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TerryB6 (Oklahoma)
Posts: 38
Posted:
Our association board was reduced down to two members; all others had resigned due to conflicts with the remaining members. The board started to call for elections back in October of last year. Four attempts at obtaining a quorum of residents in order to have an annual election had failed. Finally, enough residents were gathered to have an election in January. I had previously been approached by several of my neighbors about running, so I agreed to help. Armed with a few proxies from residents on my street, away I went. Five residents were elected; I was one of the lucky few.

In the beginning, everything seemed to be rolling along quite nicely. I was wondering where all the horror stories were coming from about the current BOD President (re-elected) as there did not appear to be any basis for concern. Then it happened...
For two BOD meetings, no financial report had been given. Any previous questions had been answered by "Here's the checkbook if you'd like to look at it." At the next meeting, a simple sheet was presented; it had an opening balance, a few deposits listed, a couple of utility bill amounts listed, and a closing balance. When asked for previous months, the past two months were also presented in the same format. No explanation and very minimal detail. After the meeting, a board member plugged the numbers from the financial sheets into some accounting software, and found a shortfall in excess of 1,000 dollars. When this was presented to the BOD President, the response was "I just added wrong". On the financial sheets, the opening and closing balances were scratched out and changed to reflect the shortage indicated. No explanation of where the error was, no missing invoices or receipts, nothing. Just "Ooops, sorry."

That's when the feces hit the orbital air circulation device. Another BOD member discovered that the board did not have anyone on the bank account. No elected board member or officer. Simply the President's neighbor. This neighbor had sole access to the account for 325 homes. Not even the Treasurer was on the account. Finances were shuttled back and forth from the neighbor to the President. All financial information came from the President, as he had "his own accounting system that he was used to using." Two board members approached me and asked if I'd be willing to go to the bank with them. I agreed. The bank visit resulted in the "neighbor" being removed from the account, and the account locked down until a minimum of two board members can get added to the account. A credit check is required by the bank. I'm the only one at this point that has qualified to be on the account. Access won't be granted without another party.

Then the Facebook wars began. Neighbor against neighbor. Board member against board member. I am the only one that refused to become engaged with that fiasco. From what I'm told, the personal attacks were vicious. One members personal finance troubles were posted on FB, as well as court records from their past. Long story short, all have resigned, except me.

Can anyone help?

Thanks...
DavidR26 (North Carolina)
Posts: 3
Posted:
Terry,

I'm a new HOA President too and lack the experience and knowledge of the many fine contributers here, but let me give you my newbie perspective.

You have an amazing opportunity to excel and to lead your organization to great things. You've been wise to avoid the infighting. All that is in the past and since you'll never know all the truth I'd say jus tlet it go. Be unemotional about the past.

Set a simple course to reorganize your HOA and its most basic processes this year.

Dig through your CCR and find out exactly what is needed? Was the last election legal? If so you're the last one left. What does your CCR say about replacing Board members? If it says the Board can fill vacancies then you get to choose the board. Go get those folks that put you up to running and get them involved. Replace all the board members, appoint yourself (through playing "not it" with your new Board) and come up with a simple plan of action to reestablish your organization. Get an audit, make sure you have insurance, develop a very simple budget that keeps the lights on and pays the bills and saves evertyhing else. Get a beautification committee for a work day. Do whatever you can do to ensure that come next election you have reorganized the basic structure of the organization and set it up for success. By the time the next election comes around maybe most of the emotions will be gone and there will emerge a new group of folks that want to contribute and add value.

If I were you I'd be excited about the opportunity.
TerryB6 (Oklahoma)
Posts: 38
Posted:
How would I go about getting control of past records? Just draft a demand letter, or hire an attorney? The only bills that I know of that are reoccurring are: streetlights - 500/mo., mowing service - 1700/mo., and water - 15/mo. Still have some dues unpaid. Most are wanting to work on paying this out due to jobs, increased expenses, etc.

Should fines, penalties and covenant enforcement be a priority this early in the ballgame?

Thank you for responding...
MelissaP1 (Alabama)
Posts: 13,836
Posted:
You may not get more records than you already got. Not sure how much detail your looking for exactly. We only got a collections report which we kept private amongst the Board members and an Expense report. In addition you may have the meeting notes from the last meeting. That's about all the necessary records you may have besides contract agreements.

I would suggest hiring an accounting firm. That is what we had. We also had a 2 signature system set up. Which our accountant who wrote the checks signed and 2 assigned board officers. In your case, maybe just getting the accounting firm to be the second signer may help you out until things get straightened out. The accounting firm isn't exactly a Management company. However, they will keep track of collecting/spending the money and filing taxes. You will have to budget for one. Their duties may take the place of the Treasurer but you still need a Treasurer position. So maybe your Treasurer will be the liason between the accountant on giving reports to the board. The accounting firm is to do whatever the board decides on.

Make sure you have the latest and greatest CC&R's, by-laws, ACC, and Articles of Incorporation paperwork. Bring them to every meeting. NEVER EVER AGREE TO ANYTHING WITHOUT CONSULTING THOSE DOCUMENTS. If someone asks you something you do not know the answer to, say you will come back to them after you consult the documents.

Remember a HOA is ONLY funded by it's members for it's members. If your going to hire a lawyer, it has to come from your HOA funds and be approved. The lawyer also will not represent your HOA on an individual basis but as the WHOLE. So it's best if you do hire a lawyer only one source communicates to them and not every individual on the board. A lawyer should act as a hired contractor to the board and not a dependency. Lawyers are needed to represent a HOA in court, file liens/foreclosures (in some states), and help draft/refile documents. Suing your HOA is suing yourself and your neighbors. It's best for the HOA to also avoid lawsuits to keep in the vein of lawyer advice.

Keep ignoring the facebook attacks and clean up things by making it more professional. Have some community events. I used to have a volunteer day for the people to come straighten things out. The HOA would pay for the supplies and the owners/members the labor. It made the place look better and got people to know one another. Fostering a community spirit takes alot of work and ideas. Which there are plenty of on here. Read some of the older posts.

Unless your documents allow you to fine for violations it is best to not use them. Your HOA also has to have a fine schedule and a clear definition of what and how much to fine for. It can't be random and has to be clearly defined that leaving a garbage can out on wednesday when garbage was picked up on monday is a $10 a day fine up to $100. A fine can not be used for the basis of liens in most states. So don't get ahead of yourself on the fines. It does not necessarily help promote good will.

Just keep your head up and a bottle of Vodka in the desk drawer. Don't fall for what everyone else says or does. Keep an even keil and head for the sunrise... After you straighten things out is when you get on your horse and ride into the sunset.

Former HOA President
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By TerryB6 on 03/23/2013 5:02 AM

Should fines, penalties and covenant enforcement be a priority this early in the ballgame?

From what I'm understanding, you are still trying to figure out if your finances are correct or not.
Don't bother with covenant enforcement unless someone brings the issue to you.
You need to spend the time on getting physical custody of the records, organizing those records and seeing what the actual status of the Association really is.

If there are only two left on the Board, you also need to appoint at least one more individual so there is a quorum when the Board meets.
TerryB6 (Oklahoma)
Posts: 38
Posted:
Regarding records, I was hoping for past invoices, bank statements and insurance policy. A mailbox key would've been nice also. I'm already looking for an accountant/firm. I think that should be my first priority, as well as processing incoming dues/payments. Our covenants do allow for fines and penalties, but previous administration really beat up on the residents with excessive use of that. Created a lot of anger in the community. There is no clear fine schedule, just general statements granting that right.

Again, thank you for your replies...
MelissaP1 (Alabama)
Posts: 13,836
Posted:
While your waiting on your past information start building your current/future records. Consider this a fresh start and start from where you are now. That may help get things in perspective. Not talking about forgiving debts owed. Just knowing how much money is on hand and who has your insurance policy.

May I recommend something that helped us out tremendously? I created a 6 month lien policy. If you collect your dues monthly then 6 months of unpaid dues should be the breaking point of making filing a lien worth it. It establishes with everyone you mean business by insituting this policy. (Although no time line exists in your documents just the ability to do it). Those who want to make payment arrangements will do it to avoid a lien. Those who are not interested will continue not paying. Plus those already behind I would give them a 3 month break due to this mess but let them know you will be liening on them. Liens may or may not require a lawyer to file. The cost is free to a few hundred dollars. So call up your local courthouse and find out what the process is in your state/county. A lien can only be for unpaid assessments (including unpaid special assessments), late charges, and some interested that is dictated in your documents. The legal costs will also factor in. There is another possible lien use but will discuss that later.

Believe me I have been in your shoes. Our former president was a con man who hired his friends and used the funds for his own means. He was a crooked scumbag. However, I did not focus on his issues. Instead I went out and got new bids from new people. I fired his lawncare/drug dealer and insituted a new contract bid policy. 3 bids for every contract with only 1 year increments. Anyone could submit a bid as long as licensed and insured.

These tips should help you get on sturdier ground. Which you have to learn to stand on and not move. Don't panic if someone threatens you with a lawsuit. Just tell them go ahead you will wait on the paperwork. It's cheaper to countersue than to bring on a lawsuit. Most of the time it is just hot air and as long as you follow the rules/laws, it won't matter if they bring it to court anyways.

Former HOA President
TerryB6 (Oklahoma)
Posts: 38
Posted:
The attorney I currently use said I'm protected by something called "Safe Harbor" (or "Haven"); basically acting in good faith to protect our investments. So now I'm working on building a database for residents in order to track dues, outstanding balances, etc.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Terry

As someone else suggested. Get the books in order and forget violations/fines until the financial situation is understood.

Not to simplfy but the first item is a simple spread sheet budget showing projected income versus projected expenses to even see if the place does (with all paying) even cover itself meaning you are not losing money. Start with projected then move on to actual.

Eventually you may have to ask/prove was prior financial management just inept or was there known illegal activity.

When you do address violations/fines consider something like a letter explaining that the new BOD intends to enforce Covenants, Bylaws, and Rules and Regulations but you realize in the past that things were done so helter skelter that you cannot trust any existing records. Thus in order to to be fair to all the BOD has decided to forgive all fines and move forward with proper, fair, and correct enforcement. Make it very, very clear this does not mean anything that was fined for or not fined for is approved.

Hope this helps.

TerryB6 (Oklahoma)
Posts: 38
Posted:
John, thank you for that bit of wisdom. As another possibility, it's been tried before, is dissolving the association. Would that be a worthwhile pursuit?
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Terry

I for one choose to live in an HOA for the reasons of having some control/say in keeping the standards/looks of this place as high as when I bought in. I would not want to lose any of that ability.

As far as your situation I do not know enoough to advise one way or another. I can say most of those I have seen suggest get rid of the association are those that I think want to do as they please thus they are probably the ones I trust the least.......LOL

JonD1
Posts: 2,350
Posted:
With 325 homes I would wonder if the property has an MC and if not why not?

Rebuilding records should not be all that difficult the bank should provide you access to past records, the vendors should have records of invocies, bills, payments etc, you should be able to piece together at least some idea of what went on.

As for creating a data base to give the owners a source of information my guess few have any real interest. If you wanted to develope one for simply record keeping that might actually serve a usefull purpose.

Seems to be 325 home owners who sat back and did little in the way of checking on the operations of their community.

As to doing away with the association my opinion a long, expensive, possible waste of time IF it were in fact proved to be legal and binding to all. IMO gaining control over the system in place is much more desirable than throwing the baby out with the bathwater.

IF you were to use the services of an MC most of this could be done as part of their contact including the fines, violations, and dues collection leaving the Board to oversee rather than actually perform these daily tasks.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By TerryB6 on 03/23/2013 8:14 AM
As another possibility, it's been tried before, is dissolving the association. Would that be a worthwhile pursuit?

Since you have covenants that require an association, you would have to amend the declaration.

You indicated that the association currently pays for street lighting and mowing. If you dissolve the association, you would need to deal with how the lighting will be paid. If the association owns any common areas, those need to be transferred to someone.

Since there are common amentities that the association is responsible for, dissolution would not be a good idea.
CarolR11 (Colorado)
Posts: 2,563
Posted:
I'm with Jon--get a MC. You may not need a PM onsite or 40 hours a week. Many MCs, at least around here, have "portfolio accounts" where they may manage, say, 4 properties, visit them regularly, meet with the board monthly, etc. Or, as with a condo I rented several years ago, the PM was on our premises 12 hours a week and at other properties on other days. this complex had a little office for her. Her central office took care of billing owners, fines, etc.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By CarolR11 on 03/23/2013 1:20 PM
I'm with Jon--get a MC. You may not need a PM onsite or 40 hours a week. Many MCs, at least around here, have "portfolio accounts" where they may manage, say, 4 properties, visit them regularly, meet with the board monthly, etc. Or, as with a condo I rented several years ago, the PM was on our premises 12 hours a week and at other properties on other days. this complex had a little office for her. Her central office took care of billing owners, fines, etc.

Good suggestion.
JeanneK3 (Maryland)
Posts: 562
Posted:
I also agree with John. Hire a management company and have the manager help you out of your mess. The manager will help you with elections and setting up your accounts. He/she will probably suggest an audit of your accounts. You need to get everything running smoothly for the future before you get too involved in what happened in the past.
Jeanne

TerryB6 (Oklahoma)
Posts: 38
Posted:
Thanks all. I hadn't thought of the common area ownership issue with regards to dissolution; good point. We had a management company at one point, very early on last year. When invoices for postage, etc. began rolling in, they fired them. One of the main problems seemed to be that it was cost prohibitive, when the cost per lot was weighed against our current dues structure.

I would welcome the assistance of an MC. Would a majority approval of the lot ownership be required to achieve this?

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