Community Member/Board Member Seeking Legal Advice to not comply with CC&R

Started by ChrystalM • 12 replies • 2082 views

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ChrystalM (Washington)
Posts: 22

Posted:

It has come to our attention that a community member/board member is seeking legal advice so as to state they do not have to comply with the CC&R/By-Laws. Is this possible? The reason they are using is that the CC&R's were built upon a template assembled by the builder and it is not specific enough to enforce.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ChrystalM on 06/01/2013 10:43 AM
It has come to our attention that a community member/board member is seeking legal advice so as to state they do not have to comply with the CC&R/By-Laws. Is this possible?

If your asking if a board member would be seeking legal advice on the governing documents, yes it's possible.

If your asking if it's possible that they are asking for specific advice, that too is possible.

Haven't you ever met people who shop for answers? If they don't like what they hear from one person they will keep asking variations of the question to others until they hear the answer they wanted to hear. Then, if the answer is wrong, they blame the person who told them.

Quote:

Posted By ChrystalM on 06/01/2013 10:43 AM

The reason they are using is that the CC&R's were built upon a template assembled by the builder and it is not specific enough to enforce.

All CC&Rs, Articles of Incorporation and Bylaws are built with a boiler plate template. It's up to the membership to rewrite those boiler plates, either initially before being filed or later through amendments, so they became as specific as they need to be.

Additionally, where the documents are vague, the Board should be adopting policy resolutions so there is a standard to cut away some of the vagueness.

Based only on what you provided, it sounds like there is a group, who happen to be sitting on the Board, who want to make changes to the document but don't want to go through the proper procedures to make them.

ChrystalM (Washington)
Posts: 22

Posted:

When it comes to asking for legal advice over documentation, I absolutely support it. I did it myself once I finally received my CC&R's and By-Laws.

The background on these documents are as follows: Our addition was completed in 2009. The builder foreclosed on the the addition and half of the homes in the addition were sold to the bank, which is whom we bought our home from. A third party administrator 'managed' the HOA until a formal board was enacted in 2011. Half of the residents (the half that were apart of the building process) received their CC&R's and By-Laws at closing while the rest of us who bought our homes from the bank were never informed of an HOA. Those of us who did not receive our documents are having to swallow the bitter pill that these documents are public documents and we should have known to look for them prior to our purchase.

We, the current board members, have been working for almost a year to go through the CC&R's to clear up these gray areas but have been halted several times by this particular board member who is now seeking legal advice to not have to comply with the CC&R. This particular board member has been under scrutiny as they have been non-compliant in completing their yard and have been on the edge of receiving warning letters. As this board member finds out they are about to receive a letter of non-compliance, they dig up any gray area in the CC&R that we are working on to avoid both the warning AND yard completion. Our third party administrator has not been giving us board members consistent and valuable feedback on this process so we, the other board members, are seeking legal advice on the the third party administrators actions as well as these action the other board member is taking to not comply with the CC&R's.

As a homeowner and if there were no HOA, I'm debating on contacting the city about their yard as it's a mess and a terrible eye soar. The fact that we live in an HOA leaves us exposed to complaints and lawsuits from fellow members for not upholding the CC&R's code for lawn completion.

CarolR11 (Colorado)
Posts: 2,563

Posted:

Say, Chrystal, how did this topic come to your attention? Was it discussed at a Board meeting? Or are there just rumors about it?

If WA is an "open meeting" state, the discussion of what it is the board wants changed should not be secret, but out in the "open" for homeowners to hear. If your state requires an open forum period at board meetings, you'd also have the chance to ask questions.

Do you know if the Board is asking the attorney for an interpretation or opinion about the existing CC&R wording? Or do you know for sure that the board wants to actually "change" the CC&Rs? Your CC&Rs themselves most likely state what's needed to change or amend your CC&Rs, which generally is quite a high % of homeowners' votes. (In our case 67%.)

As Tim points out, CC&Rs usually are fashioned from a template. The developer then directs whoever is writing them to add items that are unique to any particular HOA. In our case the developer's first management company wrote the CC&Rs, but I don't know if that's typical.

Can you tell us what it is that the Board wants to "clarify"? In other words, do you know what the Board wants to accomplish?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Since your on the Board, you know that no single Director or Officer should contact an attorney on behalf of the Association without the Board's approval. Is this individual obligating Association funds in seeking legal advice or is the individual spending their own money?

If the individual is obligating Association funds, was it with support of the Board or is the individual acting on their own?

If you, as a homeowner, would complain to the HOA why would you hesitate on complaining to the city? The city typically has more resources and authority (if needed) to remedy the issue quicker. Of course, if you make a complaint to the city, the owner may find out who made the complaint far easier than if it was made to the HOA. I hope that this isn't the reason your hesitating.

ChrystalM (Washington)
Posts: 22

Posted:

The topic of the member seeking advice for non-compliance was brought to us, the other board members, by the third party administrator who had an anonymous neighbor email them regarding this.

As for the open meeting over CC&R terminology change, we had our annual meeting at the end of April and brought it to the community members that we, the board, were looking to clear up the terms of, I believe, 3 focal points in the CC&R's that were vague and were hard to explain to residents who were not apart of the building process. We stated that in the coming months we would put together specific language and mail them to the community for a vote. We absolutely CAN NOT change any language without the vote of the community. Our community as a whole is very involved with the HOA and has been very satisfied with the research of the CC&R's.

There was no direction on adding items or clarify specific terms in the CC&R from the builder (once the builder sold the addition in 2009 to the bank, it took an additional 3 years to sell the rest of the homes; again, the first actual board was assembled in 2011 when we had enough homes sold to constitute enough members for a board by the third party administrator). We, the majority of the board, noticed a lot of vague descriptions and took it upon ourselves, with approval from the community, to research for defined terms. We are looking to clarify the terminology of what constitutes the 'completion of a unit' when a lot of us bought our homes completed and how would this term apply to future buyers in our community in relation to exterior alterations and yard completion. We are also looking for a fence detail that was never attached to the CC&R as well as a Residential Design Guideline. We also need clarification as to what constitutes as 'yard completion'. That seems to be open to interpretation by some residents.

I have been researching many other HOA's CC&R's, By-Laws, R&R's, Design Guidelines etc and we definitely have a long way to go but being halted at every turn is becoming frustrating.

ChrystalM (Washington)
Posts: 22

Posted:

There have been no community funds spent in legal research by any party and no legal consultation has taken place to make any decisions on behalf of the community.

ChrystalM (Washington)
Posts: 22

Posted:

In regards to not wishing to notify the city due to the possibility the neighbor found out I complained: No, I would not fear this.

I still believe in neighbor to neighbor communication. I don't seek the board or the city first, I honestly talk to my neighbors. I have a good relationship with all of my neighbors and was very disappointed when I found out that this particular neighbor has been spending more time trying to find ways to NOT complete their yard than they have actually doing anything positive to their yard. I believe in the idea of 'community' and its why I campaigned to be voted president. I head up our annual block party and put together improvement projects throughout the community.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I misunderstood your original post when I wrote first reply, Chrystal. I didn't know you were on the board and thought, instead, that somehow the no-complying director was acting with the Board. Also, you finished yours to Tim while I was writing mine. Anyway, I think you've straightened me out.

I'm very glad to see that you and the rest of the Board have been keeping owners informed and will continue to be open with all.

I do think that your Board needs to approve an HOA attorney reviewing your gray areas and plans for change. This will cost your HOA some money, but it really is best to see if your board's plans meet the legal requirements in your state.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

f/y/i:

most jurisdictions follow the 'international property maintenance code'

weeds (which includes grass!) are limited to 12" in height

there are NO requirements for 'aesthetic appeal'

sidewalks and paths must be level w/o tripping hazards

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Crystal

Once again a complaint, threatening legal action, etc. brings a BOD to all halt.

As someone said when threatened with legal action, simply say I look forward to seeing you in court. They most often go away.

Some docs say that one cannot be an "active/voting" member of the BOD if they are a party to a legal action against the association.

I say call this person out at the next BOD meeting. Be professional and polite, but do call them out to see where they are going.

JulianneW (California)
Posts: 25

Posted:

Quote:

Posted By TimB4 on 06/01/2013 10:52 AM

Oh for heaven's sake - the CC&Rs are governing documents no matter who wrote them, whether or not they're boilerplate, and no matter how long they've been in place. As long as they have all the right stamps and signatures, they're valid. The fact that the association hasn't seen fit to modify them in however-many-years isn't an excuse.

Why is it there's always at least one owner trying to get out of compliance? I don't get it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Why is it there's always at least one owner trying to get out of compliance? I don't get it.

There always will be a few. The question is why do some let them scare/intimidate the BOD?

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