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Subpoena for association records

Started by JohnH38 • 10 replies • 2936 views

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JohnH38 (South Carolina)
Posts: 100
Posted:
The Declarant (developer) of my POA wrote letters waving 5 assessment for owners that purchased 2 adjacent lots and later combined them. I read nothing in our Declaration allowing him to do so once the lots are purchased. We are a lot owner association of 143 lots, once bought a monthly assessment is due regardless if developed or left undeveloped.

All records can be examined by owners at the management's office (in theory), the BOD has instructed the manager not to show owners the letters/records in the past.

How easy is it to obtain a subpoena for them? These assessment wavers are material to the assessment of all and in my opinion are records of the association.

Danke, John

Myrtle Beach area, SC
MatthewW4 (Arizona)
Posts: 500
Posted:
John,

Subpoenas are normally issued as part of a court or administrative agency action. If you have a lawsuit it is fairly easy to obtain a civil subpoena that requires production of the documents. The other party may, however, file an objection and have the subpoena quashed.

Note that the person served with a subpoena for records does not necessarily have to be a party to a lawsuit. It is possible to file a lawsuit against someone, such as a friend, and subpoena the records as part of that action. Once you have the records, you can then dismiss the lawsuit. Keep in mind that the courts do not like this kind of bogus lawsuit and that may come to light if the the developer seeks to quash the subpoena.

It is not clear if you are still under the control of the developer.

What I understand is that out of 143 lots, five persons bought 2 lots and each of those double-lots were legally joined into one lot for each owner. Your belief is that because the lots were laid out on a plat that the owners of the double-sized lots should pay assessments for two lots even though legally they each have only one lot.

I will make no comment on the merits of your argument (if I have correctly stated it) other than to say you will need to do a lot of research to find similar cases. I just have no idea which side of the issue the courts are likely to come down on.

MatthewW4 (Arizona)
Posts: 500
Posted:
John,

After giving this some more thought, a number of questions arise.

Is there any language in the declaration that allows the declarant to either modify the declaration or to grant waivers of assessments? If the answer to both those questions is "No" then the declarant should not have granted any waivers and the owner-controlled board of directors should not be bound by those waivers.

BUT . . .

The declarant's waivers may not have been necessary, depending on a lot of circumstances.

If your declaration does not specify that a "lot" is one of those 143 laid out on the plat, then a "lot" may mean something else. If the buyers of double lots took the steps to legally record them as a single lot, they likely owe just a single assessment. On the other hand, if each lot is recorded and taxed as a single lot then they should pay two assessments.

Your board, with advice from its attorney, should make its own determination as to whether those five owners each have one lot or two and whether the declaration requires two assessments if two lots have been joined. If the declarant lacked authority to grant waivers the board is not bound by his actions.
JohnH38 (South Carolina)
Posts: 100
Posted:
Matt

« "Lot" shall mean any subdivided but unimproved parcel of land located within the Property which is intended for use as a site for a single family detached dwelling, as shown upon any recorded final subdivision map of any part of the Property. »

The final map w/ the County shows 143 such lots for the development.

Lots 28 and 29 were bought separately (2 deeds) then legally combined by the owner, the subsequent deed has one TMS and one PIN number, with the legal description of lots 28 & 29.

The Declarant then in a letter waved one of the assessment.

My request is for these letters (5) to see on which basis he did it (first step).

These letters are Association records that can be examined by owners. The BOD has denied my request to examine them, my only venue is by subpoena.

As ever, JOhn
CarolR11 (Colorado)
Posts: 2,563
Posted:
John38, did you make your request in writing to every member of the Board and your PM? Certified mail? It might help.

Although we're high rise condos, a few owners have combined two units into one unit. Our CC&Rs anticipated this possibility and specifically states that such owners pay two assessments--one for each unit or "lot."
JohnH38 (South Carolina)
Posts: 100
Posted:
Carol

I'm in SC ... covenants are not as "specific" here like where I lived in San Diego. It is why I had my attorney request copies of the "wavers" from the property manager, and if he doesn't comply serve him with a subpoena.

First step, find the Declarant rationale for the wavers!

As ever, John

MatthewW4 (Arizona)
Posts: 500
Posted:
Quote:
Posted By JohnH38 on 06/20/2013 12:08 PM

« "Lot" shall mean any subdivided but unimproved parcel of land located within the Property which is intended for use as a site for a single family detached dwelling, as shown upon any recorded final subdivision map of any part of the Property. »

The final map w/ the County shows 143 such lots for the development.

John,

On my first reading of how a lot is defined I agreed with your interpretation. But the more I read it, the less favor I find with that.

The problem is that the declaration does not refer to any specific map. By that, I mean it does not reference the map recorded on page X of book Y. Instead, it refers to “any recorded final subdivision map of any part of the Property.”

You have a map showing 143 lots. How do you know that it is the final map? If the developer allowed lots to be joined, there may be a map filed later than the one you have. A surveyor’s recorded map of the joined lots may qualify as a “final subdivision map of any part of the Property.” The “final map” does not have to lay out the entire subdivision, just some small part of it.

JohnH38 (South Carolina)
Posts: 100
Posted:
Matt

The final plat is that recorded by the County upon approval of the PDD, can't be changed unless a new PDD is submitted. Any owner can combine 2 or more lots as long as they are they share even 1" of property line for the purpose of consolidating the property tax bill. The developer has no say whatsoever on the matter. Same as with condos or farms like Carol explained, vide infra.

JOhn
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Okay let's approach this issue from another standpoint... Why can you all not change your documents to reflect now you have 142 lots instead of 143? Seems to be the best option here. Is there an issue where this change can not be adopted in and no more combining of lots allowed?

However, if you do this reduction the HOA dues still have to be contributed to equally amongst ALL the members. (Unless your rules say otherwise). So now you basically split the costs amongst 142 lots than the 143. If you do the math that will now increase the dues of EVERY member a few dollars. Which is probably the best solution considering if these people sale this double lot somehow in the future are you going to change the membership number again?

Just suck it up and do some other solution. It's much cheaper in the end than taking this to court and gives you all a solid resolution...
Former HOA President
JohnH38 (South Carolina)
Posts: 100
Posted:
Melissa

At this stage I simply want to examine what the developer's rationale/right is for waving 5 assessments.

Thank for sharing your perspective, JOhn
MelissaP1 (Alabama)
Posts: 13,836
Posted:
What does it matter? Your NOT owner run. It's up to the developer to decide. If he wants to forgive money coming into his pocket then let him. Just make sure at transition time when it becomes your pockets that it is established that it is now 142 lots ALTOGETHER being turned over and not the 143. Make sure the developer follows through with all the proper documentation to reduce this number in the HOA documents. Which is probably just an oversite right now. Like the oversite you are all going to do when the developer turns over the HOA to you and you don't remove all his references in the documents.
Former HOA President

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