 when they made the conscious decision to not enforce the covenant. BTW - they did an update of the CC&R's in 2000. What I was given at closing was the "re-stated CC&R's" filed in 2000. The covenant they are violating was in the old and the new versions, yet the HOA had the opportunity to eliminate it and did not. The community had the chance to amend this out and they did not. I think that the contract is not valid at all. So now we have a situation where for a few of us, the CC&R's no longer, technically apply from a contract sense, but they may still exist from a Deed restriction sense. Like I said, it is very complex.

Under contract law, this contract with the HOA is an "Adhesion Contract" meaning that we (customers) are not given the opportunity to negotiate any of the terms. it is what they call a "take it or leave it" contract. Since no negotiations were allowed, the contracts has to be followed by all parties. This could end up setting some legal precedents for dealing with the relationship between owners and HOA's. Let's face it, a house purchase for most people is the largest contract they will be involved with in their lives. The expectation as a consumer (owner and member of my HOA) is that they (the HOA) will honor their promises made in the contract. Maybe i am asking too much. But a contract is a two way agreement. How can they hold us owners to it and yet they not follow their obligations from it?

FredO

Your situation does seem very complex. I have only been involved with the HOA for a very brief time. As I stated several times our CCR's are very simple, basic, and mirror county code. There is a statement though that I feel does reflect your situation. Ours state that the CCR's although written for the protection of the community are at the discretion of the officers to enforce as they see fit. It also states that non enforcement of any or all of the CCR's does not constitute breach and does not render them unenforceable.

I am not sure about yours but it seems that ours allows that type of behavior and the homeowner basically has no say.
Of course if you read over the CCR's before you buy or rent you would have the option of saying heck no I do not want to be governed by these rules.

In my case when I bought my home I was never presented with CCR's and I was specifically told there was no longer an HOA by both the realtor and closing attorney. I never saw a covenant nor did I sign a thing. My deed was a warranty deed which did not include any community rider. What a shock a year after I bought the homeand I was confronted by an HOA that was dormant and decided to wake up.

And here I am...............

I am not nor do I play a lawyer.

I think you will find that most Covenants have a Severability Clause. Ours do.

Definition of 'Severability'

A clause in a contract that allows for the terms of the contract to be independent of one another, so that if a term in the contract is deemed unenforceable by a court, the contract as a whole will not be deemed unenforceable. If there were no severability clause in a contract, a whole contract could be deemed unenforceable because of one unenforceable term.

Larry

Seems we have had a few cranks recently.

Happy Holidays

Seems this tactic of challenging the contract law now is the latest avenue being used by the HOAs suck crowd.

We seem to have blogs, newsletters, and repeated posts representing these folks came up with this idea on their own.

One blog I read was almost 5 years ago and then nothing.

Yes, just like Mike who lives to prevent HOAs, all of them, from "spitting in the face of the Constitution" seems when these folks are unable to get their way because they have no real support (except for the MILLIONS Mike claims) they turn to the legal system in the hopes the RICO laws, wire fraud, mail fraud and perhaps jaywalking can be charged.

Well glad we have not had any of these yo-yos appear here.

To John and Larry thank you for sheding some light of common sense on this matter.

Sounds like the moon must be full for the last few days.

Happy Holidays Gentlemen and Best Wishes for 2012. May you life be void of self-proclaimed legal experts.

Gee larry,

You say I am unwilling or unable to take any meaningful action. Just what is meaningful action to your definition?

I have tried to join the board, I have tried to engage the Board in respectful conversation. I have invited board members for coffee and out to lunch for a talk in a casual atmosphere. (in a manner that does not violate the open meeting act, one at a time) I have utilized my governing documents to address the issue and initiate conversation. The problem, as I stated impacts a minority of the residents (74 out of 220). The rest who do not have to contend with the issue on a daily basis are, honestly apathetic. It is not about lacking merit it is about NIMBYism. People won't act unless it directly impacts them.

Interesting side issue - The board represents all owners. Yet, not a single one of them represents us owners in this issue. There is no Board member we can go to to seek advice or representation. I have greater access to my public officials than we do of the board that supposedly represents us. By its very nature, the relationship between owners and the HOA is an adversarial one. Isn't it the American way that we should be able to go to our representative to have them be our advocate to the rest of the Board. In Board meetings, we in the audience are not allowed to make motions. This only comes from the board members themselves. If we don't have access to them then how is any sort of grass roots change going to be made on ANY topic?

The issue is about a promise (condition) made in the contract, that is not being followed to the detriment of the homeowners impacted by this breach. None of the board members live in a house impacted by the covenant not being enforced.

So, what action, per your expertise is needed to be done? Since you are expert in these matters, it would be refreshing to hear a real solution coming from you instead of insults (when one resorts to insults, it means their position is not sustainable and without merit).

As I pointed out, if the issue is dealt with from a contract law perspective, then stuff will hit the fan. I have followed every available option in the governing documents and per the Davis-Stirling Act and dictated by common sense. What do you suggest, specifically? The problem is that the issue impacts a minority of members, so there is no way to get beyond the voting issue. In order to rectify the problem, it seems that the issue has to be dealt with by pointing out the legal issues stemming from it being a breach of contract and the consequences of the origin of the breach. If the Board came to the table and agreed to seriously work on the issue, we would drop everything in a heartbeat. Unfortunately the Board refuses to work (in what would be in their own best interests) so they will have to deal with the chips as they land.

With that said, I wish you a Merry Christmas.

Fred

There is no question that some BOD's are made up of fools, idiots, stupidos, etc. and they deserved to be sued until it hurts.

If that is the case in your HOA, then gather the wronged owners into a cohesive group, collect a legal war fund from them, hire an attorney and sue the HOA's a$$.

Spouting off, seeking free advice, making accusations, etc. is wasted time and might well be the work of one crank or even paranoia. Every HOA has at least one crank as an owner. Usually the best indication that the person is a crank is they they cannot gather support for their cause(s).

If you are right....then go for it....otherwise....reevaluate.

JonD,

Thanks for your very valid insight. I do not disagree. No one is taking the path of going to court as a first option. It is after a long duration of trying to get a problem resolved through the proper means specified in our governing documents and in the Davis-Stirling Act. You folks on this board are all the sound of reason for the most part. I have been reading posts here for about six months and find that I agree with most of the sentiments espoused.

The criminal offenses are a tool to get their attention. My God, no one wants to see a neighbor jailed for something as stupid or as petty sounding as a covenant. The heart of the matter, as the onion gets peeled, is that the board (actually successive boards for nearly 10 years) has slowly morphed the development into something of their own vision. in that vein, they opt to enforce some rules very vigorously and others they fail to enforce at all. It is clearly evident that they are picking and choosing which rules fit their view of what they want no matter how far it deviates from the original developers intent.

The one thing about absolute power is it corrupts absolutely. The majority of board members have been on the board for six to nine years and they have slowly, over time drifted from their own reasons for joining the board. They single out anyone who runs for the board opposing them.
But when power goes unchecked, things get perverted from their original intent. The board has bullied those individuals who seek a check and balance approach. These actions then fuel further actions as they lean to the dark side as it were.

One other Person and I ran for the board in 2010 for the June election then mysteriously we were both written up for fabricated items not even covered in our CC&R's or by-laws. The letters were very threatening. I later found out from a neutral member of the board that this other person and I were singled out by the majority members for daring to run against them. This neutral Board member told me that when he objected to the fabricated non-compliance letters that the majority was going through with it anyways just to show us "who is boss". Because he spoke up for fairness, he was also marginalized on the board. he is a lone voice of reason on the board today.

We had not done anything except run for the board. It was one of these majority members who subsequently tried to run me down in the crosswalk. I filed a police report to get it on record. Another petty but important issue that exemplifies the conversion of the sub-division into their personal aesthetic is through the lock on the ARC which is appointed by the board. The ARC is populated with this majority board members spouses and personal friends. For the last 10 years whenever an owner has wished to replace windows with like windows the ARC has only allowed "gridded" windows to be installed. Our ARC guidelines state either grid or plain windows. Those who wanted to replace plain windows with the same look & feel plain windows were told the only windows that would be approved are grid window designs. Yet we are an HOA of single family detached custom homes.

The process here which they use to control their lock on the board is to bully people by writing them up for some real and some imagined non-compliance. Put 'em on the defensive is their plan.

So, in regards to gathering community support, of the 74 homes who are impacted by the non enforcement of the covenant, I have 44 owners willing to stand up with me. The rest are afraid of the retribution that they have encountered or expect from standing up to the board. This results in an even smaller number of people standing up. many of those who are impacted are retired or have health issues and do not want the added stress from trying to fix things.

To some extent there is a lot of apathy and this saddens me. Like I said, I am about to go into mediation and hope to avoid having to fall back on the criminal aspect of the issue. However, they exist and can be a useful tool (of last resort).

As you know, initiating a lawsuit in civil court is a very costly undertaking and there is no guarantee of success in the courts. With this in mind, who wouldn't consider turning the issue over to law Enforcement to prosecute the crimes. This would surely get the bad board members removed from office and give us a clean slate to get decent board members in place.

The war chest is a great idea and I thank you for that. it is my hope that we can avoid all this unpleasantness and come to an understanding on how to enforce the covenant in such a way as everyone is OK with the result. (I am not out for a "it's gotta be all my way or else" routine. I have offered a number of solutions that any one of which would work).

May you have a Merry Christmas and Happy New year.

JohnC46,

Thank for your post. One of the reasons I even started this post (thread) is to help me re-evaluate my position and actions.
I do have support, 44 of us. I have not done the war chest thing but that is an awesome idea.
The problem as stated is that it is 74 of us negatively impacted by the HOA's breach. there is no way we can win if the issue were brought to a vote.

We are not just ranting about the situation. We have come to the HOA with viable solutions for us to try and work on together. This effort has obviously bore no fruit and as you state is a waste of time.

the HOA (Board) is using the tactic of force the "complainers" to sue us. Call the bluff as it were. We (I) have tried to use and follow the procedures and processes spelled out both in law and our governing documents. This has gone on for two years without result or proper response from the board. It is their intention (IMHO) that they want us to spend money and take them to court (they have actually said as much in a Board meeting). How can this possibly be in the best interest of the HOA?

Some facts that they do not know that I know, this HOA has a very BAD reputation in the local superior court. It seems that in the 3 years prior to my purchase, the HOA board was very overzealous in filing lawsuits against owners. So much so that the Superior court got upset and chastised the HOA and then found that the HOA was consistently on the losing side of those court cases (that the HOA was filing). The Superior court told the HOA that if they ever show up in court again, it will not go well for them because it seems they can't take care of their business without the courts help.

So, the board is very scared if I take them to court because they know they will get spanked. Yet, they just want to call my bluff and force me to spend money. I don't think this is wise for the HOA as it will cost us all a lot of money and result in increased dues. But the Board refuses to sit and talk to resolve the issue in a way that does not cost money (lawyer cost, damages, etc).
Do i want to sue them? No. Do I want them to fix the breach and follow the rules? Yes!

Has this board demonstrated that they are infected with some varying levels of corruption or situational morals & ethics? I think it has.

We have a severe case of apathy within the membership that is a direct result of past bullying. I know a lot of neighbors who just want to be left alone and go along to get along. they don't wish to make themselves a target or give the board members reason to come down on them.

I've seen a lot of post of yours that supports wrong doing,acts of crimes,
Etc.
In my opinion, you don't always get rewarded with money.
It's doing the right thing,civilly or criminally.
If it's wrong,make it right.
That's why we pay police,and pay for jails you nim whit!!!